UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16 OR 15D-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Dated as of January 16, 2003
NETIA HOLDINGS S.A.
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(Translation of registrant's name into English)
UL. POLECZKI 13
02-822 WARSAW, POLAND
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(Address of principal executive office)
[Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.]
Form 20-F |X| Form 40-F |_|
[Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.] Yes |_| No |X|
EXPLANATORY NOTE
Attached are the following items:
1. Press Release, dated January 15, 2003.
2. Press Release, dated January 15, 2003.
3. Resolutions adopted by the Extraordinary General Meeting of Shareholders on
January 15, 2003. In accordance with the Polish law, these resolutions were
annexed to the press release disseminated in Poland on January 15, 2003 in
connection with the Extraordinary General Meeting of Shareholders.
4. Curriculum vitae of new members of the supervisory board. In accordance
with the Polish law, these curriculum vitae were annexed to the press
releases attached hereto as disseminated in Poland on January 15, 2003.
This current report on Form 6-K is hereby incorporated by reference into our
Registration Statement on Form F-3 filed with the Securities and Exchange
Commission on May 9, 2001 (File No. 333-13480).
FOR IMMEDIATE RELEASE
- ---------------------
Contact: Anna Kuchnio (IR)
+48-22-330-2061
Jolanta Ciesielska (Media)
+48-22-330-2407
Netia
- or -
Alexandra Jones
Taylor Rafferty, London
+44-(0)20-7936-0400
- or -
Jeff Zelkowitz
Taylor Rafferty, New York
212-889-4350
CHANGES OF THE COMPOSITION OF NETIA HOLDINGS' SUPERVISORY BOARD
---------------------------------------------------------------
WARSAW, Poland - January 15, 2003 - Netia Holdings S.A. ("Netia") (WSE: NET),
Poland's largest alternative provider of fixed-line telecommunications services
(in terms of value of generated revenues), today announced that its management
board received from TeliaSonera AB (publ.) (previously Telia AB publ.)
("TeliaSonera") and EM Warburg Pincus ("Warburg") declarations with respect to
changes in the composition of Netia's supervisory board made in accordance with
Netia's Statute. The following changes of the composition of Netia's supervisory
board were made:
TeliaSonera dismissed Charlotte Grette, as of January 14, 2003 as member of
Netia's supervisory board. TeliaSonera also dismissed Jan Henrik Ahrnell and
Hans Tuvehjelm, as of the date of the registration by the Polish court of the
changes of Netia's Statute to be adopted by the Extraordinary General Meeting of
Shareholders to be held on January 15, 2003 as members of Netia's supervisory
board.
As of January 15, 2003, Warburg dismissed Roberto Italia as member of Netia's
supervisory board.
As of January 15, 2003, TeliaSonera appointed Nicholas N. Cournoyer as member of
the supervisory board who will replace Morgan Ekberg as chairman of Netia's
supervisory board. TeliaSonera re-appointed Morgan Ekberg as member of Netia's
supervisory board.
As of January 15, 2003, Warburg appointed Ewa Maria Robertson as member of
Netia's supervisory board.
1
As a result of these changes Netia's supervisory board currently consists of the
following 10 members: Nicholas N. Cournoyer (chairman of the supervisory board),
Morgan Ekberg, Jan Guz, Donald Mucha, Przemys(3)aw Jaronski, David Oertle,
Andrzej Radziminski, Ewa Maria Robertson, Jan Henrik Ahrnell and Hans Tuvehjelm.
As of the date of the registration by the Polish court of the changes of Netia's
Statute to be adopted by the Extraordinary General Meeting of Shareholders on
January 15, 2003, Jan Henrik Ahrnell, and Hans Tuvehjelm will cease to be
members of Netia's supervisory board.
In accordance with the schedule of Netia's Extraordinary General Meeting of
Shareholders to be held on January 15, 2003, the Extraordinary General Meeting
of Shareholders may adopt resolutions on further changes of the composition of
Netia's supervisory board.
Some of the information contained in this news release contains forward-looking
statements. Readers are cautioned that any such forward-looking statements are
not guarantees of future performance and involve risks and uncertainties, and
that actual results may differ materially from those in the forward-looking
statements as a result of various factors. For a more detailed description of
these risks and factors, please see Netia's filings with the Securities and
Exchange Commission, including its Annual Report on Form 20-F filed with the
Commission on March 28, 2002, its Current Report on Form 6-K filed with the
Commission on April 3, 2002, its Current Reports on Forms 6-K filed with the
Commission on May 6, 2002, its Current Report on Form 6-K filed with the
Commission on May 7, 2002, its Current Report on Form 6-K filed with the
Commission on May 20, 2002, its Current Report on Form 6-K filed with the
Commission on May 24, 2002, its Current Report on Form 6-K filed with the
Commission on June 28, 2002, its Current Report on Form 6-K filed with the
Commission on July 2, 2002, its Current Report on Form 6-K filed with the
Commission on July 31, 2002, and its Current Report on Form 6-K filed with the
Commission on August 2, 2002, its Current Reports on Form 6-K filed with the
Commission on August 6, 2002, its Current Report on Form 6-K filed with the
Commission on August 9, 2002, its Current Report on Form 6-K filed with the
Commission on August 15, 2002 its Current Report on Form 6-K filed with the
Commission on August 16, 2002, its Current Report on Form 6-K filed with the
Commission on August 28, 2002, its Current Report on Form 6-K filed with the
Commission on August 30, 2002, its Current Report on Form 6-K filed with the
Commission on September 16, 2002, its Current Report on Form 6-K filed with the
Commission on September 20, 2002, its Current Report on Form 6-K filed with the
Commission on September 24, 2002, its Current Report on Form 6-K filed with the
Commission on October 1, 2002, its Current Report on Form 6-K filed with the
Commission on October 15, 2002, its Current Report on Form 6-K filed with the
Commission on October 17, 2002, its Current Report on Form 6-K filed with the
Commission on October 22, 2002, its Current Report on Form 6-K filed with the
Commission on October 25, 2002, its Current Report on Form 6-K filed with the
Commission on November 5, 2002, its Current Report on Form 6-K filed with the
Commission on November 5, 2002, its Current Report on Form 6-K filed with the
Commission on November 6, 2002, its Current Report on Form 6-K filed with the
Commission on November 18, 2002 , its Current Report on Form 6-K filed with the
Commission on November 21, 2002, its Current Reports on Form 6-K filed with the
Commission on December 3, 2002, its Current Reports on Form 6-K filed with the
Commission on December 10, 2002, its Current Report on Form 6-K filed with the
Commission on December 23, 2002 and its Current Report on Form 6-K filed with
the Commission on January 8, 2003. Netia undertakes no obligation to publicly
update or revise any forward-looking statements.
# # #
2
FOR IMMEDIATE RELEASE
- ---------------------
Contact: Anna Kuchnio (IR)
+48-22-330-2061
Jolanta Ciesielska (Media)
+48-22-330-2407
Netia
- or -
Alexandra Jones
Taylor Rafferty, London
+44-(0)20-7936-0400
- or -
Jeff Zelkowitz
Taylor Rafferty, New York
212-889-4350
NETIA HOLDINGS S.A. HOLDS EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
-----------------------------------------------------------------------
WARSAW, Poland - January 15, 2003 - Netia Holdings S.A. ("Netia") (WSE: NET),
Poland's largest alternative provider of fixed-line telecommunications services
(in terms of value of generated revenues), today announced that the
Extraordinary General Meeting of Shareholders held today adopted resolutions on
(i) changes of Netia's Statute, (ii) changes of the composition of Netia's
supervisory board, (iii) rules regulating compensation of members of Netia's
supervisory board, and (iv) establishing security interests over Netia's assets
in connection with EUR 50 million Senior Secured Notes due 2008 issued by
Netia's Dutch subsidiary, Netia Holdings B.V. These resolutions were adopted in
connection with the on-going restructuring of the Netia group companies.
