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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
--------------------
Amendment No. 1
FORM U5S/A
ANNUAL REPORT
For the Fiscal Year Ended September 30, 1996
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Filed Pursuant to the
Public Utility Holding Company Act of 1935
by
National Fuel Gas Company
10 Lafayette Square, Buffalo, NY 14203
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<PAGE>
EXHIBITS
A. *(1) Annual Report on Form 10-K for fiscal year ended September 30,
1996 filed December 20, 1996 (File No. 1-3880).
(2) National Fuel Gas Company 1996 Annual Report to Shareholders
(paper copy submitted under cover of Form SE).
*(3) National Fuel Gas Company Proxy Statement, dated and filed
December 30, 1996 (File No. 1-03880)
B. Articles of Incorporation, By-Laws and Partnership Agreements
(1) National Fuel Gas Company
*i Restated Certificate of Incorporation of National Fuel
Gas Company, dated March 15, 1985 (Exhibit 10-00, Form
10-K for fiscal year ended September 30, 1991 in File
No.
1-3880)
*ii Certificate of Amendment of Restated Certificate of
Incorporation, dated March 17, 1992 (Exhibit EX-3(a),
Form 10-K for fiscal year ended September 30, 1992 in
File No. 1-3880)
*iii National Fuel Gas Company By-Laws as amended through
June 9, 1994. (Exhibit 3.1, Form 10-K for fiscal year
ended September 30, 1994 in File No. 1-3880)
*iv Certificate of Amendment of Restated Certificate of
Incorporation of National Fuel Gas Company, dated
March 9, 1987 (Exhibit 3.1, Form 10-K for fiscal year
ended September 30, 1995 in File No. 1-3880)
*v Certificate of Amendment of Restated Certificate of
Incorporation of National Fuel Gas Company, dated
February 22, 1988 (Exhibit 3.2, Form 10-K for fiscal
year ended September 30, 1995 in File No. 1-3880)
*vi Excerpts from Minutes from National Fuel Gas Company
Board of Directors meeting of September 19, 1996,
regarding compensation of non-employee directors and
related amendments of By-Laws (Exhibit 3.1, Form 10-K
for fiscal year ended September 30, 1996 in File No.
1-3880)
(2) National Fuel Gas Distribution Corporation
*i By-Laws, as amended (Exhibit 2(i), designated as
Exhibit EX-3(b) for EDGAR purposes, Form U5S for
fiscal year ended September 30, 1994)
*ii Restated Certificate of Incorporation of National Fuel
Gas Distribution Corporation, dated May 9, 1988
(Exhibit B-1 in File No. 70-7478)
* Incorporated herein by reference as indicated.
<PAGE>
EXHIBITS (Continued)
(3) National Fuel Gas Supply Corporation
*i By-Laws, as amended (Exhibit (3) i, Form U5S for
fiscal year ended September 30, 1989)
*ii Articles of Incorporation of United Natural Gas
Company, dated February 1, 1886 (Exhibit (3)ii, Form
U5S for fiscal year ended September 30, 1984)
*iii Certificate of Merger and Consolidation dated January
2, 1951 (Exhibit (3)iii, Form U5S for fiscal year
ended September 30, 1984)
*iv Joint Agreement and Plan of Merger, dated June 18,
1974. (Exhibit (3) iv, Form U5S for
fiscal year ended September 30, 1987)
*v Certificate of Merger and Plan of Merger of Penn-York
Energy Corporation and National Fuel Gas Supply
Corporation dated April 1, 1994. (Exhibit (3)v,
designated as Exhibit EX-99-3 for EDGAR purposes, Form
U5S for fiscal year ended September 30, 1994)
(4) Leidy Hub, Inc. (Formerly Enerop Corporation)
*i By-Laws (Exhibit A-15, File No. 70-7478)
*ii Restated Articles of Incorporation of Enerop
Corporation dated April 13, 1988 (Exhibit B-4 in File
No. 70-7478)
*iii Action by Board of Directors to amend the By-Laws
dated October 10, 1993 including a Restated
Certificate of Incorporation of Enerop Corporation
dated October 15, 1993 (Exhibit (4)iii, designated as
Exhibit EX-3 for EDGAR purposes, Form U5S for fiscal
year ended September 30, 1993)
*iv Partnership Agreement between Leidy Hub, Inc. and Hub
Services, Inc. dated September 1, 1994. (Exhibit
(4)iv, designated as Exhibit EX-99-1 for EDGAR
purposes, Form U5S for fiscal year ended September 30,
1994)
*v Ellisburg-Leidy Northeast Hub Company Admission
Agreement dated June 12, 1995. (Exhibit (4)v,
designated as Exhibit EX-99-1 for EDGAR purposes, Form
U5S for fiscal year ended September 30, 1995)
*vi Letter Agreement between Leidy Hub, Inc. and Hub
Services, Inc. dated June 12, 1995. (Exhibit (4)vi,
designated as Exhibit EX-99-2 for EDGAR purposes, Form
U5S for fiscal year ended September 30, 1995)
*vii Consent and waiver by Leidy Hub, Inc. dated June 12,
1995. (Exhibit (4)vii, designated as Exhibit EX-99-3
for EDGAR purposes, Form U5S for fiscal year ended
September 30, 1995)
* Incorporated herein by reference as indicated.
<PAGE>
EXHIBITS (Continued)
viii Limited Liability Company Agreement of Enerchange,
L.L.C. dated June 12, 1995 and related documents.
Designated as Exhibit EX-99-1 for EDGAR purposes.
