ANNEX A
ARTICLES OF ASSOCIATION
OF MOBIL ROM S.A.
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ARTICLES OF ASSOCIATION
2.
TABLE OF CONTENTS
ARTICLE 1 Corporate Name
ARTICLE 2 Legal Form
ARTICLE 3 Registered Office
ARTICLE 4 Duration
ARTICLE 5 Objects
ARTICLE 6 Share Capital
ARTICLE 7 Form of the Shares
ARTICLE 8 Rights and Obligations attached to the Shares
ARTICLE 9 Changes to Share Capital
ARTICLE 10 Transfer of Shares
ARTICLE 11 Governing Bodies of the Company
ARTICLE 12 General Meeting of Shareholders
ARTICLE 13 General Meetings of Shareholders - Conditions of Attendance-
Quorum - Right of Vote
ARTICLE 14 Board of Directors
ARTICLE 15 Financial Year
ARTICLE 16 Allocation and Distribution of Profits
ARTICLE 17 Accounting
ARTICLE 18 Auditors
ARTICLE 19 Dissolution
ARTICLE 20 Notices
ARTICLE 21 Arbitration
ARTICLE 22 Registration of the Company
ANNEX
ANNEX 1 Company's Logo (Article 1)
ARTICLES OF ASSOCIATION
3.
CHAPTER I
COMPANY NAME, LEGAL FORM, REGISTERED OFFICE,
DURATION AND OBJECTS
ARTICLE 1 - CORPORATE NAME
The company's name shall be Mobil Rom. The company shall also use the logo
described in Annex 1 to these Articles of Association.
In all invoices, announcements, publications and other documents issued by the
company, the company's name will be followed by the words "joint stock company"
(in Romanian) or the initials S.A., with a statement of the subscribed and paid
up share capital as shown in the most recently approved balance sheet, the
number under which the company is registered at the commercial registry and the
address of the company's registered office.
ARTICLE 2 - LEGAL FORM
The company is set up as a Romanian joint stock company governed by article 8
and the other relevant articles of law no. 31/1990, law no. 35/1991 as modified
by law no. 57/93, the provisions of the Company Agreement and those set out in
these Articles.
The company's legal form may be changed by a resolution of the General Meeting
of shareholders, in accordance with the requirements set out below regarding
quorum and majority.
The company shall be liable for its obligations to the extent of its assets.
The liability of the shareholders is limited to their contributions to the
capital of the company required by the Company Agreement and these Articles of
Association. They shall not have any liability whatsoever for the debts or
obligations of the company, unless they have not paid up their shares in full
and then only to the extent of the unpaid amount.
The company shall not have any liability for the debts or obligations of the
shareholders.
ARTICLE 3 - REGISTERED OFFICE
The registered office of the company is situated at Calea Dorobantilor 7, Sector
1, Hotel Dorobanti, Bucharest, Romania.
It may be transferred to any other address in Romania by resolution of the
General Meeting of shareholders in accordance with Romanian law.
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4.
The company may open branches, branch offices, agencies, shops, plants and
warehouses anywhere in Romania, subject to the provisions of Romanian law and to
a decision of the General Meeting.
ARTICLE 4 - DURATION
The company is created for an indefinite period and may be dissolved in the
cases provided for by law or as described in Article 19 of these Articles of
Association.
ARTICLE 5 - OBJECTS
The objects of the company shall be:
(a) to design, build, finance, operate and maintain a GSM cellular network in
Romania;
(b) to commercialise and provide cellular mobile telecommunications services in
Romania together with any other type of telecommunications or
telecommunications related services;
(c) to buy and/or import all relevant equipment (telecommunication,
electromechanical, transmission, computer, etc.), supplies and spare parts
to (i) set up, operate and maintain the GSM network in Romania and (ii)
provide any other type of telecommunications or telecommunications related
services in Romania;
(d) to import and trade in all types of telecommunications equipment, supplies
and spare parts and related services in Romania;
(e) to engage in any kind of contract with Romanian or foreign companies or
individuals for (i) the provision and import, as the case may be, of know-
how, management services and technology and (ii) the assignment and supply
of personnel to the company;
(f) to enter into contracts in relation to the acquisition or disposal or
occupation or use of space, land, offices and sites in relation to the
carrying out of the above activities;
(g) generally to engage in all types of investment in the telecommunications
field; and
(h) to engage in such other activities as are incidental to or necessary for
the activities described above.
