COMPANY AGREEMENT
for the creation of
MOBIL ROM S.A.
between
(1) France Telecom Mobiles International
(2) Tomen Telecom Project (Romania) CO Srl.
(3) Alcatel Network Systems Romania SA
(4) MBL Computers Srl. (trading as Computerland)
(5) Radcom Srl.
(6) Mediacom 95 Srl.
and
(7) Unimedia Srl
COMPANY AGREEMENT 2
THIS COMPANY AGREEMENT FOR THE CREATION OF MOBIL ROM S.A. (the "Company
Agreement") IS MADE THIS [_________] DAY OF [_______] 1996 BETWEEN:
1. FRANCE TELECOM MOBILES INTERNATIONAL, a joint stock company duly organised
and existing under the laws of France, having its main offices at ▇▇/▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇, duly represented by ~
hereinafter called "FTMI" [or Substituted Entity pursuant to Clause 3.2 of
the General Agreement ];
2. TOMEN TELECOM PROJECT (ROMANIA) Co SRL, a limited liability company, duly
organised and existing under the laws of Romania, having its registered
offices at "Diplomat Hotel", Ap. 1-4, ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇, registered with the Register of Commerce of Bucharest under no J
40/25646/ 1993, duly represented by [___________] hereinafter called
"Tomen";
3. ALCATEL NETWORK SYSTEMS ROMANIA, a joint stock company duly organised and
existing under the laws of Romania, having its registered offices at St. ▇▇
▇▇▇▇▇ 9, 1900 Timisoara, registered with the Timisoara Register of Commerce
under no 35/3345/91, duly represented by [________] hereinafter called
"Alcatel Romania");
4. MBL COMPUTERS SRL (trading as Computerland), a limited liability company
duly organised and existing under the laws of Romania, having its registered
offices at 15 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, registered with the
Bucharest Register of Commerce under no J40/6l 19/91, duly represented by
[________], hereinafter called "Computerland";
5. RADCOM SRL, a limited liability company duly organised and existing under
the laws of Romania, having its registered offices at ▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇. Bucharest, registered with the Register of Commerce of Bucharest
under no J40/10148,"38.04.1993, duly represented by [________], hereinafter
called "Radcom";
6. MEDIACOM 95, a limited liability company duly organised and existing under
the laws of Romania, having its registered offices at 155, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, registered with the Register of Commerce of
Bucharest under noJ/40/1751/1995, duly represented by [________],
hereinafter called "Aediacorn"; and
7. UNIMEDIA SRL, a limited liability company duly organised and existing unde~
the laws of Romania, having its registered offices at ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. Bucharest, registered with the Register of Commerce of Bucharest
under no J40/l59_ 1995 duly represented by [________], hereinafter called
"Unimedia"; and
FTMI, Tomen, Alcatel Romania, Computerland, Radcom, Mediacom and Unimedia are
hereinafter sometimes referred to individually as a "shareholder" and
collectively as the JJV "shareholders".
COMPANY AGREEMENT 3
WHEREAS:
(A) In June 1996, the Ministry of Communications of Romania (the "Ministry")
issued a tender for the award of a licence (the "Licence") to install and
operate a GSM cellular .network in Romania.
(B) On 26 September 1996, the parties to this Company Agreement concluded an
agreement (the "General Agreement") in which they set Out (i) the
conditions under which they would prepare a joint offer in response to the
above tender and, as the case may be, the Licence would be negotiated with
the Ministry, and (ii) their respective obligations regarding the
establishment and financing of a Romanian joint stock company to implement
the Licence in the event of their joint offer being successful. The General
Agreement included in particular an undertaking by the parties hereto to
execute this Company Agreement with the Articles of Association annexed
hereto in the event of the offer being successful.
(C) On [________], the Ministry officially announced its selection of the
parties hereto as winners of the tender.
(D) Pursuant to the General Agreement, the parties hereto now wish to conclude
this Company Agreement to create between themselves a Romanian joint stock
company in accordance with the provisions of law no.31/1990 and law
no.35/1991 as modified by law no.57/93.
IT IS HEREBY AGREED AS FOLLOWS:
CLAUSE 1 - CORPORATE NAME
The company's name shall be Mobil Rom. The company shall also use the logo
described in Annex 1 to the Articles of Association attached hereto as Annex A.