[Portions of this document are subject to a request
for confidential treatment under Rule 104(b)]
(5) Seneca Resources Corporation
*i By-Laws, as amended (Exhibit (5) i, Form U5S for
fiscal year ended September 30, 1989)
*ii Articles of Incorporation of Mars Natural Gas Company
dated March 29, 1913 (Exhibit (5)ii, Form U5S for
fiscal year ended September 30, 1984)
*iii Secretary's Certificate dated January 4, 1918 (Exhibit
(5)iii, Form U5S for fiscal year ended September 30,
1984)
*iv Articles of Amendment, dated March 30, 1955 (Exhibit
(5)iv, Form U5S for fiscal year ended September 30,
1984)
*v Certificate of Amendment changing name of the Mars
Company to Seneca Resources Corporation, January 29,
1976 (Exhibit (5)v, Form U5S for fiscal year ended
September 30, 1984)
*vi Certificate of Merger and Plan of Merger of Seneca
Resources Corporation and Empire Exploration, Inc.
dated April 29, 1994. (Exhibit (5)vi, designated as
Exhibit EX-99-2 for EDGAR purposes, Form U5S for
fiscal year ended September 30, 1994)
*(6) Limited Partnership Agreement dated November 28, 1983, between
Empire Exploration, Inc. (now Seneca Resources Corporation)
as general partner and Herman P. Loonsk as limited partner
(Exhibit (8), Form U5S for fiscal year ended September 30,
1984)
*(7) Empire 1983 Drilling Program, Limited Partnership Agreement,
dated November 28, 1983, between Empire Exploration, Inc.,
(now Seneca Resources Corporation) as general partner and
those parties collectively called limited partners. (Exhibit
(9), Form U5S for fiscal year ended September 30, 1984)
*(8) Empire 1983 Joint Venture Agreement dated December 6, 1983
between Empire Exploration, Inc. (now Seneca Resources
Corporation) and Empire 1983 Drilling Program (Exhibit (10),
Form U5S for fiscal year ended September 30, 1984)
(9) Highland Land & Minerals, Inc.
*i Certificate of Incorporation, dated August 19, 1982
(Exhibit (11)i, Form U5S for fiscal year ended
September 30, 1985)
*ii By-Laws (Exhibit (11) ii, Form U5S for fiscal year
ended September 30, 1987)
* Incorporated herein by reference as indicated.
<PAGE>
EXHIBITS (Continued)
(10) Utility Constructors, Inc.
*i Articles of Incorporation, dated December 23, 1986,
and certificate of amendment dated December 31, 1986.
(Exhibit (12)i, Form U5S for fiscal year ended
September 30, 1987)
*ii By-Laws (Exhibit (12) ii, Form U5S for fiscal year
ended September 30, 1987)
(11) Data-Track Account Services, Inc.
*i Restated Articles of Incorporation, dated March 2,
1984 (Exhibit A-1, File No. 70-7512)
*ii By-Laws (Exhibit A-2, File No. 70-7512)
(12) National Fuel Resources, Inc.
*i Articles of Incorporation, dated January 9, 1991.
(Exhibit (14)i; designated as Exhibit EX-3(a) for
EDGAR purposes, Form U5S for fiscal year ended
September 30, 1992)
*ii By-Laws (Exhibit (14)ii; designated as Exhibit EX-3(b)
for EDGAR purposes, Form U5S for fiscal year ended
September 30, 1992)
(13) Horizon Energy Development, Inc.
*i Certificate of Incorporation. (Exhibit (13)i,
designated as Exhibit EX-3(a) for EDGAR purposes, Form
U5S for fiscal year ended September 30, 1995)
*ii By-Laws. (Exhibit (13)ii, designated as Exhibit
EX-3(b) for EDGAR purposes, Form U5S for fiscal year
ended September 30, 1995)
*iii Partnership agreement of Sceptre Power Company, dated
September 15, 1995. (Exhibit (13)iii, designated as
Exhibit EX-99-4 for EDGAR purposes, Form U5S for
fiscal year ended September 30, 1995) [Portions of the
agreement are subject to confidential treatment under
Rule 104(b).]
(14) Beheeren-Beleggingmaatschappij Bruwabel B.V. Articles of
Incorporation. Designated as exhibit EX-99-2 for EDGAR
purposes.
(15) Power International, s.r.o.
**i Founding Notarial Deed, dated May 8, 1991. Designated
as Exhibit EX-99-9 for EDGAR purposes.
**ii Notarial Deed, dated December 2, 1993. Designated as
Exhibit EX-99-10 for EDGAR purposes.
* Incorporated herein by reference as indicated.
** Indicates item amended by this Form U5S/A. This exhibit is included as
part of this filing of Form U5S/A.
<PAGE>
EXHIBITS (Continued)
**iii Notarial Deed, dated June 28, 1996. Designated as
Exhibit EX-99-11 for EDGAR purposes.
**iv Notarial Deed, dated November 27, 1996. Designated as
Exhibit EX-99-12 for EDGAR purposes.
(16) Power Development, s.r.o.
**i Founding Notarial Deed, dated May 4, 1994. Designated
as Exhibit EX-99-13 for EDGAR purposes.
**ii Notarial Deed, dated June 28, 1996. Designated as
Exhibit EX-99-14 for EDGAR purposes.
**iii Notarial Deed, dated November 27, 1996. Designated as
Exhibit EX-99-15 for EDGAR purposes.
**(17) Teplarna Kromeriz a.s. Statutes, dated June 1996. Designated
as Exhibit EX-99-16 for EDGAR purposes.
(18) KPP Investment, L.L.C.
i Limited Liability Company Agreement dated January 11,
1996. Designated as exhibit EX-99-3 for EDGAR
purposes.
ii Certificate of Formation, dated January 15, 1997.