CHAPTER II
SHARE CAPITAL - SHARES
ARTICLE 6 - SHARE CAPITAL
Final amount of share capital in Lei (equivalent of US $120,000,000) to be
determined according to the Lei/US $ exchange rate on the date of certification
of the articles which shall occur only between the date of the official
announcement of the award of the Licence to the consortium and the date that is
15 days later
6.1 The company's subscribed share capital is of Lei [_________], the
shareholders agreeing that, as at the date of signature of these Articles,
this is equivalent in Lei of
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5.
US $120 million, (applying an exchange rate of [________ rate published by
the Central Bank of Romania on the date of signature of the Articles of
Association before a public notary, which shall occur not less that 15 days
following the official announcement by the Ministry of the award of the
Licence to the company _____]. The share capital is to be paid up in cash,
unless otherwise agreed between the shareholders in which case the value of
any contribution in kind shall be determined by the constitutive General
Meeting in accordance with Article 21 of law no 31/1990.
30% of the company's share capital has been paid up by the shareholders on
_____ [date not to be later than 15 days following the official
announcement by the Ministry of the award of the Licence to the company],
the Romanian shareholders having paid their contribution in Lei and the
foreign shareholder having paid its contribution in US dollars. The unpaid
portion of the share capital shall be paid up by the shareholders within 15
days of the request therefor from the Board of Directors, in accordance
with the dates set forth in the business plan of the company.
The total share capital is divided into 12,000 registered shares, each
having a nominal value of Lei [_____ to be calculated dividing the capital
in Lei by 12,0O0_____].
The company's shares have been subscribed and partially paid up on the date
of signature of these Articles, as follows:
1. France Telecom Mobiles International [______ or Substituted Entity
pursuant to Clause 3.2 of the General Agreement _____]: 6,120 shares
representing 51% of the company's share capital, and having a total
nominal value of Lei [000000] being the equivalent, as at the date
hereof, of US $61,200,000 (sixty one million two hundred thousand US
Dollars), (applying the exchange rate referred to above) and of which
30% or US $20,400,000 (twenty million four hundred thousand US
Dollars) has been paid up in cash;
2. Tomen Telecom Project (Romania) Co Srl.: 720 shares representing 6% of
the company's share capital and having a total nominal value of Lei
[000000], and of which 30% or Lei [000000] has been paid up in cash;
3. Alcatel Network Systems Romania SA: 360 shares representing 3% of the
company's share capital and having a total nominal value of Lei
[000000], and of which 30% or Lei [000000] has been paid up in cash;
and
4. MBL Computers Srl.: 600 shares representing 5% of the company's share
capital and having a total nominal value of Lei [000000], and of which
30% or Lei [000000] has been paid up in cash;
5 Radcom Srl.: 600 shares representing 5% of the company's share capital
and having a total nominal value of Lei [000000], and of which 30% or
Lei [000000] has been paid up in cash;
6 MEDIACOM 95 Srl.: 2,400 shares representing 20% of the company's share
capital and having a total nominal value of Lei [000000], and of which
30% or Lei [000000] has been paid up in cash; and
7. Unimedia Srl: 1,200 shares representing 10% of the company's share
capital and having a total nominal value of Lei [000000], and of which
30% or Lei [000000] been paid up in cash.
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6.2 Contributions of the shareholders have been deposited on the account
opened, in the name of the company, in the books of Societe Generale,
Bucharest.
ARTICLE 7 - FORM OF THE SHARES
The shares are equal and indivisible.
The shares issued by the company are registered shares. A resolution of the
General Meeting of shareholders may decide to transform some or all of the
registered shares into bearer shares.
Shares shall be recorded in the share register in accordance with applicable
laws and regulations.
ARTICLE 8 - RIGHTS AND OBLIGATIONS ATTACHED TO THE SHARES
Each share confers on its holder an equal right to the profits of the company
and to all assets held by the company.
Each share entitles its holder to one vote in all votes and deliberations of the
General Meeting of shareholders, subject to the provisions of Article 67 of law
no 31/1990.
The rights and obligations conferred by shares are transferred to all new
holders thereof provided the transfer has been made in accordance with Romanian
law, the Company Agreement (as amended from time to time) and these Articles of
Association. The holding of a share implies the obligation to abide by the terms
of the Company Agreement (as amended from time to time) and these Articles of
Association.
ARTICLE 9 - CHANGES TO SHARE CAPITAL
9.1 Increase in capital
The share capital may be increased through any means authorised by Romanian
law, pursuant to a decision of the General Meeting.
If a capital increase is to be carried out in whole or in part by way of
contributions in kind, the resolution of the General Meeting in respect of
the capital increase, and also the related amendments to the Company
Agreement and to these Articles, shall all include a description of the
contribution in kind, the name of the contributor and the number of shares
issued.