Pursuant to the resolution of the Extraordinary General Meeting of Shareholders
held on January 15, 2003, David Oertle, Donald Mucha and Jan Guz were dismissed
as members of Netia's supervisory board as of January 15, 2003. Pursuant to the
resolution of the Extraordinary General Meeting of Shareholders held on January
15, 2003, Przemyslaw Jaronski was dismissed as a member of Netia's supervisory
board as of the date of the registration by the Polish court of changes to
Netia's statutes adopted by the Extraordinary General Meeting of Shareholders
held on January 15, 2003.
Pursuant to the resolution of the Extraordinary General Meeting of Shareholders
held on January 15, 2003, Jaroslaw Bauc, Andrzej Michal Wiercinski and Richard
James Moon were appointed members of Netia's supervisory board.
As a result of these changes Netia's supervisory board currently consists of the
following 10 members: Nicholas N. Cournoyer (Chairman of the supervisory board),
Jaroslaw Bauc, Morgan Ekberg, Richard James Moon, Andrzej Radziminski, Ewa Maria
Robertson, Andrzej Michal Wiercinski, Jan Henrik Ahrnell, Przemyslaw Jaronski
and Hans Tuvehjelm. As of the date of the registration by the Polish court of
the changes to Netia's Statute adopted by the Extraordinary General Meeting of
1
Shareholders on January 15, 2003, Jan Henrik Ahrnell, Przemyslaw Jaronski and
Hans Tuvehjelm will cease to be members of Netia's supervisory board.
One of the minority shareholders formally objected to all resolutions of the
Extraordinary General Meeting of Shareholders that related to dismissal and
appointment of Netia's supervisory board members.
One of the minority shareholders formally objected to the resolution of the
Extraordinary General Meeting of Shareholders establishing security interest
over the entire enterprise of Netia.
Some of the information contained in this news release contains forward-looking
statements. Readers are cautioned that any such forward-looking statements are
not guarantees of future performance and involve risks and uncertainties, and
that actual results may differ materially from those in the forward-looking
statements as a result of various factors. For a more detailed description of
these risks and factors, please see Netia's filings with the Securities and
Exchange Commission, including its Annual Report on Form 20-F filed with the
Commission on March 28, 2002, its Current Report on Form 6-K filed with the
Commission on April 3, 2002, its Current Reports on Forms 6-K filed with the
Commission on May 6, 2002, its Current Report on Form 6-K filed with the
Commission on May 7, 2002, its Current Report on Form 6-K filed with the
Commission on May 20, 2002, its Current Report on Form 6-K filed with the
Commission on May 24, 2002, its Current Report on Form 6-K filed with the
Commission on June 28, 2002, its Current Report on Form 6-K filed with the
Commission on July 2, 2002, its Current Report on Form 6-K filed with the
Commission on July 31, 2002, and its Current Report on Form 6-K filed with the
Commission on August 2, 2002, its Current Reports on Form 6-K filed with the
Commission on August 6, 2002, its Current Report on Form 6-K filed with the
Commission on August 9, 2002, its Current Report on Form 6-K filed with the
Commission on August 15, 2002 its Current Report on Form 6-K filed with the
Commission on August 16, 2002, its Current Report on Form 6-K filed with the
Commission on August 28, 2002, its Current Report on Form 6-K filed with the
Commission on August 30, 2002, its Current Report on Form 6-K filed with the
Commission on September 16, 2002, its Current Report on Form 6-K filed with the
Commission on September 20, 2002, its Current Report on Form 6-K filed with the
Commission on September 24, 2002, its Current Report on Form 6-K filed with the
Commission on October 1, 2002, its Current Report on Form 6-K filed with the
Commission on October 15, 2002, its Current Report on Form 6-K filed with the
Commission on October 17, 2002, its Current Report on Form 6-K filed with the
Commission on October 22, 2002, its Current Report on Form 6-K filed with the
Commission on October 25, 2002, its Current Report on Form 6-K filed with the
Commission on November 5, 2002, its Current Report on Form 6-K filed with the
Commission on November 5, 2002, its Current Report on Form 6-K filed with the
Commission on November 6, 2002, its Current Report on Form 6-K filed with the
Commission on November 18, 2002 , its Current Report on Form 6-K filed with the
Commission on November 21, 2002, its Current Reports on Form 6-K filed with the
Commission on December 3, 2002, its Current Reports on Form 6-K filed with the
Commission on December 10, 2002, its Current Report on Form 6-K filed with the
Commission on December 23, 2002 and its Current Report on Form 6-K filed with
the Commission on January 8, 2003. Netia undertakes no obligation to publicly
update or revise any forward-looking statements.
# # #
2
RESOLUTION NO. -[_]
OF THE EXTRAORDINARY GENERAL SHAREHOLDERS' MEETING OF
NETIA HOLDINGS S.A.
DATED JANUARY 15, 2003
concerning the changes in the Company's Statute
The Extraordinary Shareholders' Meeting hereby deletes ss. 5, 5A, 5B,6 and
ss.12-22 in their entirety and adopts the following wording of ss. 5, 5A, 5B,6
and ss.12-21:
"SS. 5
The share capital amounts to not more than PLN 349,101,912 (say: three hundred
and forty-nine million one hundred and one thousand nine hundred and twelve
zlotys) and is divided into not more than 349,101,912 (say: three hundred and
forty-nine million one hundred and one thousand nine hundred and twelve) shares
of PLN 1.00 (say: one zloty) each.
The shares of the company are divided into the following series:
a) 5,000 ordinary registered series A shares;
b) 1,000 privileged registered series A1 shares;
c) 3,727,340 ordinary registered series B shares;
d) 17,256,855 ordinary bearer series C shares;
e) 3,977 ordinary bearer series C1 shares;
f) 5,500,000 ordinary bearer series D shares;
g) 425,000 ordinary bearer series E shares;
h) 2,250,000 ordinary bearer series F shares;
i) 2,250,000 ordinary bearer series G shares;
j) up to 317,682,740 ordinary bearer series H shares.
The Management Board is empowered to lodge a statement in the form of a notarial
deed describing the level of share capital subscribed for in connection with the
Series H share issue on the basis of article 431 para. 7 in connection with
article 310 para. 2 of the Commercial Companies Code.
SS. 5A
1. The Management Board shall be authorized to increase the share
capital of the Company by issuance of new shares of the Company of
total nominal value not exceeding PLN 18,373,785 (eighteen million,
three hundred and seventy-three thousand, seven hundred and
eighty-five Polish zlotys), by issue of one tranche of ordinary
bearer "I" Series shares of the Company (the authorized capital). The
authorization of the Management Board of the Company to increase the
share capital of the Company and to issue new shares within the limit
set forth above shall expire on 1st January 2005.
2. The increase of the share capital by the Management Board up to the
amount set forth in ss. 5A Clause 1 of the Company's Statute as well
as the detailed conditions of such increase as set out in ss. 5A
Clause 4 of the Company's Statute below shall require the approval of
the Supervisory Board (undertaken by means of a Supervisory Board
resolution with at least 4 (four) members of the Supervisory Board
voting in favour).
3. Upon the approval of the Supervisory Board (undertaken by means of a
Supervisory Board resolution with at least 4 (four) members of the
Supervisory Board voting in favour), the Management Board is
authorised to limit or exclude the pre-emptive rights of the
Company's Shareholders with respect to the Company's shares to be
issued within the limits set forth in ss. 5A section 1 of the
Company's Statute.
4. Subject to ss. 5A Clause 2) above, the Management Board shall
determine specific terms and conditions of the issue of the shares of
the Company, within the limits provided in ss. 5A Clause 1 of the
Company's Statute, in particular:
a) number of shares, which shall be issued,
b) issue price of the shares,
c) term of opening and closing of subscription,
d) specific terms of allocation of the shares,
e) shall conclude agreements with entities entitled to
organize subscription for shares and shall specify places
and terms of the subscription,
f) shall conclude agreements, both with and without
consideration, for underwriting the subscription for the
shares, in particular, firm underwriting and stand-by
underwriting agreements.