Designated at Exhibit EX-99-4 for EDGAR purposes.
(19) Sceptre Kabirwala, L.L.C.
i Limited Liability Company Agreement dated January 26,
1996. Designated as exhibit EX-99-5 for EDGAR
purposes.
ii Certificate of Formation, dated January 10, 1997.
Designated as Exhibit EX-99-6 for EDGAR purposes.
C. Indentures
* Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit
2(b) in File No. 2-51796)
* Third Supplemental Indenture dated as of December 1, 1982, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a)(4)
in File No. 33-49401)
* Ninth Supplemental Indenture dated as of January 1, 1990, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit EX-4-4,
Form 10-K for fiscal year ended September 30, 1992 in File No.
1-3880)
* Incorporated herein by reference as indicated.
** Indicates item amended by this Form U5S/A. This exhibit is included as
part of this filing of Form U5S/A.
<PAGE>
EXHIBITS (Concluded)
* Tenth Supplemental Indenture dated as of February 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a),
Form 8-K dated February 14, 1992 in File No. 1-3880)
* Eleventh Supplemental Indenture dated as of May 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(b),
Form 8-K dated February 14, 1992 in File No. 1-3880)
* Twelfth Supplemental Indenture dated as of June 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(c),
Form 8-K dated June 18, 1992 in File No. 1-3880)
* Thirteenth Supplemental Indenture dated as of March 1, 1993, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4(a)(14)
in File No. 33-49401)
* Fourteenth Supplemental Indenture dated as of July 1, 1993, to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4.1, Form
10-K for fiscal year ended September 30, 1993 in File No. 1-3880)
* Fifteenth Supplemental Indenture dated as of September 1, 1996 to
Indenture dated as of October 15, 1974, between the Company and The
Bank of New York (formerly Irving Trust Company) (Exhibit 4.1, Form
10-K for fiscal year ended September 30, 1996 in File No. 1-3880)
* Rights Agreement between National Fuel Gas Company and Marine
Midland Bank dated June 13, 1996 (Exhibit 99.1, Form 8-K dated
June 13, 1996 in File No. 1-3880)
D. * Tax Allocation Agreement pursuant to Rule 45(c). (Exhibit (D),
designated as EX-99-5 for EDGAR purposes, Form U5S for fiscal year
ended September 30, 1995)
E. * (1) Filing pursuant to Rule 48(b) (Exhibit (E), Form U5S for
fiscal year ended September 30, 1991)
(2) Enerchange, L.L.C. Audited Financial Statements as of
December 31, 1995. Filed in paper only under cover of Form SE
as prescribed by Rule 16(c).
F. Schedules of Supporting Items of this Report - None.
G. Financial Data Schedules. (Designated as Exhibit EX-27 for EDGAR
purposes.)
H. Organization chart showing relationship to exempt wholesale generator.
Designated as exhibit EX-99-7 for EDGAR purposes.
* Incorporated herein by reference as indicated.
<PAGE>
EXHIBITS (Concluded)
I. Fauji Kabirwala Power Company Limited, Accounts for the year ended
June 30, 1996. Designated as exhibit EX-99-8 for EDGAR purposes.
<PAGE>
S I G N A T U R E
The undersigned System company has duly caused this amendment to be
signed on its behalf by the undersigned thereunto duly authorized pursuant to
the requirements of the Public Utility Holding Company Act of 1935.
NATIONAL FUEL GAS COMPANY
By: /s/ Joseph P. Pawlowski
------------------------------------
Joseph P. Pawlowski, Treasurer
and Principal Accounting Officer
Date: February 18, 1997
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<PAGE>
EXHIBIT INDEX
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EX99-9 Power International, s.r.o., Founding Notarial Deed, dated May 8, 1991.
EX99-10 Power International, s.r.o., Notarial Deed, dated December 2, 1993.
EX99-11 Power International, s.r.o., Notarial Deed, dated June 28, 1996.
EX99-12 Power International, s.r.o., Notarial Deed, dated November 27, 1996.
EX99-13 Power Development, s.r.o., Founding Notarial Deed, dated May 4, 1994.
EX99-14 Power Development, s.r.o., Notarial Deed, dated June 28, 1996.
EX99-15 Power Development, s.r.o., Notarial Deed, dated November 27, 1996.
EX99-16 Teplarna Kromeriz a.s., Statutes, dated June 1996.
8 N 128/91
8 NZ 115/91
NOTARIAL DEED
drawn on the eighth of May one thousand nine hundred ninety one (08/05/1991)
before me, JUDr. Eva Jaklova, Notary Public, in the presence of the participant
who is, pursuant to his declaration, competent to perform legal acts, whose
identity was proved in the manner prescribed by law.
Dipl Ing. Jan Myslivec, born on 24/05/1946, married, residing at Glenbrook Dr,
Box 1066 Hailey, Idaho 83333, the U.S.A.
The aforementioned participant, Dipl Ing. Jan Myslivec has taken the following
action in my presence
declaration of the establishment of the limited liability company
pursuant to the provision of Sec 106 and following of the Act No 104/90
Coll.
First: Dipl Ing. Jan Myslivec declares that he establishes the limited
liability company.
Second: The business name of the Company shall be "POWER INTERNATIONAL, limited
liability company"
Third: The registered office of the Company shall be Prague.
The address of POWER INTERNATIONAL shall be Prague 4, Pod Klaudiankou
21.
The sole founder of the Company shall be Dipl Ing. Jan Myslivec.