Any decision to increase the capital of the company shall be published in
the Monitorul Official.
Each shareholder shall have a preferential right of subscription to all
capital increases, in proportion to its shareholding in the company at the
time of such
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increase. The shareholders shall have, from the date of publication of the
decision to increase, a period of one month to exercise such preferential
subscription right. After this period, the shares may be offered to the
public.
9.2 Decrease in capital
The capital may also be reduced pursuant to a decision of the General
Meeting for any reason and in any manner whatsoever, provided that the
conditions for the amendment of the Company Agreement and these Articles of
Association are complied with. However such reduction shall not in any
circumstances affect the principle of equality among the shareholders.
Any decrease in the share capital of the company shall become effective two
(2) months after the publication in the Monitorul Official of the decision
of the General Meeting. The decision shall comply with legal requirements
regarding minimum capital and shall set out both the reasons for the
decrease and the manner in which it is to be effected.
ARTICLE 10 - TRANSFER OF SHARES
No shareholder shall effect any transfer, assignment or other disposal of all or
any part of its shareholding in the company ("Transfer(s)"), except in
accordance with the following provisions of this Article 10.
10.1 Approval of the General Meeting of shareholders
Until the third anniversary of the date of registration of the company at
the commercial registry, any proposed Transfer of shares in the company
shall be subject to the prior approval of the shareholders in General
Meeting. If any such transfer is approved by the General Meeting of
shareholders, the procedure described in Article 10.2 below shall apply.
10.2 Transfer Procedure
Any proposed Transfer of shares in the company (whether during or after the
3 year period mentioned in Article 10.1 above) shall give rise to a right
of pre-emption in favour of the other shareholder(s) pro rata to their
respective shareholdings.
(a) Notice of Intention to Transfer
Any shareholder wishing to transfer all or part of its shareholding
(the "Proposing Shareholder") shall send a notice to that effect to
the Executive Manager and to the Board of Directors. Such notice shall
set out details of the shares it proposes to transfer (the "Transfer
Shares"), the identity of the proposed buyer (the "Buyer"), plus a
deed from the Buyer in a form satisfactory to the Board of Directors
undertaking to adhere to the Company Agreement.
If the General Meeting has approved the proposed Transfer under the
provisions of Article 10.1 or if such approval is not required, the
Board of Directors shall appoint an international firm of auditors
present in Bucharest
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8.
to determine the fair market value of the Transfer Shares for the
purposes of the operation of the pre-emption provisions. Such a firm
shall act as expert and not as an arbitrator and its fees and expenses
shall be borne by the Proposing Shareholder. Following the expert's
appointment, the Board of Directors shall send the shareholders copy
of the Proposing Shareholder's notice and inform them of such
appointment.
(b) Notice of Proposed Transfer
Within 30 days of receipt of the expert's evaluation of the Transfer
Shares, the Executive Manager shall send the shareholder(s) (including
the Buyer, if the Buyer is a shareholder) a notice (the "Notice"),
with copy to the Proposing Shareholder, setting out the fair market
value per Transfer Share as determined by the expert, and the number
of Transfer Shares to which each shareholder shall be entitled if all
the shareholders exercise their pre-emption rights.
(c) Notice of Exercise
Each shareholder shall have 30 days from receipt of the Notice to
inform the Executive Manager of whether it intends to exercise its
pre- emption right and the maximum number of Transfer Shares which it
would be prepared to purchase. Any shareholder who fails to reply
within such 30 day period shall be deemed to have waived the exercise
of its pre-emption right in respect of the Transfer Shares.
(d) Transfer to Buyer
If the total number of Transfer Shares which the shareholders are
willing to purchase is less than the number of Transfer Shares, the
Proposing Shareholder shall be entitled to proceed with the Transfer
to the Buyer strictly in accordance with the terms notified to the
General Meeting provided that such Transfer occurs within 60 days of
the Notice.
(e) Pre-emption
Where the total number of Transfer Shares which the shareholders are
willing to purchase is equal to or less than the number of Transfer
Shares, the Proposing Shareholder shall transfer the Transfer Shares
to the shareholders exercising their pre-emption right at the price
determined by the expert pursuant to Article 10.2.a above; provided
that:
(i) where the total number of Transfer Shares which the shareholders
are willing to purchase is greater than the number of Transfer
Shares, the Transfer Shares shall be transferred to them pro rata
their existing shareholdings, subject to any maximum number of
Transfer Shares indicated by any of them; and
(ii) where the operation of these pre-emption provisions would result
in the number of shareholders falling below the minimum required
under Romanian law, one of the Transfer Shares shall be
transferred to a Director appointed on the nomination of one of
the shareholders exercising its pre-emption right, it being
agreed that such share shall
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be deemed to be held by such shareholder when calculating the
percentage of shares held by such shareholder for the purposes of
the operation of Article 14.2.