SS. 5B
1. The conditional share capital of the Company amounts up to PLN
83,222,437 (eighty three million, two hundred and twenty two thousand
and four hundred and thirty seven) and includes up to 64,848,652
(sixty four million, eight hundred and forty eight thousand and six
hundred fifty two) ordinary bearer series "J" shares and up to
18,373,785 (eighteen million, three hundred seventy three thousand
and seven hundred eighty five) ordinary bearer shares series "K".
2. The owners of series "J" and "K" shares shall participate in
dividends payable by the Company, provided that respectively series
"J" shares and series "K" shares are issued to the Shareholders of
the Company on or before the record day for the dividend payments set
forth in a resolution of the Ordinary General Shareholders' Meeting.
3. The pre-emptive rights of the Company's current Shareholders with
respect to series "J" shares and series "K" shares shall be excluded.
4. The right to acquire:
a) up to 64,848,652 (sixty four million, eight hundred and
forty eight thousand and six hundred fifty two) ordinary
bearer series "J" shares shall be granted to: (i) holders
of bonds with the priority right to acquire shares issued
by the Company based on Resolution No. 2 of the General
Shareholders' Meeting of April 4, 2002 (the "BONDS"), (ii)
the holders of the right to acquire shares (warrant) upon
their separation from the Bonds and introduction to
trading; and
b) up to 18,373,785 (eighteen million, three hundred seventy
three thousand and seven hundred eighty five) ordinary
bearer series "K" shares shall be granted to the
employees, consultants, and board members of the Company
and its subsidiaries pursuant to a performance stock
option plan to be adopted by the Company's Supervisory
Board for the Netia Group; this right may be implemented
by executing the priority right to subscribe for the
shares (warrant) attached to the Bonds.
5. The priority right to acquire series "J" shares (warrant) shall have
a duration of:
a) two years from the date of the Bonds' issue with respect
to 32,424,326 (thirty two million, four hundred and twenty
four thousand, three hundred and twenty six) ordinary
bearer series "J" shares; and
b) three years from the date of the Bonds' issue with respect
to 32,424,326 (thirty two million, four hundred and twenty
four thousand, three hundred and twenty six) ordinary
bearer series "J" shares.
6. The priority right to acquire series "K" shares (warrant) may be
executed not later than on December 31, 2007, unless, subject to the
Supervisory Board's approval, the Management Board will shorten the
period for the execution of the priority right to acquire series "K"
shares (warrant) pursuant to a performance stock option plan to be
adopted by the Company's Supervisory Board for the Netia Group.
7. Subject to: (i) the provisions of the performance stock option plan
to be adopted by the Company's Supervisory Board for the Netia Group,
(ii) the provisions of Resolution No. 2 of the General Shareholders'
Meeting of April 4, 2002 concerning the Bonds' issue with the
priority right to acquire shares, as well as the detailed terms and
conditions of the Bonds' issue set forth on the basis of that
Resolution and (iii) the approval of the Company's Supervisory Board,
the Company's Management Board, is authorised to:
a) determine the detailed terms and conditions for
subscribing for series "J" and "K" shares and the division
of series "J" and "K" shares into tranches;
b) determine the issue prices of series "J" and "K" shares
separately for each tranche;
c) execute agreements with entities authorized to accept
subscriptions for shares and to determine the places and
dates of the subscription for series "J" and "K" shares;
d) sign agreements, both paid and free of charge, in order to
secure the success of the subscription for series "K"
shares for the benefit of the entities referred to in ss.
5B section 4.b) of the Company's Statute and, in
particular, trust deed and/or any standby or hard
commitment underwriting agreement or agreements.
8. The purpose of establishing the conditional share capital is to:
a) grant the right to acquire the new issue of the Company's
shares to those Company Shareholders who will acquire the
Bonds with the priority right to acquire series "J" shares
issued pursuant to Resolution No. 2 of the General
Shareholders' Meeting of April 4, 2002, or for whose
benefit such Bonds will be acquired; and
b) grant the right to acquire series "K" shares to the
employees, consultants and board members of the Company
and its subsidiaries who will be entitled to acquire such
shares pursuant to the performance stock option plan to be
adopted by the Company's Supervisory Board for the Netia
Group.
SS. 6
1. Shares of the Company may be registered shares and bearer shares.
2. Bearer shares may not be transformed into registered shares.
3. The privileged registered series A1 shares shall give their holders
rights as defined in ss. 15.2 of the Statute. The transfer of any
privileged registered series A1 shares shall result in the loss of
privileges referred to in ss. 15.2 of this Statute. Conversion of
registered series A1 shares to bearer shares is forbidden.
SS. 12
1. Unless the provisions of the Commercial Companies Code or this
Statute provide otherwise, resolutions of the General Shareholders'
Meeting shall be adopted by an absolute majority of votes cast
(abstentions shall be counted as votes cast).
2. Resolutions on a Company merger, Company dissolution or transfer of
the enterprise of the Company or transfer of a material part thereof
shall be adopted by a majority of 3/4 of the votes cast.
3. Resolutions on the withdrawal of the Company's shares from public
trading or on de-listing of the Company's shares from the Warsaw
Stock Exchange or on a merger having the same consequences, shall be
adopted by a majority of 4/5 of the votes cast. Those voting must
represent at least 1/2 of the Company's share capital.
SS. 13
1. Resolutions of the General Shareholders' Meeting shall be required in
matters provided for in the Commercial Companies Code, and in
particular regarding decisions on the division and distribution of
profit. No approval of the General Shareholders' Meeting is required
for the purchase or sale of real estate or share in real estate,
without limitations upon the value of such transaction.
2. The Management Board shall submit the proposed resolutions of the
General Assembly of Shareholders for a prior opinion of the
Supervisory Board of the Company. Draft proposed resolutions shall be
delivered to the members of the Supervisory Board not later than 10
(ten) days prior to the date of the General Assembly of Shareholders.
If the Supervisory Board fails to give its opinion on any proposed
resolution 1 (one) day before the day of the General Assembly of
Shareholders, it shall be deemed that no opinion has been given by
the Supervisory Board. A negative opinion or the lack of an opinion
of the Supervisory Board shall not be an obstacle to adoption of such
resolution by the General Assembly of Shareholders.
SS. 14
1. The Shareholders may participate in the General Assembly of
Shareholders and exercise their right to vote in person or by
proxies. Members of the Management Board of the Company and the
Company employees may not act as proxies at the General Assembly of
Shareholders.
2. The rules governing the operation of the Assembly of Shareholders
shall be specified in the By-laws of the Shareholders' General
Assembly, which shall be approved by the General Assembly of
Shareholders.
SS. 15
1. The Supervisory Board shall consist of up to 7 (seven) members.
Except as otherwise provided in this Section, members of the
Supervisory Board shall be elected and dismissed by the General
Assembly of Shareholders for a term of office of 5 (five) years.
2. 1 (one) member of the Supervisory Board shall be appointed and
dismissed by holders of series A1 shares; provided that, such
privilege has not terminated pursuant to ss. 6.3 above and, upon
termination, such member shall be elected by the General Assembly of
Shareholders and shall be an Independent Member.
3. At all times at least 2 (two) of the Supervisory Board members shall
be "independent" (the "INDEPENDENT MEMBER"). An "Independent Member"
is a person who: (i) is not an executive officer of the Company or
any of its subsidiaries or of any Affiliate of the Company or is not
a member of the immediate family (or has a similar relationship) with
any such person, (ii) does not have a business or professional
relationship with the Company or any of its subsidiaries that is
material to the Company or such person, (iii) does not have an
ongoing business or professional relationship with the Company or any
of its subsidiaries, whether or not material in an economic sense,
which involves continued dealings with management of the Company such
as the relationship between the Company and its investment bankers or
legal counsel, (iv) is not an employee of the Company or any of its
subsidiaries or of any Affiliate of the Company or is not a member of
the immediate family (or has a similar relationship) with any such
person, (v) is not an employee of any shareholder or any Affiliate of
any shareholder holding more than 5 (five) % of issued share capital
of the Company or any of its subsidiaries or of any Affiliate of the
Company or is not a member of the immediate family (or has a similar
relationship) with any such person or (vi) does not have a business
or professional relationship with any shareholder or any Affiliate of
any shareholder holding more than 5 (five) % of issued share capital
of the Company or any of its subsidiaries that could have significant
impact on the ability of such person to make impartial decisions.