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.
CLAUSE 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 n0 31/1990, lawn0 35/1991 as modified by
law n0 57/93, the Articles of Association attached hereto as Annex A and the
provisions of this Company Agreement.
The company's legal form may be changed by a resolution of the General Meeting
of shareholders, in accordance with the requirements set out in this Company
Agreement and the Articles regarding quorum and majority.
COMPANY AGREEMENT 4
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 this Company Agreement and the Articles. 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.
CLAUSE 3 - REGISTERED OFFICE
The registered office of the company is situated at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇
▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
It may be transferred to any other address in Romania by resolution of the
General Meeting of shareholders in accordance with Romanian law.
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.
CLAUSE 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 the Articles.
CLAUSE 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 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;
COMPANY AGREEMENT 5
(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.
CLAUSE 6 - SHARE CAPITAL
Final amount of share Capital in Lei (equivalent of US $ 120,000,000) to be
determined according to the Lez/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 this Company
Agreement and the Articles, this is the equivalent in Lei of US ~ 120
million, (applying an exchange rate of [_______ rate published by the
Central Bank of Romania on the date of signature of the Company Agreement
and the Articles of Association before a public notary, which shall occur
not less that 15 days following the official announcement by the Ministry y
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 oflawn03l/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 IS
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 12,000______].
The company's shares have been subscribed and partially paid up on the date
of signature of the Company Agreement and the Articles, as follows:
1. FTMI: 6, 20 shares representing 51 % of the company's share capital,
and having a total nominal value of Lei [________] 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: 720 shares representing 6 % of the company's share capital and
having a total nominal value of Lei [________] and of which 30 % or
Lei [________] has been paid up in cash.
3. Alcatel Romania: 360 shares representing 3 % of the company's share
capital and having a total nominal value of Lei [________], and of
which 30% has been paid up in cash;
COMPANY AGREEMENT 6
4. Computerland: 600 shares representing 5 % of the company's share
capital and having a total nominal value of Lei [________], and of
which 30 % or Lei [________] has been paid up in cash;
5. Radcom: 600 shares representing 5 % of the company's share capital and
having a total nominal value of Lei [________], and of which 30 O/o or
Lei [________] has been paid up in cash;
6. Mediacom: 2,400 shares representing 20 % of the company's share
capital and having a total nominal value of Lei [________], and of
which 30 % or Lei [________] has been paid up in cash; and
7. Unimedia: 1,200 shares representing 10 % of the company's share
capital and having a total nominal value of Lei [________], and of
which 30 % or Lei [________] has been paid up in cash.
The shareholders have the respective corporate name and principal
office and are organised and existing under the laws of the country
set out for each of them at the beginning of this Company Agreement.
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.
6.3 The company's share capital may be increased or decreased in accordance
with the terms of the Articles.
CLAUSE 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.
CLAUSE 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
n0 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 Articles and this Company Agreement. The holding of a share implies the
obligation to abide by the terms of this Company Agreement and the Articles,
particularly in respect of the transfer of shares.
COMPANY AGREEMENT 7
CLAUSE 9 - GENERAL MEETING OF SHAREHOLDERS
9.1 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 of the Articles 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.
9.2 General Meetings of shareholders may be ordinary ("Ordinary General
Meetings") or extraordinary ("Extraordinary General Meetings").
9.3 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 of the Articles;
(d) dismissal of any members 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.
9.4 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 percent (10%)
COMPANY AGREEMENT 8
of the capital of the company or (iii) by a Director pursuant to Article
14.2 of the Articles.
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 Clause 9.4.
Resolutions on any subject may be considered at Extraordinary General
Meetings. However, decisions on the following matters shall be taken
exclusively at an Extraordinary General Meeting:
(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;
(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.
9.5 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.
9.6 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.
9.7 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
COMPANY AGREEMENT 9
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.
CLAUSE 10 - GENERAL MEETINGS OF SHAREHOLDERS - CONDITIONS OF ATTENDANCE - QUORUM
- RIGHT OF VOTE
l0.1 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.
10.2 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 n0 31/1990, except that decisions specified in
paragraphs (d), (h), and (i) of Clause 9.3 above are passed by a vote in
favour of at least 75 % of the share capital present or represented at the
General Meeting. .