Fourth: The object of the business of POWER INTERNATIONAL s.r.o. shall be:
Consulting and intermediation activities in the field of energy,
environment protection, building industry, telecommunications, geodesy,
geology, real estate agency, acquisition and formation of enterprises
and companies, management and representation of such enterprises and
companies. Apart from such activities, the company is authorized to
take all actions, businesses and steps, which are necessary for
achieving the purposes of the Company, including but not limited to,
the acquisition and formation of enterprises and companies as well as
the management and representation of such enterprises and companies.
Participation in other enterprises and companies as well as the
takeover of the management and representation of such enterprises and
companies. Formation and operation of branches in the Czech Republic as
well as abroad. Takeover of respective business representatives. Real
estate agency, the establishment of operational buildings.
1
<PAGE>
Fifth: The Registered Capital of the company is 100.000,-CZK (one hundred
thousand Czech Crowns).
Sixth: The Company shall be established for an indefinite period. The Company
shall be formed upon its incorporation into the Commercial Register.
Seventh: The Founder shall be liable for any obligations of the company to the
creditors with the property of the Company.
Eighth: The participant shall decide on change of the business upon
the fulfilment of all conditions stipulated in generally binding legal
regulations. The object of the business may be changed and the
registered capital may be increased or decreased only under the
aforementioned circumstances.
Ninth: Participation in the Company:
The sole participant of the Company may decide on the appointment of
another participant which may be represented by an individual or a
legal entity, both Czech and foreign. The new participants shall
explicitly state that they accede to the Company in accordance with
this Deed of Foundation.
Tenth: Rights and Duties of the participant and participants shall be governed
by general legal regulations and this Notarial Deed.
Eleventh: Bodies of the Company and their Representation:
Bodies of the Company: The founder of the Company shall represent the
Company with regard to third parties and this founder, who is in the
capacity of Director of the Company, shall sign for the Company.
Participation in the company may acquired by inheritance of the
participation interest and the transfer of the participation interest
or a part of such participation interest to any individual or legal
entity.
Twelfth: Financial situation, Accounting, Records Keeping of the Company:
The Company shall establish a reserve fund amounting up to 10% of the
registered capital. The participant shall not be liable for the
obligations of their employees as well as employees shall not be liable
for the obligations of the Company, unless they explicitly have
accepted such guarantee. The financial statement shall be made annually
or it may be done for shorter period. The Company processes, records
and provides records on their activity to administrative state bodies
according to generally binding legal regulations.
Thirteenth: The participant shall be bound to divide the profits and cover the
losses: the net profit is represented by the difference between the
total incomes and expenses upon prescribed deduction. The reserve fund
shall be supplemented by 5% of the net profit prior division of
2
<PAGE>
the net profit among the participants. When the reserve fund reaches
the level of 10% of the registered capital, further investment to such
fund shall be canceled. The profit after all deductions shall be
divided among the participants. The reserve fund may be used to cover
possible losses of the company. If it is not sufficient, then the
registered capital shall be used, resp. the participation interests of
the participants in equal amounts.
Fourteenth: Winding up of the Company:
The company may be wound up by the decision of the participants, the
bankruptcy petition, the court decision and by other cases stipulated
by the generally binding legal regulations. The Company shall wind up
upon the liquidation and deletion of the Company in the companies
register. Liquidation of the Company shall be done by a liquidator who
has been designated by the Participant.
The counterpart of the Notarial Deed has been issued to Dipl Ing. Jan Myslivec.
I hereby confirm that I have drawn up this Notarial Deed and the Participant has
read, approved and attached handwritten signature.
/round stamp/
Notary Public for Prague
3
<PAGE>
I confirm hereby that this counterpart of the notarial deed is fully identical
to the 2 page original of the Notarial Deed recorded in the Collection of
Notarial Deeds of 1991 under reference number 8 HZ 115/91 with the District
Court in Prague 9. District Court in Prague 8 with its registered office at
Prague 1, Dlazdena 5, on the twenty-third of May one thousand nine hundred
ninety-six (23/05/1996)
/round stamp/ Alena Sodomkova
Court Secretary
4
JUDr. Emil Hernych, Notary, Celetna 30, Praha 1, tel. 2422 8785
NZ 541/93
N 553/93
ORIGINAL
NOTARIAL RECORD
recorded on 2.12.1993, in words on the second December of the year one thousand
nine hundred ninety three, in front of me, JUDr. Emil Hernych, notary of Prague
1, Celetna 38, in my office.
JUDr. Petr Svingr, born on 19.2.1943, of Prague 8, Slancova 1257/12,
not known in person to the notary, according to his own resolution legally
capable, whose identity was verified from his identity card No. 679929 HD, as
the representative of BEHEER - EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.,
established in Croeselaan 18, 3521 CB Utrecht, Holland, according to the power
of attorney from 16.11.1993, which is the part of this notarial record, came
today to me as a party.
This authorized party asked the notary to certify this
r e s o l u t i o n,
by which the Deed of Foundation of POWER International s.r.o. from 8.5.1991,
written by the State Notary Office of Prague 8, No. 8Nl28/91 and 8NZ115/91 in
the reading of changes and amendments carried by notarial record from 18.5.1993
in front of the notary JUDr. Alena Klocova, No. NZ64/93 and N65/93, is being
changed.
I.
The name of the company POWER International is not
being changed.
II.
The domicile of the company is being changed. The new domicile of the company is
Prague 1, Maiselova 15.
This notarial record was written, read by the party, fully approved,
and signed by his own hand. Also the notary signed this record by his own hand
and sealed by the round official stamp.
JUDr. Petr Svingr (signature) JUDr. Emil Hernych (signature)
Notary
<PAGE>
Page two
I confirm, that the originals of this notarial record, which
are determined for POWER s.r.o., are word for word and fully identical with the
primary original of the notarial records No. NZ 541/93, N 553/93 from 2.12.1993,
filed in the collection of documents of the notary JUDr. Emil Hernych, of Prague
1, Celetna 38.