In this Statute: "AFFILIATE" shall mean any firm, company or
corporation which, directly or indirectly, controls, is controlled by
or is under common control of the Company; "SUBSIDIARY" shall mean an
entity in which the Company holds more than 50% (fifty) of the voting
stock or has the right to appoint at least 50% (fifty) of the members
of the management board or supervisory board (or similar governing or
supervisory authority) of such entity; "EXECUTIVE OFFICER" shall mean
members of the Management Board of the Company, liquidators, chief
accountant of the Company, in-house legal counsel and all persons
responsible for managing the Company and reporting directly to the
Management Board.
4. The Chairman of the Supervisory Board shall be elected by the
Supervisory Board from amongst the members of the Supervisory Board
in a simple majority vote. The Chairman shall have the power to cast
the deciding vote in the event of a deadlock among the members of the
Supervisory Board. In addition, the Chairman shall have the right to
call and preside over meetings of the Supervisory Board and other
procedural rights normally associated with such office.
5. Meetings of the Supervisory Board shall be convened at least monthly
for the six month period following the registration of the series H
share increase and once every quarter thereafter. The Chairman shall
also convene meetings of the Supervisory Board at the written request
of the Management Board of the Company or any member of the
Supervisory Board.
6. The members of the Supervisory Board may be remunerated for
fulfilling their functions of Supervisory Board members. The General
Shareholders' Meeting should adopt Rules of Remunerating the
Supervisory Board's Members".
SS. 16
1. The competency of the Supervisory Board shall include general
supervision of the activities of the Company. Resolutions of the
Supervisory Board shall be required in matters provided for in the
Commercial Companies Code and Paragraph 3 of this Section.
2. Save as prescribed otherwise in this Statute all resolutions of the
Supervisory Board shall be undertaken by an absolute majority of
votes cast in favour of such resolution (abstentions shall be counted
as votes cast).
3. Subject to the provisions ofss.16.4 below, resolutions of the
Supervisory Board regarding the following matters shall require that
at least 4 (four) members of the Supervisory Board vote in favour:
a) presentation to the Company's General Assembly of
Shareholders of a written report on the results of the
Supervisory Board's examination of the Company's balance
sheet and the profit and loss statement;
b) presentation to the Company's General Assembly of
Shareholders of a written report on the results of the
Supervisory Board's examination of the report of the
Management Board and the recommendations of the Management
Board with respect to the distribution of profits or
coverage of losses;
c) the appointment and removal of the members of the
Management Board, and the issuance of by-laws for the
Management Board;
d) setting or changing the compensation for the members of the
Management Board and defining other terms and conditions of
their employment, and the setting and changing of any
incentive plan for the Management Board and other key
employees;
e) approval of business plans and budgets for the Company;
f) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, consent
to incurring or making loans or other indebtedness in
excess of US$100,000 on a single or a series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies;
g) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
authorization of capital expenditures, assumption of
obligations or commitments in excess of US$100,000 in a
single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies;
h) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
giving of any guarantee or indemnity with respect to the
obligations of liability of any other entity, which
guarantee or indemnity shall be in excess of US$100,000 in
a single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies;
i) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the sale
or acquisition of real estate for a purchase price
exceeding US$100,000 in a single or series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies;
j) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, consent
to the sale, lease, pledge, hypothecation encumbering or
transferring any of the Company's assets having a value in
excess of US$100,000 in a single or series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies, provided, however, that sales of
products and obsolete equipment in the ordinary course of
business will be subject to no restrictions;
k) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
making of any investment or funding of any amounts in or
with respect to any non-telecommunications related business
or operations of the Company (including, for this purpose,
Uni-Net Sp. z o.o. with registered seat in Warsaw), whether
under contractual arrangements existing at the time of such
investment or funding or otherwise;
l) consent to the commencement, settlement, assignment,
compromise or release of any claim of or against the
Company in excess of US $100,000 in a single or series of
related transactions or the equivalent amount in Polish
zlotys or other currencies;
m) bidding for any license or concession or agreeing to the
material modification of any existing license of the
Company or any subsidiary;
n) consent to acquiring shares of or investing in other
entities other than in existing subsidiaries of the
Company;
o) consent to the adoption of a performance stock option plan
in accordance with ss. 5B of this Statute;
p) appointment of the expert auditor to audit the Company's
financial statements;
r) the conclusion by the Company of any contracts with an
Affiliate (defined below). For the purposes of this point,
"AFFILIATE" shall mean (i) a member of the Management Board
or Supervisory Board or the cousin or relative of up to the
second degree of such member, (ii) a shareholder holding
shares entitling it to at least 5% of votes at the General
Meeting or (iii) an entity controlled by, controlling or
under common control with the aforementioned persons and
"control" shall mean the possibility of even indirect
influence over the management or business policy of the
controlled entity through holding shares with the right to
vote in such entity, a shareholders' agreement, an
agreement for official receivership of votes (umowa
syndykowania g(3)osow) or in any other similar manner, even
if not connected with a written agreement.
4. Resolutions of the Supervisory Board regarding the consent for the
Company to enter into the first credit facility following January
15th, 2003 in the amount equal to, or exceeding EUR 50 million (fifty
million) in a single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies shall
require that at least 5 (five) members of the Supervisory Board vote
in favour. Resolutions of the Supervisory Board regarding the consent
for the Company to enter into the all subsequent credit facilities
shall require that at least 4 (four) members of the Supervisory Board
vote in favour.
5. Supervisory Board resolutions on the matters described in section
16.3.q. above (the conclusion by the Company of a contract with an
Affiliate) shall require the approval of at least one of the
Independent Members.
SS. 17
1. Meetings of the Supervisory Board shall be convened by written
notices sent to each member of the Supervisory Board informing them
of the date, the time, the venue and the agenda, at least 7 (seven)
days prior to the planned meeting. Meetings of the Supervisory Board
may be held without formal convening if all the members of the
Supervisory Board agree to such a meeting and the proposed agenda.
2. Resolutions of the Supervisory Board may be undertaken in writing or
by means of direct communication media (such as telephone, video
conferencing) in a manner allowing mutual communication between all
the members of the Supervisory Board present. Resolutions adopted
during such conference shall be effective if the minutes including
such resolutions were signed by each member of the Supervisory Board
participating in such meeting. Members of the Supervisory Board may
also vote on Supervisory Board resolutions in writing via another
member of the Supervisory Board.
3. Resolutions of the Supervisory Board shall only be valid if a quorum
is present at such meeting. The quorum shall consist of a majority of
the total number of members of the Supervisory Board.
4. The rules governing the operation of the Supervisory Board shall be
specified in the By-laws of the Supervisory Board, which shall be
adopted by the Supervisory Board.
5. Reasonable out-of pocket expenses incurred by members of the
Supervisory Board in connection with attending meetings and
fulfilling other obligation as board members, shall be reimbursed by
the Company.
SS. 18
1. The Management Board of the Company shall consist up to 10 (ten)
members. The Supervisory Board shall decide on the number of
Management Board members.
2. The Management Board members shall be appointed and dismissed by the
Supervisory Board for a term of office of 5 (five) years.
3. The Management Board shall manage the activities of the Company,
shall adopt resolutions necessary for performance of tasks and shall
represent the Company before courts, authorities, offices and third
parties.
4. The Management Board shall handle the matters, which are not within
the exclusive competence of the General Assembly of Shareholders or
the Supervisory Board.
5. Resolutions of the Management Board shall be adopted by a simple
majority of votes.
6. Two members of the Management Board acting together or one member of
the Management Board acting together with a commercial proxy
(prokurent) shall be authorised to make declarations and to sign on
behalf of the Company.
7. Reasonable out-of-pocket expenses incurred by members of the
Management Board in connection with attending meetings and fulfilling
other obligation as board members, shall be reimbursed by the
Company.
8. The rules governing the operation of the Management Board shall be
specified in the By-laws of the Management Board, which shall be
approved by the Supervisory Board.