10.3 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 n0 31/1990, except that (a)decisions specified in
paragraphs (a) to (f) of Clause 9.4 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
Clause 9.4 above are passed by a vote in favour of at least 90 % of the
share capital present or represented at the General Meeting.
10.4 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.
10.5 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.
10.6 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.
CLAUSE 11 - BOARD OF DIRECTORS
11.1 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:
COMPANY AGREEMENT 10
(a) during such time as Unimedia 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 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 [__ or Substitutled 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 FTMJ.
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.
In the event of any vacancy on the Board of Directors, a General Meeting
of shareholders shall be convened to appoint the missing member.
11.2 The first Board of Directors shall be appointed on the company's setting
up date and shall be composed as follows.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ a Romanian national
▇▇▇▇▇▇▇ ▇▇▇▇▇ a Romanian national
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ a US national
▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ a French national
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ a French national
Mr ▇▇▇▇-▇▇▇▇~ois BEALDOIN a French national
Mrs Chantal CRAVE a French national
11.3 Meetings of the Board of Directors shall be held in accordance with
Article 14 of the Articles and the powers and duties of the Board shall be
as specified in the said Article.
CLAUSE 12 - AUDITORS
The company shall have a single auditor. The first such auditor shall be Mihela
Danalache, a Romanian national with ▇▇▇▇▇▇▇ ▇▇▇▇▇, also a Romanian national)
acting as alternate.
CLAUSE 13 - ALLOCATION AND DISTRIBUTION OF PROFITS
13.1 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, this Company Agreement and
the Articles of Association.
13.2 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.
COMPANY AGREEMENT 11
13.3 The Chairman of the Board of Directors shall register a copy of the
company's balance sheet and profit and 1055 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.
CLAUSE 14 - ARBITRATION
The shareholders and the company shall seek to resolve by amicable settlement
any dispute arising between them in relation to this Company Agreement.
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.
CLAUSE 15 - PRE-REGISTRATION ACTS AND EXPENSES
It is acknowledged that, pursuant to Clause 4 of the General Agreement, the sums
described in Annex B were incurred by FTMI, Unimedia, Mediacom, Computerland and
Radcom on behalf of the company prior to its registration and the shareholders
agree that such sums shall be reimbursed to FTMI, Unimedia, Mediacom,
Computerland and Radcom by the company promptly after its registration.
It is also acknowledged that the acts and obligations described in Annex B were
carried out or assumed by the shareholders on behalf of the company prior to it
registration and the shareholders shall cause the company to ratio such acts and
obligations in accordance with Romanian law immediately following its
registration.
CLAUSE 16 - FINAL PROVISIONS
This Company Agreement shall come into effect on the registration of the company
at the commercial registry.
This Company Agreement may be modified from time to time in accordance with
Article 12 of the Articles of Association.
The Company Agreement is executed in the number of copies required by Romanian
law.
All the copies have the same legal value.
COMPANY AGREEMENT 12
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_____] before [oooooo] public notary
FRANCE TELECOM MOBILES INTERNATIONAL:
[___or Substituted Entity pursuant to Clause 32 of the General Agreement__]:
Signature: _____________________
TOMEN TELECOM PROJECT (ROMANIA) CO SRL:
Signature: _____________________
ALCATEL NETWORK SYSTEMS ROMANIA SA:
Signature: _____________________
MBL COMPUTERS SRL (trading as Computerland):
Signature: _____________________
RADCOM SRL
Signature: _____________________
COMPANY AGREEMENT 13
MEDIACOM 95 SRL:
Signature: _____________________
UNIMEDIA:
Signature: _____________________
ANNEX B
PRE-REGISTRATION ACTS AND EXPENSES
-----------
This annex shall list the costs and expenses incurred by FTMI, Unimedia,
Mediacom, Computerland and Radcom in respect of the preparation and promotion of
the GSM Offer and the incorporation of the Company, provided that such amounts
are either within the relevant budget or limits specified in the General
Agreement or have otherwise been approved by the Executive Committee set up
under the General Agreement.
The annex shall also list the undertakings and other obligations undertaken on
behalf of the Company pursuant to the General Agreement. These shall consist in
particular of undertakings made in the GSM Offer and contracts concluded prior
to the registration of the Company.