Prague, 2.12.1993
JUDr. Emil Hernych
Notary
(seal, signature)
NZ 104/96
N 120/96
COUNTERPART
NOTARIAL DEED
prepared on 28 June 1996 (the twenty-eighth of June nineteen hundred ninety-six)
by myself, JUDr. Iva Filipova, a Notary Public for Prague, with my seat at Praha
1, Vaclavske namesti 56.
A party known personally to me, and according to her declaration capable of
legal acts:
JUDr. Andrea Bednarikova, birth certificate number: 675514/0656, residing at
Prague 5, Ovci hajek 2161.
JUDr. Andrea Bednarikova declares that she is authorized to act on behalf of the
company BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. with its registered
office at 3521 CB Utrecht, Croeselaan 18, Holland, the founder and sole
participant of POWER International, spol. s.r.o. with its seat at Prague 1,
Maiselova 15, ICO: 40612490, registered at the Commercial Register at the
Regional Commercial Court of Prague, Section C, File No. 2064.
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. has authorized the executive of
POWER INTERNATIONAL, spol. s.r.o., Vladimir Prerad, residing at Prague 5, Na
Srpecku 6, to take all legal actions which BEHEER-EN BELEGGINGSMAATSCHAPPIJ
BRUWABEL B.V., as the sole participant of POWER International, spol. s.r.o., may
take in accordance with law.
The Power of Attorney shall be attached to the Notarial Deed as Exhibit no. I
On 27 June 1996, Vladimir Prerad granted to JUDr. Andrea Bednarikova a Power of
Attorney entitling her to implement the acts detailed below. This Power of
Attorney shall be attached to the Notarial Deed as Exhibit no. 2.
It was stated that the extraordinary general meeting of the company POWER
International, spol. s r.o., which was convened and attended by a representative
of the sole participant - BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.,
resolved that the company's registered capital would be increased from the
original amount of 100,000 CZK (in words: one hundred thousand Czech Crowns) to
59,986,972 CZK (fifty-nine million nine hundred eighty-six thousand nine hundred
seventy-two Czech Crowns). The company's registered capital was increased by a
nonmonetary contribution of 59,886,972 (fifty-nine million eight hundred
eightysix thousand nine hundred seventy-two Czech Crowns). The nonmonetary
contribution shall be effected by forgiving certain debts (totaling 59,886,972
CZK) owed by POWER International, spol. s.r.o. to BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
<PAGE>
On 24 June 1996, POWER International, spol. s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nom-nonetary contribution to the Registered Capital. The
nonmonetary contribution was appraised by an expert opinion from the court-sworm
expert Ing. Milan Vodi6ka on 18 June 1996.
JUDr. Andrea Bednarikova, representing BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL
B. V. and with respect to the above mentioned means of increasing the registered
capital of POWER International, spol. s.r.o. and to the Power of Attorney vested
to her on 27 June 1996, asked me to draw this.
Amendment to the Deed of Foundation of the limited liability company
POWER International
The following is the amended version of the "Fifth" article of the Deed of
Foundation of POWER International, spol. s.r.o. of 8 May 1991:
The Company's registered capital amounting to 59,986,972 CZK (in words:
fifty-nine million nine hundred eighty-six thousand nine hundred seventy-two
Czech Crowns) includes the monetary contribution of 100,000 CZK (in words: one
hundred thousand Czech Crowns) and the nonmonetary contribution of 59,886,972
CZK (in words: fifty-nine million eight hundred eighty-six thousand nine hundred
seventy-two Czech Crowns).
The monetary contribution was fully paid up by the date of the company's
application to be incorporated in the Commercial Register.
The nonmonetary contribution shall effect the forgiveness of certain debts
(totaling 59,886,972 CZK) owed by POWER International, spol. s.r.o. to BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. On 24 June 1996, POWER International, spol.
s r.o. concluded with BEHEER-EN BELEGGINGSAATSCHA-PPIJ BRUWABEL B.V. the Debt
for Equity Agreement obliging BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to
take over all obligations regarding the nonmonetary contribution to the
registered capital. The nonmonetary contribution was appraised by an expert
opinion from the court-swom expert Ing. Milan Vodicka on 18 June 1996.
The sum of the above mentioned capital contributions creates a one hundred
percent participation interest of the participant of the company.
<PAGE>
Three copies of this document were handed over to JUDr. Andrea Bednarikova.
The Notarial Deed has been drawn, read and fully approved and finally signed by
the party. Then I, the state notary, signed this document and provided it with
an official stamp.
Andrea Bednarikova, v.r.,
representing BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
L.S.
Iva Filipova v.r.
NZ 233/96
N 267/96
COUNTERPART
NOTARIAL DEED
prepared on 27 November 1996 (the twenty-seventh of June nineteen hundred
ninety-six) by myself, JUDr. Iva Filipova, a Notary Public for Prague, with my
seat at Praha 1, Vaclavske namesti 56.
A party known personally to me, and according to her declaration capable of
legal acts:
JUDr. Andrea Bednarikova, birth certificate number: 675514/0656, residing at
Prague 5, Ovci hajek 2161.
JUDr. Andrea Bednarikova declares that she is authorized to act on behalf of the
company BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. with its registered
office at 1017 Amsterdam, Leidseplein 29, Holland (its former seat was at 3521
CB Utrecht, Croeselaan 18, Holland), the founder and sole participant of POWER
International, spol. s.r.o. with its seat at Prague 1, Maiselova 15, ICO:
40612490, registered at the Commercial Register at the Regional Commercial Court
of Prague, Section C, File No. 2064.