V. FINAL PROVISIONS
SS. 19
1. Liquidation and dissolution of the Company shall be undertaken in
cases provided for by law or pursuant to a resolution of the General
Assembly of Shareholders.
2. Liquidators shall be members of the Management Board unless the
General Assembly of Shareholders appoints other liquidators.
SS. 20
In any and all matters not provided for in this Statute, the provisions of the
Commercial Companies Code and other provisions of Polish law shall apply.
SS. 21
The Company was established by transformation into a joint stock company of
"R.P. Telekom" Spo(3)ka z ograniczon(1) odpowiedzialnooeci(1), the Shareholders
of which were the founders listed in Section 4."
RESOLUTION NO. [_]
OF THE EXTRAORDINARY GENERAL SHAREHOLDERS' MEETING OF
NETIA HOLDINGS S.A.
DATED JANUARY 15, 2003
concerning the adoption of the unified text of the Company's Statute
The Extraordinary Shareholders' Meeting hereby adopts the following unified text
of the Company's Statute:
"STATUTE OF
NETIA HOLDINGS S.A.
I. GENERAL PROVISIONS
SS. 1
The name of the Company shall be "Netia Holdings" Spo(3)ka Akcyjna. The Company
may use an abbreviation of its name: "NETIA HOLDINGS" S.A. The seat of the
Company shall be the Capital City of Warsaw.
SS. 2
The Company may establish divisions, branches, plants and representative offices
and other entities, and may also participate in other companies in Poland and
abroad.
SS. 3
The scope of activity of the Company shall be:
a) design, manufacture and use of internal (company internal
and other) telecommunication systems;
b) design and introduction of new telecommunication designs
and techniques;
c) provision of telecommunication services within the scope of
internal (company internal and other) telecommunication
systems;
d) manufacturing and leasing of telecommunication equipment;
e) conducting domestic trade;
f) conducting imports in connection with services offered by
the Company, the shareholders and partners;
g) conducting exports of services provided by the Company;
h) export and import of telecommunication equipment;
i) rendering telecommunication services;
j) export and import shall not include goods, the trade of
which requires a concession;
k) organizing and implementing commercial undertakings
individually or together with other entities, including
undertakings within the scope of construction for housing
purposes, including the sale, rental and management of
buildings and parts thereof;
l) undertaking land managing commercial ventures by means of
holdings and equity stakes held by the Company, including
granting loans and guarantees as part of the holding
structure;
m) granting loans and credits to the entities whose shares the
Company holds directly or indirectly.
SS. 4
The founders of the Company are:
1) INTERNATIONAL COMMUNICATION TECHNOLOGIES Inc., with its seat in Los
Angeles, USA;
2) GRUPA INWESTYCYJNA NYWIG Sp. z o.o., with its seat in Warsaw;
3) PROMACO Sp. z o.o., with its seat in Warsaw;
4) UNITRONEX CORP., with its seat in Wooddale, Ilinois, USA;
5) TOWARZYSTWO ROZWOJU TELEKOMUNIKACJI, with its seat in Warsaw;
6) METRONEX S.A., with its seat in Warsaw;
7) Andrzej Radziminski;
8) Aleksander Szwarc;
9) Donald Mucha;
10) Krzysztof Korba;
11) Jacek S(3)owakiewicz;
12) Marian Benda;
13) Janina Kopacka;
14) Leopold Benda;
15) Edward Jedrzejowicz;
16) Andrzej Wawrzenczak;
17) Ryszard Lewandowski;
18) Grzegorz Gorski;
19) Zbigniew Przybyszewski;
20) Bogus(3)aw Chmielewski;
21) Jan Drobiecki;
22) W(3)adys(3)aw Balinski;
23) Janusz B(3)aszczak;
24) Jerzy Dygdon;
25) Grzegorz Figlarz;
26) Tadeusz Gruszka;
27) Zbigniew Hayder;
28) Roman Jarocki;
29) Jerzy Kantorski;
30) Anna Kasowicz;
31) Marian Ko(3)osinski;
32) Janusz Krzysztofinski;
33) Zofia Ledwooe;
34) Andrzej Pi(1)tkowski;
35) Stanis(3)awa Sobieranska;
36) El?bieta Zandecka;
37) Andrzej Wadecki;
38) Frederic Henri Chapus.
II. SHARE CAPITAL AND SHARES
SS. 5
The share capital amounts to not more than PLN 349,101,912 (say: three hundred
and forty-nine million one hundred and one thousand nine hundred and twelve
zlotys) and is divided into not more than 349,101,912 (say: three hundred and
forty-nine million one hundred and one thousand nine hundred and twelve) shares
of PLN 1.00 (say: one zloty) each.
The shares of the company are divided into the following series:
a) 5,000 ordinary registered series A shares;
b) 1,000 privileged registered series A1 shares;
c) 3,727,340 ordinary registered series B shares;
d) 17,256,855 ordinary bearer series C shares;
e) 3,977 ordinary bearer series C1 shares;
f) 5,500,000 ordinary bearer series D shares;
g) 425,000 ordinary bearer series E shares;
h) 2,250,000 ordinary bearer series F shares;
i) 2,250,000 ordinary bearer series G shares;
j) up to 317,682,740 ordinary bearer series H shares.
The Management Board is empowered to lodge a statement in the form of a notarial
deed describing the level of share capital subscribed for in connection with the
Series H share issue on the basis of article 431 para. 7 in connection with
article 310 para. 2 of the Commercial Companies Code.
SS. 5A
1) The Management Board shall be authorized to increase the share
capital of the Company by issuance of new shares of the Company of
total nominal value not exceeding PLN 18,373,785 (eighteen million,
three hundred and seventy-three thousand, seven hundred and
eighty-five Polish zlotys), by issue of one tranche of ordinary
bearer "I" Series shares of the Company (the authorized capital). The
authorization of the Management Board of the Company to increase the
share capital of the Company and to issue new shares within the limit
set forth above shall expire on 1st January 2005.
2) The increase of the share capital by the Management Board up to the
amount set forth in ss. 5A Clause 1 of the Company's Statute as well
as the detailed conditions of such increase as set out in ss. 5A
Clause 4 of the Company's Statute below shall require the approval of
the Supervisory Board (undertaken by means of a Supervisory Board
resolution with at least 4 (four) members of the Supervisory Board
voting in favour).
3) Upon the approval of the Supervisory Board (undertaken by means of a
Supervisory Board resolution with at least 4 (four) members of the
Supervisory Board voting in favour), the Management Board is
authorised to limit or exclude the pre-emptive rights of the
Company's Shareholders with respect to the Company's shares to be
issued within the limits set forth in ss. 5A section 1 of the
Company's Statute.
4) Subject to ss.5A Clause 2) above, the Management Board shall
determine specific terms and conditions of the issue of the shares of
the Company, within the limits provided in ss.5A Clause 1 of the
Company's Statute, in particular:
a) number of shares, which shall be issued,
b) issue price of the shares,
c) term of opening and closing of subscription,
d) specific terms of allocation of the shares,
e) shall conclude agreements with entities entitled to
organize subscription for shares and shall specify places
and terms of the subscription,
f) shall conclude agreements, both with and without
consideration, for underwriting the subscription for the
shares, in particular, firm underwriting and stand-by
underwriting agreements.
SS. 5B
1. The conditional share capital of the Company amounts up to PLN
83,222,437 (eighty three million, two hundred and twenty two thousand
and four hundred and thirty seven) and includes up to 64,848,652
(sixty four million, eight hundred and forty eight thousand and six
hundred fifty two) ordinary bearer series "J" shares and up to
18,373,785 (eighteen million, three hundred seventy three thousand
and seven hundred eighty five) ordinary bearer shares series "K".
2. The owners of series "J" and "K" shares shall participate in
dividends payable by the Company, provided that respectively series
"J" shares and series "K" shares are issued to the Shareholders of
the Company on or before the record day for the dividend payments set
forth in a resolution of the Ordinary General Shareholders' Meeting.
3. The pre-emptive rights of the Company's current Shareholders with
respect to series "J" shares and series "K" shares shall be excluded.
