EXHIBIT 1.2
STATUTE OF
NETIA HOLDINGS S.A.
I. GENERAL PROVISIONS
SS. 1
The name of the Company shall be "Netia Holdings" Spolka 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 Slowakiewicz;
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) Boguslaw Chmielewski;
21) Jan Drobiecki;
22) Wladyslaw Balinski;
23) Janusz Blaszczak;
24) Jerzy Dygdon;
25) Grzegorz Figlarz;
26) Tadeusz Gruszka;
27) Zbigniew Hayder;
28) Roman Jarocki;
29) Jerzy Kantorski;
30) Anna Kasowicz;
31) Marian Kolosinski;
32) Janusz Krzysztofinski;
33) Zofia Ledwos;
34) Andrzej Piatkowski;
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35) Stanislawa Sobieranska;
36) Elzbieta Zandecka;
37) Andrzej Wadecki;
38) Frederic Henri Chapus.
II. SHARE CAPITAL AND SHARES
SS. 5
The Company's share capital amounts up to PLN 349,101,912 (three hundred
forty-nine million, one hundred and one thousand, nine hundred twelve Polish
zlotys) and is divided into up to 349,101,912 (three hundred forty-nine million,
one hundred and one thousand, nine hundred twelve) shares of PLN 1 (one Polish
zloty) each.
The shares of the Company are divided into the following series:
5,000 ordinary registered series A shares;
1,000 preferred registered series A1 shares;
3,727,340 ordinary registered series B shares;
17,256,855 ordinary bearer series C shares;
3,977 ordinary bearer series C1 shares;
5,500,000 ordinary bearer series D shares;
425,000 ordinary bearer series E shares;
2,250,000 ordinary bearer series F shares;
2,250,000 ordinary bearer series G shares;
up to 317,682,740 ordinary bearer series H shares.
Pursuant to Article 431 ss. 7 in relation to Article 310 ss. 2 of the Commercial
Companies Code the Management Board is authorized to make a representation, in
the form of a notarial deed, specifying the amount of the subscribed share
capital related to the issue of series H shares.
SS. 5A
1. The Management Board shall have the right to increase the Company's share
capital through the issue of Company shares of the total nominal value by
not exceeding PLN 18,373,785 (eighteen million, three hundred and
seventy-three thousand, seven hundred and eighty-five Polish zlotys), by
issuing, in one or more tranches, series "I" shares or subsequent series of
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the Company's shares (authorized capital). The Management Board's authority
to increase the Company's share capital and to issue new Company shares
within the limit specified above expires on March 12, 2005.
2. Each increase of the share capital by the Management Board up to the amount
determined inss.5A section 1 of the Company's Statute requires the
Supervisory Board's approval.
3. Upon the approval of the Supervisory Board, the Company's Management Board
shall determine the detailed conditions of each issue of shares within the
limits set forth in ss. 5A section 1 of the Company's Statute, and in
particular:
the exact number of shares to be issued in each tranche or series;
the issuance price of every subsequent issue;
the time of the opening and closing of the subscription periods;
the detailed terms and conditions for the distribution of the shares;
the date of determining pre-emptive rights, if applicable;
to execute agreements with entities authorised to accept subscriptions for
shares and to determine the places and dates of such subscriptions for the
shares;
to execute agreements, both paid and free of charge, in order to secure the
success of the subscription for the shares and, in particular, any standby or
hard commitment underwriting agreement.
4. Upon the approval of the Company's Supervisory Board, the Management Board
is authorized to limit or exclude the pre-emptive rights of the Company's
Shareholders with respect to the Company's shares to be issued by the
Management Board within the limits set forth in ss. 5A section 1 of the
Company's Statute.
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.
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4. The right to acquire:
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
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:
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
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:
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;
determine the issue prices of series "J" and "K" shares separately for each
tranche;
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;
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:
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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
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.
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SS. 11
The General Assembly of Shareholders shall be convened by way of an announcement
to the shareholders published in Monitor Sadowy i Gospodarczy.
SS. 12
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).
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.
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.
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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.
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".
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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.
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).
Subject to the provisions of ss. 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;
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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
glosow) or in any other similar manner, even if not connected with a
written agreement.
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.
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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.
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.
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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" Spolka z ograniczona odpowiedzialnoscia, the Shareholders of
which were the founders listed in Section 4.
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