The Power of Attorney, which was granted to JUDr. Andrea Bednarikova by the
director of this company, Intra Beheer B.V., with its seat at 1017 PS Amsterdam,
Leidseplein 29, Holland, represented by its directors - G. Loss and F. De
Hosson, on 13 November 1996, shall be enclosed to the Notarial Deed.
JUDr. Andrea Bednarikova asked me to certify
The Minutes of the General Meeting of POWER International, s.r.o.
Pursuant to sec. 132 of the Commercial Code, the powers of the General Meeting
shall be carried out by the sole participant and founder - BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V., with its seat at 1017 PS Amsterdam,
Leidseplein 29, Holland (its former seat was at 3521 CB Ultrech, Croeselaan 18,
Holland) represented by JUDr. Andrea Bednarikova vested by a power of attorney
on 13 November 1996.
JUDr. Andrea Bednarikova stated that the sole participant did not insist on
observing the period prescribed by law for notifying the date of the general
meeting.
Due to the fact that the general meeting is attended only by the sole
participant (or that the powers of the general meeting are carried out only by
the sole participant), the bodies of the general meeting shall not be elected.
<PAGE>
The following agenda for the general meeting has been designated:
- - - the increase of the company's registered capital
- - - amendments to the Deed of Foundation
The following has been stated:
The registered capital of POWER International, s.r.o. in the amount of 100,000
CZK has been fully paid up.
On 24 June 1996, the extraordinary General Meeting of the company POWER
International, spol. s.r.o., which was convened and attended by a representative
of the sole participant BEHEER-EN BELEGGINGSNIAATSCHAPPIJ BRUWABEL B.V.,
resolved that the company's registered capital would be increased from the
original amount of 100,000 CZK (in words: one hundred thousand Czech Crowns) to
59,986,972 CZK (fifty-nine million nine hundred eighty-six thousand nine hundred
seventy-two Czech Crowns). The company's registered capital was increased by a
nonmonetary contribution of 59,886,972 (fifty-nine million eight hundred
eighty-six thousand nine hundred seventy-two Czech Crowns). The nonmonetary
contribution shall effect the forgiveness of certain debts (totally 59,886,972
CZK) owed by POWER International, spol. s.r.o. to BEHEER-EN
BELEGGINGSNIAATSCHAPPIJ BRUWABEL B.V.
On 24 June 1996, POWER International, spol. s.r.o. concluded with BEHEER-EN
BELEGGINGSNAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nonmonetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 59,986,972 CZK to the amount of 59,986,000 CZK. The nonmonetary
contribution was appraised by an expert opinion from the court-sworm expert Ing.
Milan Vodicka on 18 June 1996.
Afterwards, the general meeting adopted the following resolution:
1) It has been resolved that the company's registered capital will be increased
from the original amount of 100,000 CZK (in words: one hundred thousand Czech
Crowns) to 59,986,972 CZK (fifty-nine million nine hundred eighty-six thousand
nine hundred seventy-two Czech Crowns). It has been resolved that the increase
of the registered capital will be carried out upon a nonmonetary contribution of
59,886,972 CZK (fifty-nine million eight hundred and eighty six thousand nine
hundred and seventy two Czech Crowns) so that certain debts owed by POWER
International, spol. s.r.o. to BEBEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
will be forgiven by the aforementioned company. Pursuant to sec. 109 (2) of the
Commercial Code, the debts have been rounded down to the amount of 59,886,000
CZK.
<PAGE>
On 24 June 1996, POWER International, spol. s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the non-monetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 59,986,972 CZK to the amount of 59,986,000 CZK. The nonmonetary
contribution was appraised by an expert opinion from the court-sworn expert Ing.
Milan Vodicka on 18 June 1996.
2) In accordance with the aforementioned means of effecting the increase of the
registered capital of POWER International, s.r.o., the following amended version
of the "Fifth" article of the Deed of Foundation of POWER International, s.r.o.
of 8 May 1991 has been adopted:
The company's registered capital in the amount of 59,986,000 CZK (in words:
fifty-nine million nine hundred eighty-six thousand Czech Crowns) includes a
monetary contribution of 100,000 CZK (in words: one hundred thousand Czech
Crowns) and a nonmonetary contribution of 59,886,000 CZK (in words: fifty-nine
million eight hundred eighty-six thousand Czech Crowns).
The nonmonetary contribution shall be effected by forgiving certain debts (in
the total rounded amount of 59,886,000 CZK) owed by POWER International, spol.
s.r.o. to BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. On 24 June 1996, POWER
International, spol. s.r.o. concluded with BEHEER-EN BELEGGINGSMAATSCHAPPIJ
BRUWABEL B.V. the Debt for Equity Agreement obliging BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations regarding the
nonmonetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 59,986,972 CZK to the amount of 59,986,000 CZK. The nonmonetary
contribution was appraised by an expert opinion from the court-sworn expert Ing.
Milan Vodicka on 18 June 1996.
The sum of the above mentioned capital contributions creates a one hundred
percent participation interest of the participant of the company.
Other resolutions have not been adopted.
Three copies of this document were handed over to JUDr. Andrea Bednarikova.
<PAGE>
The Notarial Deed has been drawn, read and fully approved and finally signed by
the party. Then I, the state notary, signed this document and provided it with
an official stamp.
Andrea Bednarikova, v.r.,
representing BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
L.S.
Iva Filipova v.r.
N 118 /94 NZ 104/94
COUNTERPART
NOTARIAL DEED
drawn on the fourth of May one thousand nine hundred ninety-four (04/05/1994) by
myself, Helena Capkova, Notary Public for Prague, with the seat at Prague 1,
Narodni 32.