4. The right to acquire:
a) up to 64,848,652 (sixty four million, eight hundred and
forty eight thousand and six hundred fifty two) ordinary
bearer series "J" shares shall be granted to: (i) holders
of bonds with the priority right to acquire shares issued
by the Company based on Resolution No. 2 of the General
Shareholders' Meeting of April 4, 2002 (the "Bonds"), (ii)
the holders of the right to acquire shares (warrant) upon
their separation from the Bonds and introduction to
trading; and
b) up to 18,373,785 (eighteen million, three hundred seventy
three thousand and seven hundred eighty five) ordinary
bearer series "K" shares shall be granted to the employees,
consultants, and board members of the Company and its
subsidiaries pursuant to a performance stock option plan to
be adopted by the Company's Supervisory Board for the Netia
Group; this right may be implemented by executing the
priority right to subscribe for the shares (warrant)
attached to the Bonds.
5. The priority right to acquire series "J" shares (warrant) shall have
a duration of:
a) two years from the date of the Bonds' issue with respect to
32,424,326 (thirty two million, four hundred and twenty
four thousand, three hundred and twenty six) ordinary
bearer series "J" shares; and
b) three years from the date of the Bonds' issue with respect
to 32,424,326 (thirty two million, four hundred and twenty
four thousand, three hundred and twenty six) ordinary
bearer series "J" shares.
6. The priority right to acquire series "K" shares (warrant) may be
executed not later than on December 31, 2007, unless, subject to the
Supervisory Board's approval, the Management Board will shorten the
period for the execution of the priority right to acquire series "K"
shares (warrant) pursuant to a performance stock option plan to be
adopted by the Company's Supervisory Board for the Netia Group.
7. Subject to: (i) the provisions of the performance stock option plan
to be adopted by the Company's Supervisory Board for the Netia Group,
(ii) the provisions of Resolution No. 2 of the General Shareholders'
Meeting of April 4, 2002 concerning the Bonds' issue with the
priority right to acquire shares, as well as the detailed terms and
conditions of the Bonds' issue set forth on the basis of that
Resolution and (iii) the approval of the Company's Supervisory Board,
the Company's Management Board, is authorised to:
a) determine the detailed terms and conditions for subscribing
for series "J" and "K" shares and the division of series
"J" and "K" shares into tranches;
b) determine the issue prices of series "J" and "K" shares
separately for each tranche;
c) execute agreements with entities authorized to accept
subscriptions for shares and to determine the places and
dates of the subscription for series "J" and "K" shares;
d) sign agreements, both paid and free of charge, in order to
secure the success of the subscription for series "K"
shares for the benefit of the entities referred to in ss.
5B section 4.b) of the Company's Statute and, in
particular, trust deed and/or any standby or hard
commitment underwriting agreement or agreements.
8. The purpose of establishing the conditional share capital is to:
a) grant the right to acquire the new issue of the Company's
shares to those Company Shareholders who will acquire the
Bonds with the priority right to acquire series "J" shares
issued pursuant to Resolution No. 2 of the General
Shareholders' Meeting of April 4, 2002, or for whose
benefit such Bonds will be acquired; and
b) grant the right to acquire series "K" shares to the
employees, consultants and board members of the Company and
its subsidiaries who will be entitled to acquire such
shares pursuant to the performance stock option plan to be
adopted by the Company's Supervisory Board for the Netia
Group.
SS. 6
1. Shares of the Company may be registered shares and bearer shares.
2. Bearer shares may not be transformed into registered shares.
3. The privileged registered series A1 shares shall give their holders
rights as defined in ss. 15.2 of the Statute. The transfer of any
privileged registered series A1 shares shall result in the loss of
privileges referred to in ss. 15.2 of this Statute. Conversion of
registered series A1 shares to bearer shares is forbidden.
SS. 7
The share capital may be increased by way of an issue of registered or bearer
shares against cash and in-kind contributions or by increasing the nominal value
of existing shares.
III. OTHER CAPITAL AND FUNDS
SS. 8
1. Besides the share capital the Company establishes the following
capital and funds:
1) the reserve capital;
2) the spare capital;
3) the employee social benefits fund.
2. By resolutions of the General Assembly of Shareholders other funds
may be established.
3. The Company may issue bonds, including convertible bonds and
securities within the scope allowed by law.
IV. COMPANY AUTHORITIES
SS. 9
The bodies of the Company shall be:
1. the General Assembly of Shareholders;
2. the Supervisory Board;
3. the Management Board.
SS. 10
The Management Board shall convene the ordinary General Assembly of Shareholders
not later than 6 (six) months following the end of the financial year.
SS. 11
The General Assembly of Shareholders shall be convened by way of an announcement
to the shareholders published in Monitor S(1)dowy i Gospodarczy.
SS. 12
1. Unless the provisions of the Commercial Companies Code or this
Statute provide otherwise, resolutions of the General Shareholders'
Meeting shall be adopted by an absolute majority of votes cast
(abstentions shall be counted as votes cast).
2. Resolutions on a Company merger, Company dissolution or transfer of
the enterprise of the Company or transfer of a material part thereof
shall be adopted by a majority of 3/4 of the votes cast.
3. Resolutions on the withdrawal of the Company's shares from public
trading or on de-listing of the Company's shares from the Warsaw
Stock Exchange or on a merger having the same consequences, shall be
adopted by a majority of 4/5 of the votes cast. Those voting must
represent at least 1/2 of the Company's share capital.
SS. 13
1. Resolutions of the General Shareholders' Meeting shall be required in
matters provided for in the Commercial Companies Code, and in
particular regarding decisions on the division and distribution of
profit. No approval of the General Shareholders' Meeting is required
for the purchase or sale of real estate or share in real estate,
without limitations upon the value of such transaction.
2. The Management Board shall submit the proposed resolutions of the
General Assembly of Shareholders for a prior opinion of the
Supervisory Board of the Company. Draft proposed resolutions shall be
delivered to the members of the Supervisory Board not later than 10
(ten) days prior to the date of the General Assembly of Shareholders.
If the Supervisory Board fails to give its opinion on any proposed
resolution 1 (one) day before the day of the General Assembly of
Shareholders, it shall be deemed that no opinion has been given by
the Supervisory Board. A negative opinion or the lack of an opinion
of the Supervisory Board shall not be an obstacle to adoption of such
resolution by the General Assembly of Shareholders.
SS. 14
1. The Shareholders may participate in the General Assembly of
Shareholders and exercise their right to vote in person or by
proxies. Members of the Management Board of the Company and the
Company employees may not act as proxies at the General Assembly of
Shareholders.
2. The rules governing the operation of the Assembly of Shareholders
shall be specified in the By-laws of the Shareholders' General
Assembly, which shall be approved by the General Assembly of
Shareholders.
SS. 15
1. The Supervisory Board shall consist of up to 7 (seven) members.
Except as otherwise provided in this Section, members of the
Supervisory Board shall be elected and dismissed by the General
Assembly of Shareholders for a term of office of 5 (five) years.
2. 1 (one) member of the Supervisory Board shall be appointed and
dismissed by holders of series A1 shares; provided that, such
privilege has not terminated pursuant to ss. 6.3 above and, upon
termination, such member shall be elected by the General Assembly of
Shareholders and shall be an Independent Member.
3. At all times at least 2 (two) of the Supervisory Board members shall
be "independent" (the "Independent Member"). An "Independent Member"
is a person who: (i) is not an executive officer of the Company or
any of its subsidiaries or of any Affiliate of the Company or is not
a member of the immediate family (or has a similar relationship) with
any such person, (ii) does not have a business or professional
relationship with the Company or any of its subsidiaries that is
material to the Company or such person, (iii) does not have an
ongoing business or professional relationship with the Company or any
of its subsidiaries, whether or not material in an economic sense,
which involves continued dealings with management of the Company such
as the relationship between the Company and its investment bankers or
legal counsel, (iv) is not an employee of the Company or any of its
subsidiaries or of any Affiliate of the Company or is not a member of
the immediate family (or has a similar relationship) with any such
person, (v) is not an employee of any shareholder or any Affiliate of
any shareholder holding more than 5 (five) % of issued share capital
of the Company or any of its subsidiaries or of any Affiliate of the
Company or is not a member of the immediate family (or has a similar
relationship) with any such person or (vi) does not have a business
or professional relationship with any shareholder or any Affiliate of
any shareholder holding more than 5 (five) % of issued share capital
of the Company or any of its subsidiaries that could have significant
impact on the ability of such person to make impartial decisions.