The Transfer shall take place at a date to be determined by the
Executive Manager within 60 days of the Notice. All transfer and stamp
duties in relation to the Transfer to the shareholders shall be borne
by the purchasing shareholders.
10.3 Transfer to Affiliate
A Transfer by a shareholder of all or part of its interest in the company
to an Affiliate shall not be subject to the restrictions set out in
Articles 10.1 and 10.2 above provided that:
(a) such shareholder gives the other shareholders prior written notice of
the planned Transfer, such notice to include a commitment by the
shareholder to retain control of the legal entity to which it
transfers its shares, and stating that (without prejudice to the
above) in the event of the loss of such control, the substitution of
the Affiliate shall automatically cease to have effect from the date
of such loss of control. The shareholder shall also undertake in such
notice to inform the other shareholders forthwith upon any such loss
of control;
(b) with such notice, the transferring shareholder shall provide the
Company and the other shareholders with the original of a deed
executed by the proposed Affiliate transferee in which it undertakes
that, should the Transfer be allowed to proceed, it will (i) be bound
by the same obligations as those binding upon the transferring
shareholder pursuant to the Company Agreement and these Articles of
Association, and (ii) at its own cost, secure all official approvals
necessary for the Transfer to proceed;
(c) the transferring shareholder shall also undertake to be jointly and
severally liable with the Affiliate transferee for the performance of
its obligations under the Company Agreement and these Articles of
Association; and
(d) the transferring shareholder shall provide satisfactory evidence to
the other shareholders that the proposed transferee is its Affiliate.
Any such Affiliate transferee which subsequently ceases to be an Affiliate
of the transferring shareholder shall transfer back such transferred
shares. The other shareholders shall not have any pre-emptive rights in
respect of any such Transfer by a former Affiliate transferee of its shares
in the company back to the shareholder having transferred such interest to
it.
For the purposes of these Articles of Association, "Affiliate" means, in
relation to any person, any other person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with, such person. For the purposes of this definition and
of this Article, the term "control" as applied to any person means the
possession, directly or indirectly, of any of the
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10.
following: (i) ownership of more than half of the capital or business
assets, or (ii) the power to exercise more than half of the voting rights,
or (iii) the power to appoint more than half of the members of the
administrative board or bodies legally representing such person.
10.4 Transfer to Original Shareholder
A Transfer by a shareholder of all or part of its interest in the company
to one of the founding shareholders of the company shall not be subject to
the restrictions set out in Articles 10.1 and 10.2 above provided that:
(a) the transferring shareholder gives the other shareholders prior
written notice of the Transfer; and
(b) with such notice, the transferring shareholder shall provide the
company and the other shareholders with the original of a deed
executed by the founding shareholder transferee in which it
undertakes, at its own cost, to secure all official approvals
necessary for the Transfer to proceed.
10.5 Invalid Transfer
In the event that any shareholder effects a Transfer otherwise than in
accordance with Article 10 or, where applicable, does not fulfil the
requirements laid down in Article 10.3 above, the rights attached to the
shares in question shall be suspended until such time as the breach has
been remedied.
CHAPTER III
GOVERNING BODIES AND MANAGEMENT OF THE COMPANY
ARTICLE 11 - GOVERNING BODIES OF THE COMPANY
The governing bodies of the company shall be the General Meeting of shareholders
and the Board of Directors.
ARTICLE 12 - GENERAL MEETING OF SHAREHOLDERS
12.1 The highest governing body of the company shall be the General Meeting of
shareholders, which shall consist of the shareholders or their
representatives.
Each share held by a shareholder shall carry one vote subject to the
provisions of Article 10.4 above and to the timely payment of the unpaid
portion of the shares.
The will of the shareholders shall be expressed by decisions of the General
Meeting which shall be binding on all shareholders, irrespective of whether
they were absent dissenting or incapacitated.
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11.
12.2 General Meetings of shareholders may be ordinary ("Ordinary General
Meetings") or extraordinary ("Extraordinary General Meetings").
12.3 The Ordinary General Meeting shall be held at least once a year, within 3
months of the end of the company's financial year. The Ordinary General
Meeting shall have the following powers.