In the presence of
Robert Chelberg, born on 09/03/1995, a citizen of the U.S.A., residing at,
according to his residence permit for foreigners, in Prague 4, Salounova 1933.
whose identity was proved to me in the manner prescribed by law and who is,
pursuant to the power of attorney which forms Exhibit No 1, the representative
of the BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. with its seat at Utrecht,
Croeselaan 16, the Netherlands, registered with the Chamber of Commerce and
Industry for county of Utrecht, under reference number 99154. The statutory
representative of such company shall be RABOBANK MANAGEMENT B.V. with its seat
at Utrecht, represented by the Director of the Company, Robert Van Beemen.
With regard to the fact, that Robert Chelberg can not speak Czech, he required
the assistance of an interpreter to make this action.
Pavlina Rybisarova, born on 09/01/1968, residing at Hradec Kralove 9, Mir. Hajka
477, whose identity has been proved.
Robert Chelberg has taken following action in my presence
declaration
of the establishment of the limited liability company, pursuant to which I have
drawn following
DEED OF FOUNDATION
I.
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V., established at Croeselaan 18,
3521 Utrecht P.O. Box 2790, 3500 GT Utrecht, founds the limited liability
company. business name of the company shall be POWER Development, s.r.o.
<PAGE>
II.
The registered office of the company shall be at Prague 1, Maiselova 15.
III.
The object of business shall be:
- - - procural in trade, services, industry and investments,
- - - consultancy in the commercial sphere
IV.
The Registered Capital of the company is 100.000,- CZK (one hundred thousand
Czech Crowns). The Registered Capital of the company shall be paid up in its
entirety to the account of the company established for this purpose with
Investicni a postovni banka a.s., at Prague 1, Perlova 5. The administrator of
the contribution shall be Robert Chelberg.
V.
The company shall be established for an indefinite period. The company shall be
formed upon incorporation into the Commercial Register.
VI.
The powers of the General Meeting shall be exercised by the sole participant of
the company.
VII.
The executive shall be the statutory body of the company. The first and the sole
executive of the company shall be Robert Chelberg, born on 09/03/1995, residing
at, according to his residence permit for foreigners, at Prague 4, Salounova
1933.
VIII.
The company shall establish a reserve fund to cover a possible loss of the
company in the amount of 5.000,- CZK. The reserve fund shall be supplemented on
an annual basis by 5% of the net profit attained by the company until the
reserve fund reaches a level of 10 % of the Registered Capital. The reserve fund
may be used only to cover losses of the company or to take bridging
2
<PAGE>
measures with regard to an unfavourable financial situation in the company.
IX.
The sole participant of the company may decide on the appointment of another
participant which may be represented by an individual or a legal entity. The
new participant shall explicitly state that he accedes to the company in
accordance with this Deed of Foundation.
X.
Participation in the company may also be acquired by the transfer of the
participation interest or a part of such participation interest to any
individual or legal entity.
XI.
The company may be wound up in the manner stipulated in the Czech Commercial
Code.
This Notarial Deed has been prepared by myself in the presence of the
representative of the Founder and the translator of this representative. The
Notarial Deed has been dictated, re-read and interpreted in the English
language. Then, to approve accuracy of this document, the Notarial Deed was
signed before me by the parties.
/round seal and signature/
Helena Capkova
Notary Public
in Prague
/signature of Robert T. Chelberg/
This counterpart of the notarial deed is fully identical to the original of the
Notarial Deed recorded in the Collection of Notarial Deeds of Dr. Helena
Capkova, Notary Public in Prague, with her seat at Prague 1, Narodni tr. 32. It
has been issued to Robert Chelberg. and it was executed on 04/05/1994.
Dr. Helena Capkova
Notary Public in Prague
Prague 1, Narodni tr. 32.
/round seal and signature/
Helena Capkova
Notary Public in Prague
3
<PAGE>
EXHIBIT NO I NZ 104/94
POWER OF ATTORNEY
BEHEER -EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. established at Croeselaan 18,
3521 CB Utrecht, P.O. Box 2790, 3500 GT Utrecht, represented by Rabobank
Management B.V., in the capacity of Managing Director of the Company, as a sole
Participant of the Company, hereby empowers Robert Chelberg, Director of POWER
International s.r.o. with its seat in Prague 1, Maiselova 15, to perform all
acts related to the founding of POWER Development s.r.o. with its seat at Prague
1, Maiselova 15, including the execution and signature of the Deed of Foundation
of this Company, additionally they empower Robert Chelberg to assume the
position of the Administrator of the Contribution.
(date 03 August l993)
In Utrecht, on 21 April, 1994
I hereby accept this Power of Attorney
to its full extent.
04/05/1994
/signature of Robert T Chelberg/
Rabobank Management B.V.
Managing Director
/signature illegible/
4
<PAGE>
Embassy of the Czech Republic
Haag
No 5157/94 Fee 38
This is to certify the signature of /name illegible/ as well as the official
stamp of /illegible/ In Haag, on 26/04/1994
/round stamp/
Embassy of the Czech Republic
Hereby, I CERTIFY, that this photocopy is fully identical to the submitted
original of 7 pages.
The Notary Public office of Helena Capkova
Prague 1, Narodni tr. 32
On 04/05/1994
/stamp/
Dr. Helena Capkova
Notary Public
5
NZ 103/96
N 119/96
COUNTERPART
NOTARIAL DEED
prepared on 28 June 1996 (the twenty-eighth of June nineteen hundred ninety-six)
by myself, JUDr. Iva Filipova, a Notary Public for Prague, with my seat at Praha
1, Vaclavske namesti 56.