In this Statute: "Affiliate" shall mean any firm, company or
corporation which, directly or indirectly, controls, is controlled by
or is under common control of the Company; "Subsidiary" shall mean an
entity in which the Company holds more than 50% (fifty) of the voting
stock or has the right to appoint at least 50% (fifty) of the members
of the management board or supervisory board (or similar governing or
supervisory authority) of such entity; "Executive Officer" shall mean
members of the Management Board of the Company, liquidators, chief
accountant of the Company, in-house legal counsel and all persons
responsible for managing the Company and reporting directly to the
Management Board.
4. The Chairman of the Supervisory Board shall be elected by the
Supervisory Board from amongst the members of the Supervisory Board
in a simple majority vote. The Chairman shall have the power to cast
the deciding vote in the event of a deadlock among the members of the
Supervisory Board. In addition, the Chairman shall have the right to
call and preside over meetings of the Supervisory Board and other
procedural rights normally associated with such office.
5. Meetings of the Supervisory Board shall be convened at least monthly
for the six month period following the registration of the series H
share increase and once every quarter thereafter. The Chairman shall
also convene meetings of the Supervisory Board at the written request
of the Management Board of the Company or any member of the
Supervisory Board.
6. The members of the Supervisory Board may be remunerated for
fulfilling their functions of Supervisory Board members. The General
Shareholders' Meeting should adopt Rules of Remunerating the
Supervisory Board's Members".
SS. 16
1. The competency of the Supervisory Board shall include general
supervision of the activities of the Company. Resolutions of the
Supervisory Board shall be required in matters provided for in the
Commercial Companies Code and Paragraph 3 of this Section.
2. Save as prescribed otherwise in this Statute all resolutions of the
Supervisory Board shall be undertaken by an absolute majority of
votes cast in favour of such resolution (abstentions shall be counted
as votes cast).
3. Subject to the provisions ofss.16.4 below, resolutions of the
Supervisory Board regarding the following matters shall require that
at least 4 (four) members of the Supervisory Board vote in favour:
a) presentation to the Company's General Assembly of
Shareholders of a written report on the results of the
Supervisory Board's examination of the Company's balance
sheet and the profit and loss statement;
b) presentation to the Company's General Assembly of
Shareholders of a written report on the results of the
Supervisory Board's examination of the report of the
Management Board and the recommendations of the Management
Board with respect to the distribution of profits or
coverage of losses;
c) the appointment and removal of the members of the
Management Board, and the issuance of by-laws for the
Management Board;
d) setting or changing the compensation for the members of the
Management Board and defining other terms and conditions of
their employment, and the setting and changing of any
incentive plan for the Management Board and other key
employees;
e) approval of business plans and budgets for the Company;
f) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, consent
to incurring or making loans or other indebtedness in
excess of US$100,000 on a single or a series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies;
g) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
authorization of capital expenditures, assumption of
obligations or commitments in excess of US$100,000 in a
single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies;
h) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
giving of any guarantee or indemnity with respect to the
obligations of liability of any other entity, which
guarantee or indemnity shall be in excess of US$100,000 in
a single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies;
i) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the sale
or acquisition of real estate for a purchase price
exceeding US$100,000 in a single or series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies;
j) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, consent
to the sale, lease, pledge, hypothecation encumbering or
transferring any of the Company's assets having a value in
excess of US$100,000 in a single or series of related
transactions or the equivalent amount in Polish zlotys or
any other currencies, provided, however, that sales of
products and obsolete equipment in the ordinary course of
business will be subject to no restrictions;
k) unless provided in the most recent business plan or budget
of the Company approved by the Supervisory Board, the
making of any investment or funding of any amounts in or
with respect to any non-telecommunications related business
or operations of the Company (including, for this purpose,
Uni-Net Sp. z o.o. with registered seat in Warsaw), whether
under contractual arrangements existing at the time of such
investment or funding or otherwise;
l) consent to the commencement, settlement, assignment,
compromise or release of any claim of or against the
Company in excess of US $100,000 in a single or series of
related transactions or the equivalent amount in Polish
zlotys or other currencies;
m) bidding for any license or concession or agreeing to the
material modification of any existing license of the
Company or any subsidiary;
n) consent to acquiring shares of or investing in other
entities other than in existing subsidiaries of the
Company;
o) consent to the adoption of a performance stock option plan
in accordance with ss. 5B of this Statute;
p) appointment of the expert auditor to audit the Company's
financial statements;
r) the conclusion by the Company of any contracts with an
Affiliate (defined below). For the purposes of this point,
"Affiliate" shall mean (i) a member of the Management Board
or Supervisory Board or the cousin or relative of up to the
second degree of such member, (ii) a shareholder holding
shares entitling it to at least 5% of votes at the General
Meeting or (iii) an entity controlled by, controlling or
under common control with the aforementioned persons and
"control" shall mean the possibility of even indirect
influence over the management or business policy of the
controlled entity through holding shares with the right to
vote in such entity, a shareholders' agreement, an
agreement for official receivership of votes (umowa
syndykowania g(3)osow) or in any other similar manner, even
if not connected with a written agreement.
4. Resolutions of the Supervisory Board regarding the consent for the
Company to enter into the first credit facility following January
15th, 2003 in the amount equal to, or exceeding EUR 50 million (fifty
million) in a single or a series of related transactions or the
equivalent amount in Polish zlotys or any other currencies shall
require that at least 5 (five) members of the Supervisory Board vote
in favour. Resolutions of the Supervisory Board regarding the consent
for the Company to enter into the all subsequent credit facilities
shall require that at least 4 (four) members of the Supervisory Board
vote in favour.
5. Supervisory Board resolutions on the matters described in section
16.3.q. above (the conclusion by the Company of a contract with an
Affiliate) shall require the approval of at least one of the
Independent Members.
SS. 17
1. Meetings of the Supervisory Board shall be convened by written
notices sent to each member of the Supervisory Board informing them
of the date, the time, the venue and the agenda, at least 7 (seven)
days prior to the planned meeting. Meetings of the Supervisory Board
may be held without formal convening if all the members of the
Supervisory Board agree to such a meeting and the proposed agenda.
2. Resolutions of the Supervisory Board may be undertaken in writing or
by means of direct communication media (such as telephone, video
conferencing) in a manner allowing mutual communication between all
the members of the Supervisory Board present. Resolutions adopted
during such conference shall be effective if the minutes including
such resolutions were signed by each member of the Supervisory Board
participating in such meeting. Members of the Supervisory Board may
also vote on Supervisory Board resolutions in writing via another
member of the Supervisory Board.
3. Resolutions of the Supervisory Board shall only be valid if a quorum
is present at such meeting. The quorum shall consist of a majority of
the total number of members of the Supervisory Board.
4. The rules governing the operation of the Supervisory Board shall be
specified in the By-laws of the Supervisory Board, which shall be
adopted by the Supervisory Board.
5. Reasonable out-of pocket expenses incurred by members of the
Supervisory Board in connection with attending meetings and
fulfilling other obligation as board members, shall be reimbursed by
the Company.
SS. 18
1. The Management Board of the Company shall consist up to 10 (ten)
members. The Supervisory Board shall decide on the number of
Management Board members.
2. The Management Board members shall be appointed and dismissed by the
Supervisory Board for a term of office of 5 (five) years.
3. The Management Board shall manage the activities of the Company,
shall adopt resolutions necessary for performance of tasks and shall
represent the Company before courts, authorities, offices and third
parties.
4. The Management Board shall handle the matters, which are not within
the exclusive competence of the General Assembly of Shareholders or
the Supervisory Board.