(a) to discuss, approve or modify the company's balance sheet and annual
profit and loss accounts, after hearing the Board of Directors' and
auditors' reports;
(b) distribution of profits and coverage of losses;
(c) appointment of members of the Board of Directors, subject to the
provisions of Article 14 below;
(d) removal from office of any member of the Board of Directors;
(e) appointment, dismissal and determination of the conditions of
remuneration of the auditors of the company;
(f) assessment of the company's management;
(g) to decide on the annual budget and the policy and development plans
and programs for the financial year;
(h) to decide on any material change to the Business Plan of the company
in respect of the Licence, which, as a result, increases the amount of
the "investment" (see "cash flow statement after financing"
section of the Business Plan) or "total operating expenses"
estimated amounts by more than 3 per cent over the next 3 years;
(i) decision on the pledge, mortgage, lease or closing down of any
business unit of the company;
(j) decision on the incurring by the company of a debt in excess of US $
one (1) million or its equivalent in any other currency; and
(k) approval of any contracting obligation on behalf of the company the
value of which exceeds US $ one (1) million or its equivalent in any
other currency.
Ordinary General Meetings shall be convened by the Chairman of the Board of
Directors or the Executive Manager.
12.4 Extraordinary General Meetings shall be held whenever the Board of
Directors or the Executive Manager deems it appropriate or if requested (i)
by the auditors of the company or (ii) by one or several shareholders
representing at least ten per cent (10%) of the capital of the company or
(iii) by a Director pursuant to Article 14.2.
Extraordinary General Meetings are convened by the Chairman of the Board
of Directors, the Executive Manager or by any person or persons entitled
to request an Extraordinary General Meeting pursuant to this Article 12.4.
Resolutions on any subject may be considered at Extraordinary General
Meetings. However decisions on the following matters shall be taken
exclusively at Extraordinary General Meetings.
(a) amendments to the Company Agreement or to the Articles of Association
of the company;
(b) increase or decrease in the share capital of the company;
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12.
(c) approval of any transfer of shares during the first 3 years following
the date of registration of the company in the commercial register;
(d) acquisitions of companies by purchase of assets or shares;
(e) any event of merger of the company, its amalgamation, sale of
substantially all its assets and winding-up or dissolution of the
company;
(f) approval of the conclusion of any contract between the company and any
shareholder holding at least 5% of the company's share capital, an
Affiliate of any such shareholder or an employee, manager, director or
shareholder of any such shareholder;
(g) approval of the signature of the GSM telecommunications licence
agreement to be entered into with the Ministry of Telecommunications
and any material amendment thereof;
(h) approval of the signature of the interconnection agreement to be
entered between the company and Rom Telecom in relation to the
interconnection of the Company's network and the fixed network
operated by Rom Telecom; and
(i) any other matter entrusted to the competence of the Extraordinary
General Meeting.
12.5 Written notice of any General Meeting shall be sent to all the shareholders
at least fifteen (15) days prior to the date on which the meeting is
scheduled. It shall be sent by registered letter or by facsimile (with
confirmation by mail) to the address appearing in the share register.
All notices of General Meetings shall contain the agenda for the meeting,
together with draft resolutions relating to any amendment to the Company
Agreement and the Articles of Association in the event that such amendment
is put on the agenda of the General Meeting. The notice shall also specify
the time, date and place of the meeting.
12.6 General Meetings shall be held at the registered office of the company or
at such other place as may be specified in the notice of the meeting and
agreed beforehand by the shareholders.
12.7 Any decision required or permitted to be taken at a General Meeting of
shareholders may be taken by a written resolution signed by all the
shareholders of the company and such resolution shall be valid and binding
on the shareholders and the company notwithstanding the fact that such
resolution may have been signed at different times or places or that such
resolution may be set forth on more than one instrument.
ARTICLE 13 - GENERAL MEETINGS OF SHAREHOLDERS - CONDITIONS OF
ATTENDANCE - QUORUM - RIGHT OF VOTE
13.1 Shareholders shall be entitled to vote at the General Meeting of
shareholders only if they have been registered in the share register of the
company.
13.2 Decisions of the Ordinary General Meeting are validly made if adopted at
General Meetings reaching the quorums and with the majorities specified in
Article 74 of law
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13.
no 31/1990, except that decisions specified in paragraphs (d), (h), and (i)
of Article 12.3 are passed by a vote in favour of at least 75% of the share
capital present or represented at the General Meeting.
13.3 Decisions of the Extraordinary General Meeting are validly made if adopted
at General Meetings reaching the quorums and with the majorities specified
in Article 76 of the law no 31/1990, except that
(a) decisions specified in paragraphs (a) to (f) of Article 12.4 above are
passed by a vote in favour of at least 75% of the share capital
present or represented at the General Meeting; and
(b) decisions specified in paragraphs (g) and (h) of Article 12.4 above
are passed by a vote in favour of at least 90% of the share capital
present or represented at the General Meeting.
13.4 General Meetings shall be chaired by the Chairman of the Board of Directors
or in his absence by any member of the Board of Directors.
13.5 A shareholder may be represented by another shareholder at a General
Meeting, provided that such other shareholder has been appointed as proxy
by a written instrument.
13.6 Minutes of the deliberations of the General Meeting shall be drawn up and
shall include the information required by Romanian law. The minutes shall
be drawn up and signed by the chairman of the General Meeting and the
Executive Manager or by any two members of the Board of Directors
specifically appointed by the Board of Directors. Copies of or extracts
from these minutes may be certified as true copies by the Executive
Manager.
In the absence of an attendance sheet, the signatures of all the
shareholders present shall be entered on the minutes.
ARTICLE 14 - BOARD OF DIRECTORS
14.1 The company shall be managed by a Board of Directors consisting of seven
(7) members appointed for a two (2) year term, by the General Meeting. The
shareholders shall exercise their votes in General Meetings in such manner
that at all times:
(a) during such time as Unimedia Srl holds at least 10% of the company's
paid-up share capital, one Directors shall be a candidate nominated by
Unimedia;
(b) during such time as Mediacom 95 Srl holds at least 20% of the
company's paid-up share capital, two Directors shall be candidates
nominated by Mediacom; and
(c) during such time as FTMI [___ or Substituted Entity pursuant to Clause
3.2 of the General Agreement ___] holds over 50% of the company's
paid-up share capital, four Directors shall be candidates nominated
by FTMI.
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14.
Directors shall be individuals, and need not be either Romanian nationals
or shareholders of the company. Directors may be re-elected. A Director may
be removed from office at any time and for any reason, by resolution of the
General Meeting.
The first Board of Directors shall be as stated in the Company Agreement.
In the event of any vacancy on the Board of Directors, a General Meeting of
shareholders shall be convened to appoint the missing member.
14.2 Meetings of the Board of Directors may be convened by any Director at least
once each month.
The Directors shall usually be given at least 21 days' notice of each Board
meeting but, where three Directors, nominated by at least two different
shareholders, agree on reasonable grounds that it is urgent that the Board
be convened on shorter notice, 7 days' prior notice shall be sufficient. In
such case, the Directors convening the meeting shall use their best efforts
to notify the other Directors by telephone or by facsimile and shall state
in their notice why they consider the shorter notice to be justified. A
Board meeting shall not be deemed to have been duly convened unless notice
thereof has been sent to the Executive Manager.
No business shall be transacted at any Board meeting unless a quorum of
Directors is present. On the first convening of a meeting, the quorum shall
be 5 Directors. Where a quorum is not present at a duly convened Board
meeting, all the Directors shall forthwith be notified by facsimile and
mail that the meeting shall be postponed to the same time and place 7 days
later. At such adjourned Board meeting, the quorum shall be 4 Directors.
Meetings of the Board shall be chaired by a Chairman to be elected by the
Directors.
Decisions of the Board of Directors shall be adopted by simple majority of
the aggregate number of Directors. However, decisions for the confirmation
of the appointment by the Executive Manager of any senior officer of the
company having the position of manager shall require a vote in favour of 5
Directors.
In the event that the Board of Directors is unable to reach a decision on
any matter considered as urgent or important by any member of the Board,
such member may convene an Extraordinary General Meeting to resolve the
issue.
14.3 The Board of Directors is in charge of the general management of the
company. To this effect, the Board of Directors shall carry out all acts
necessary for this management within the limits of the company's objects
and subject to those powers expressly reserved by Romanian law to the
General Meeting.
The main powers of the Board of Directors are as follows
- to observe and cause the implementation of the resolutions of the
General Meeting of shareholders;
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15.
- to appoint the Executive Manager who shall be in charge of the
operations of the company and its day to day management;
- to confirm the appointment by the Executive Manager of any senior
officer of the company having the position of manager;
- to review and supervise the activities of the company;
- to decide on the company's policies and strategies in accordance with
resolutions of the General Meeting of shareholders;
- to authorise the execution by the company of any contract involving
the assumption by the company of any obligation whose value exceeds US
$ one hundred thousand (US Dollars 100,000) or its equivalent in any
other currency;
- to decide on any other matters, in accordance with Romanian law.
The Board of Directors shall have the right to delegate part of its powers.
Any delegation of powers given to a person other than a Director, the
Executive Manager or a manager of the company, shall be (i) limited to
specified acts or activities and (ii) for a limited period of time not to
exceed 12 months.