5. Resolutions of the Management Board shall be adopted by a simple
majority of votes.
6. Two members of the Management Board acting together or one member of
the Management Board acting together with a commercial proxy
(prokurent) shall be authorised to make declarations and to sign on
behalf of the Company.
7. Reasonable out-of-pocket expenses incurred by members of the
Management Board in connection with attending meetings and fulfilling
other obligation as board members, shall be reimbursed by the
Company.
8. The rules governing the operation of the Management Board shall be
specified in the By-laws of the Management Board, which shall be
approved by the Supervisory Board.
V. FINAL PROVISIONS
SS. 19
1. Liquidation and dissolution of the Company shall be undertaken in
cases provided for by law or pursuant to a resolution of the General
Assembly of Shareholders.
2. Liquidators shall be members of the Management Board unless the
General Assembly of Shareholders appoints other liquidators.
SS. 20
In any and all matters not provided for in this Statute, the provisions of the
Commercial Companies Code and other provisions of Polish law shall apply.
SS. 21
The Company was established by transformation into a joint stock company of
"R.P. Telekom" Spo(3)ka z ograniczon(1) odpowiedzialnooeci(1), the Shareholders
of which were the founders listed in Section 4."
RESOLUTION NO. [_]
OF THE EXTRAORDINARY GENERAL SHAREHOLDERS' MEETING OF
NETIA HOLDINGS S.A.
DATED JANUARY 15, 2003
concerning the adoption of the
"Rules of Remuneration of Supervisory Board Members"
1. The Extraordinary Shareholders' Meeting hereby adopts the "Rules of
Remuneration of Supervisory Board Members" with the following
wording:
"RULES OF REMUNERATION OF SUPERVISORY BOARD MEMBERS
ss. 1
Each Supervisory Board Member is entitled to remuneration for exercising their
duties.
ss. 2
1. The Chairman of the Supervisory Board is entitled to gross monthly
remuneration of the PLN equivalent of US$ 2,400.
2. Other Members of the Supervisory Board are entitled to gross monthly
remuneration of the PLN equivalent of US$ 2,000 each.
3. The General Shareholders' Meeting may establish levels of
remuneration other than those set forth in points 1 and 2 above.
ss. 3
Any changes to these Rules require a resolution of the General Shareholders'
Meeting."
2. The Extraordinary Shareholders' Meeting hereby repeals the "Rules of
Remuneration of Supervisory Board Members" as adopted by Resolution
No. 1 of February 19, 2001.
RESOLUTION NO. [_]
OF THE EXTRAORDINARY GENERAL SHAREHOLDERS' MEETING OF
NETIA HOLDINGS S.A.
DATED JANUARY 15, 2003
concerning granting consent to establishing registered pledges on the
collection of movables and rights constituting the entire enterprise of
Netia Holdings S.A.
In order to secure creditors' rights under the guarantee granted by Netia
Holdings S.A. to The Bank of New York with its seat in London, the United
Kingdom or another entity (the "TRUSTEE") as security for EUR 50 million Senior
Secured Notes due 2008 issued by Netia Holdings B.V., together with the accrued
interest and all other pecuniary obligations, the Extraordinary General
Shareholders' Meeting of Netia Holdings S.A., acting pursuant to Article 393
point 3 of the Commercial Companies' Code, hereby consents to the establishment
by Netia Holdings S.A. of:
I. a registered pledge on the collection of movables and rights of Netia
Holdings S.A. and on the future collection of movables and rights of
Netia Holdings S.A. constituting the entire enterprise of Netia
Holdings S.A. in favour of the Trustee; and
II. registered pledges on individual assets of Netia Holdings S.A.
constituting the entire enterprise of Netia Holdings S.A. in favour
of the Trustee.
CURRICULUM VITAE OF NEW MEMBERS OF THE SUPERVISORY BOARD
EWA ROBERTSON (age 56) graduated from Brikbeck College, London and specializes
in financial advising. She held managerial positions with, among others,
Alliance Capital Ltd., Alliance Capital Management Europe and Citicorp
Investment Bank Ltd. Between 1993 and 1996 she was the Head of the Global Bond
Sales Department of Daiwa Bank (Capital Management) Ltd. Currently, Ewa
Robertson works as Investment Banking CEE with the London branch of Banca IMI.
In accordance with information obtained by Netia Holdings S.A. (the "Company"),
Ms. Robertson does not own any interest in any business which competes, either
directly or indirectly, with the Company.
RICHARD JAMES MOON (age 53) graduated from high school at age 16 having taken 8
examinations and joined EMI Electronics as a Sponsored Engineering Apprentice.
In 1971 Mr. Moon completed electronic engineering studies earning 'The Thomas
Beaven Memorial Trophy' award as the best apprentice. In 1973, Mr. Moon was
awarded a diploma in Works Management by Bath Business School. In 1992, Mr. Moon
became a member of the Institute of Directors and in 1997 a member of the Royal
Society of Arts and Manufacturers. During his professional career, he has
worked, among other positions, as Operations Director in Thorn EMI Electronics
and as Managing Director of Thorn Automation - Industrial Company. In the past
ten years, he worked as Managing Director in Thorn EMI Electronics, Sensors
Group, Chief Executive in Racal Communications and the Chairman of the
Management Board of Racal Electronics Plc. At present, Mr. Moon works as Chief
Executive Officer of Thales Plc (previously Thomson - CSF). In accordance with
information obtained by the Company, Mr. Moon does not own any interest in any
business which competes, either directly or indirectly, with the Company.
JERZY BAUC (age 45) graduated from the University of Lodz and the University of
Windsor in Canada with degrees in economics. Mr. Bauc works as a university
professor Mr. Bauc specializing in macroeconomics. He advised the Ministries of
Finance in Romania and Mongolia. Between 1998 and 2000, he represented Polish
government in the Monetary Policy Council. Between 2000 and 2001, Mr. Bauc held
the position of the Minister of Finance in the Polish government. At present,
Mr. Bauc is the President of the Management Board of PTE Skarbiec Emerytura
pension fund and a Supervisory Board member of Tras Tychy S.A. and Mostostal
Gdansk S.A. In accordance with information obtained by the Company, none of Mr.
Bauc's present activities are competitive with the Company' business.
ANDRZEJ MICHAL WIERCINSKI (age 56) graduated from the Faculty of Law of Adam
Mickiewicz University in Poznan and holds a doctor's degree in legal sciences.
He specializes in legal advice in the area of privatizations and restructurings
of Polish enterprises. Mr. Wiercinski acted as legal counsel to the
Privatization Minister in the Polish government in connection with the National
Privatization Program. He has worked as an attorney at Stephenson Harwood in
London. He served as a supervisory board member of Wielkopolski Bank Kredytowy
S.A. as well as other companies. Currently, Mr. Wiercinski acts as a supervisory
board member of ING Nationale - Nederlanden Polska Powszechne Towarzystwo
Emerytalne S.A. From 1992, Andrzej Micha(3) Wiercinski has been a partner in the
Polish law firm, Wardynski i Wspolnicy sp.j. (a registered partnership). In
accordance with information obtained by the Company, his activities are not
competitive with the Company's business.
NICHOLAS N. COURNOYER (age 44) graduated from Connecticut College with Bachelor
of Arts degree. He worked it the Latin American Debt Restructuring Department of
Chase Manhattan Bank. In 1985 he established the Emerging Markets Debt Trading
Group based in New York. Between 1986 and 1991 he ran a similar operation in
London. In 1992, Mr. Cournoyer founded Montpelier, a company specializing in the
Emerging Markets. At present, Mr. Cournoyer acts as the Managing Director of
Montpelier Asset Management. In accordance with information obtained by the
Company, he does not own any interest in any business which competes, either
directly or indirectly, with the Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: January 16, 2003
NETIA HOLDINGS S.A.
By: /S/ AVRAHAM HOCHMAN
---------------------------------------
Name: Avraham Hochman
Title: Chief Financial Officer
Vice President, Finance
By: /S/ EWA DON-SIEMION
---------------------------------------
Name: Ewa Don-Siemion
Title: Vice President, Legal