14.4 The operations of the company and its day to day management shall be
entrusted to an Executive Manager appointed by the Board of Director on the
proposal of FTMI.
The Executive Manager is not a Director of the company but is entitled to
attend, as an observer, all meetings of the Board of Directors. The
Executive Manager is under the supervision of the Board of Directors to
which he shall report regularly.
The Executive Manager is authorised to represent the company vis-a-vis
third parties but only within the limits set by the Board of Directors. For
the avoidance of doubt, the Board of Directors shall not be entitled to
delegate to the Executive Manager any powers going beyond the limits on the
Board's powers.
The Chairman of the Board of Directors or two Directors acting jointly may
also represent the company vis-a-vis third parties but only if and to the
extent specifically authorised to do so by a decision of the Board of
Directors.
14.5 The Executive Manager may delegate part of his powers to the managers of
the company (technical, financial, administrative and commercial managers)
or to any other employee of the company. It is agreed that (i) each
shareholder shall be entitled to propose experienced candidates for the
different positions of manager and (ii) the Financial Manager and the
Technical Manager shall be selected amongst candidates proposed by FTMI.
However such delegation and appointment shall be ratified by the Board of
Directors.
14.6 The employment conditions and the remuneration of the Executive Manager and
the managers will be specified in an employment contract to be entered into
by the company and the relevant manager. The terms and conditions of such
employment contracts shall be approved by the Board of Directors.
ARTICLES OF ASSOCIATION
16.
CHAPTER IV
FINANCIAL YEAR - DIVIDENDS - ACCOUNTANCY AND COMPANY'S AUDIT
ARTICLE 15 - FINANCIAL YEAR
The company's financial year shall run from 1 January to 31 December each year.
As an exception, the first financial year shall begin from the registration of
the company at the Commercial Registry and shall end on the following 31
December.
ARTICLE 16 - ALLOCATION AND DISTRIBUTION OF PROFITS
16.1 The profit and loss statement summarising the profits and expenditure of
the financial year shall show the profits of the financial year, after
deduction of depreciation and reserves.
At least five per cent (5%) of the profit of each financial year, (minus
previous losses carried forward) shall be put into the legal reserve fund
except that this shall cease to be mandatory once the monies in such
reserve fund amount to at least one fifth of the share capital. If for any
reason the amounts in the reserve fund at any time fall below one fifth of
the share capital, further contributions to the reserve fund shall be made
in accordance with the above.
The distributable profit shall consist of the profit of the financial year,
plus the profit carried forward, minus any previous losses and sums
allocated to reserves pursuant to Romanian law, the Company Agreement and
these Articles of Association.
16.2 The General Meeting of shareholders shall decide either the distribution of
the net profit as dividends to the shareholders in proportion to their
shareholdings, or its retention for use in the company's activity and
investments. Payment of the dividends to the shareholders shall occur not
later than 3 months after the date of the General Meeting having decided
the distribution of dividends, subject to any other resolution of the
General Meeting of shareholders.
16.3 The Chairman of the Board of Directors shall register a copy of the
company's balance sheet and profit and loss account with the commercial
registry and the Internal Revenue Authority, along with the Board of
Directors' report, the auditors' report and the decision of the General
Meeting.
ARTICLE 17 - ACCOUNTING
17.1 Reports and Budget
The Board of Directors shall prepare quarterly reports to keep the
shareholders informed of the activities of the Company during the previous
quarter These reports shall contain all relevant information and data
concerning the situation of the
ARTICLES OF ASSOCIATION
17.
Company and its activities such as turnover, gross profit, operating
profit, ordinary net profit, investments, capital employment and cash flow
together with such other information as the General Meeting of the
shareholders may require.
The Board of Directors shall prepare an accounting report every semester in
Lei and in US Dollars.
The Board of Directors shall prepare the annual budget in Lei and in US
Dollars to be approved by the General Meeting of the shareholders.
17.2 Accounting standards
The company's books of account shall comply in all respects with the
requirements of Romanian law. The accounting standards to be used by the
company shall also, to the extent permitted under Romanian law, comply with
generally accepted and internationally used accrual basis debit and credit
accounting system.
17.3 Banks accounts
The company may open bank accounts in Lei and in any other currency with
any Romanian bank or authorised bank within Romania. The person(s)
authorised validly to sign banking documents on behalf of the company are
to be appointed by the Board of Directors.
ARTICLE 18 - AUDITORS
A specialist authorised to practice in Romania shall be hired, with the approval
of the General Meeting, as auditor of the company to review all evidence,
accounting books, report forms and accounting files of the company. A second
specialist, meeting the same requirements, shall be hired (also with the General
Meeting's approval) to act as alternate to such auditor.
The auditor shall keep the Board of Directors informed as to any irregularities
or infringements of legal or corporate requirements it has uncovered during its
review. The auditor shall be obliged to bring to the notice of the General
Meeting the most serious cases of default.
The Chairman of the Board of Directors shall give proper notice to the auditor
of the convening of each General Meeting. Where the auditors have been so duly
notified, their absence from a General Meeting shall not render such meeting
invalid.
CHAPTER V
DISSOLUTION - LIQUIDATION - MERGER - ARBITRATION
ARTICLE 19 - DISSOLUTION
ARTICLES OF ASSOCIATION
18.
The company's dissolution shall take place on the occurrence of any of the
following:
(a) impossibility for the company either to commence or continue
performance of its objects;
(b) the passing of a resolution by the General Meeting to dissolve the
company;
(c) the insolvency or bankruptcy of the company; or
(d) the amount of the share capital falling beneath the minimum required
by Romanian law unless the shareholders decide to increase the share
capital.
The dissolution of the company shall be registered and published in the
Monitorul Official in accordance with Romanian law. Any such dissolution shall
become effective, with regard to third parties, thirty (30) days after such
publication.
The company shall be liquidated on its dissolution. The liquidation shall be
carried out by one or more liquidators appointed unanimously by the shareholders
or, failing unanimity, by the competent court on the request of any shareholder
or member of the Board of Directors.
Liquidation is carried out in accordance with Romanian law. The entry "company
in liquidation" and the name of the liquidator or liquidators, shall appear on
all papers and documents issued by the company.
The net proceeds of liquidation shall firstly be used to refund the amount of
any of the company's shares which have not been refunded. The balance shall be
distributed among the shareholders in proportion to their holding of paid up
share capital prior to the liquidation
ARTICLE 20 - NOTICES
Except as otherwise provided in these Articles of Association, all notices
required or permitted to be given pursuant or in reference to these Articles of
Association shall be in writing and shall be valid and sufficient if sent by
registered airmail, or facsimile (confirmed by mail), addressed as follows:
- to the company by the shareholders: to the company's registered office
or such other address as may be notified by the Executive Manager
- to the shareholders by the company or by one of the shareholders: to
the address of such shareholder(s) as entered in the share register.
Notices given as herein provided shall be considered to have been given seven
(7) days after the sending thereof.
ARTICLE 21 - ARBITRATION
ARTICLES OF ASSOCIATION
19.
The shareholders and the company shall seek to resolve by amicable settlement
any dispute arising between them in relation to these Articles of Association.
In the event of a failure to reach an amicable settlement, any shareholder or
the company may refer the dispute to arbitration for final settlement under the
rules of conciliation and arbitration of the International Chamber of Commerce,
Paris, by one or more arbitrators appointed in accordance with the said rules.
Any such arbitration shall be held in Geneva and shall be subject to the Swiss
Code of Obligations to the extent that the status of the company is not
concerned. In this case, Romanian law shall apply. All proceedings shall be in
the English language.
ARTICLE 22 - REGISTRATION OF THE COMPANY
The shareholders hereby authorise Mrs. Petrovici Liana or Mr. Dascalu Ion, to
take all steps necessary or appropriate for the proper registration of the
Company with the Commercial Registry of Bucharest.
The Articles of Association are executed in the number of copies required by
Romanian law.
All the copies have the same legal value.
Executed at [_______________], on [_____ date to be determined being between the
official announcement by the Ministry of the award of the Licence to the company
and the following 15 days ______]
Nota: Signed by the parties on 26/9/96 to indicate their willingness to
execute the articles as a binding document between the date of the official
announcement of the award of the Licence to the consortium and the following 15
days
ARTICLES OF ASSOCIATION
20.
FRANCE TELECOM MOBILES INTERNATIONAL:
[___ or Substituted Entity pursuant to Clause 3.2 of the General Agreement ___]:
Signature: __________________________
Name.
Title:
TOMEN TELECOM PROJECT (ROMANIA) CO SRL:
Signature: __________________________
Name:
Title:
ALCATEL NETWORK SYSTEMS ROMANIA SA:
Signature: __________________________
Name:
Title:
MBL COMPUTERS SRL (trading as Computerland):
Signature: __________________________
Name:
Title:
RADCOM SRL:
Signature: __________________________
Name:
Title:
MEDIACOM 95 SRL:
Signature: __________________________
Name:
Title:
ARTICLES OF ASSOCIATION
21.
UNIMEDIA:
Signature: __________________________
Name:
Title:
ARTICLES OF ASSOCIATION
22.
ANNEX 1
COMPANY'S LOGO