A party known personally to me, and according to her declaration capable of
legal acts:
JUDr. Andrea Bednarikova, birth certificate number: 675514/0656, residing at
Prague 5, Ovci hajek 2161.
JUDr. Andrea Bednarikova declares that she is authorized to act on behalf of the
company BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. with its registered
office at 3521 CB Utrecht, Croeselaan 18, Holland, the founder and sole
participant of POWER Development, s.r.o. with its seat at Prague 1, Maiselova
15, ICO: 6146708 1, registered at the Commercial Register at the Regional
Commercial Court of Prague, Section C, File No. 29455.
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. has authorized the executive of
POWER Development, s.r.o., Vladimir Prerad, residing at Prague 5, Na Srpecku 6,
to take all legal actions which BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.,
as the sole participant of POWER Development, s.r.o., may take in accordance
with law. The Power of Attorney shall be attached to the Notarial Deed as
Exhibit no. 1.
On 27 June 1996, Vladimir Prerad granted to JUDr. Andrea Bednarikova a Power of
Attorney entitling her to implement the acts detailed below. This Power of
Attorney shall be attached to the Notarial Deed as Exhibit no. 2.
It was stated that the extraordinary General Meeting of the company POWER
Development, s.r.o., which was convened and attended by a representative of the
sole participant - BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. on 24 June
1996, resolved that the company's registered capital would be increased from the
original amount of 100,000 CZK (in words: one hundred thousand Czech Crowns) to
20,968,508 CZK (in words: twenty million nine hundred sixty-eight thousand five
hundred eight Czech Crowns). The company's registered capital was increased by a
nonmonetary contribution of 20,868,508 (in words: twenty million eight hundred
sixty-eight thousand five hundred eight Czech Crowns). The nonmonetary
contribution shall be effected by forgiving certain debts (totaling 20,868,508
CZK) owed by POWER Development, s.r.o. to BEHEER-EN BELEGGINGSMAATSCHAPPIJ
BRUWABEL B.V.
<PAGE>
On 24 June 1996, POWER Development, s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nonmonetary contribution to the Registered Capital. The
nonmonetary contribution was appraised by an expert opinion from the court-sworn
expert Ing. Milan Vodicka on 22 June 1996.
JUDr. Andrea Bednarikova, representing BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL
B.V. and with respect to the above mentioned means of increasing the registered
capital of POWER Development, s.r. o. and to the Power of Attorney vested to her
on 27 June 1996, asked me to draw this
Amendment to the Deed of Foundation of the limited liability company
POWER Development
The following is the amended version of the "Forth" article of the Deed of
Foundation of POWER Development, s.r.o. of 4 May 1994:
The company's registered capital amounting to 20,968,508 CZK (in words: twenty
million nine hundred sixty-eight thousand five hundred eight Czech Crowns)
includes the monetary contribution of 100,000 CZK (in words: one hundred
thousand Czech Crowns) and the nonmonetary contribution of 20,868,508 CZK (in
words: twenty million eight hundred sixty-eight thousand five hundred eight
Czech Crowns)
The monetary contribution was fully paid up by the date of the company's
application to be incorporated in the Commercial Register.
The nonmonetary contribution shall effect the forgiveness of certain debts
(totaling 20,868,508 CZK) owed by POWER Development, s.r.o. to BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. On 24 June 1996, POWER Development, s.r.o.
concluded with BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for
Equity Agreement obliging BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take
over all obligations regarding the nonmonetary contribution to the registered
capital. The nonmonetary contribution was appraised by an expert opinion from
the court-sworn expert Ing. Milan Vodicka on 22 June 1996.
The sum of the above mentioned capital contributions creates a one hundred
percent participation interest of the participant of the company.
Three copies of this document were handed over to JUDr. Andrea Bednarikova.
<PAGE>
The Notarial Deed has been drawn, read and fully approved and finally signed by
the party. Then I, the state notary, signed this document and provided it with
an official stamp.
Andrea Bednarikova, v.r.,
representing BEHEER-EN BELEGGINGSMATSCHAPPIJ BRUWABEL B.V.
L.S.
Iva Filipova v.r.
NZ 232/96
N 266/96
COUNTERPART
NOTARIAL DEED
prepared on 27 November 1996 (the twenty-seventh of June nineteen hundred
ninety-six) by myself, JUDr. Iva Filipova, a Notary Public for Prague, with my
seat at Praha 1, Vaclavske namesti 56.
A party known personally to me, and according to her declaration capable of
legal acts:
JUDr. Andrea Bednarikova, birth certificate number: 675514/0656, residing at
Prague 5, Ovci hajek 2161.
JUDr. Andrea Bednarikova declares that she is authorized to act on behalf of the
company BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. with its registered
office at 1017 Amsterdam, Leidseplein 29, Holland (its former seat was at 3521
CB Utrecht, Croeselaan 18, Holland), the founder and sole participant of POWER
Development, s.r.o. with its seat at Prague 1, Maiselova 15, ICO: 6146708 1,
registered at the Commercial Register at the Regional Commercial Court of
Prague, Section C, File No. 29455.
The Power of Attorney, which was granted to JUDr. Andrea Bednarikova by the
director of this company, Intra Beheer B.V., with its seat at 1017 PS Amsterdam,
Leidseplein 29, Holland, represented by its directors - G. Loss and F. De
Hosson, on 13 November 1996, shall be enclosed to the Notarial Deed.
JUDr. Andrea Bednarikova asked me to certify
The Minutes of the General Meeting of POWER Development, s.r.o.
Pursuant to sec. 132 of the Commercial Code, the powers of the General Meeting
shall be carried out by the sole participant and founder - BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V., with its seat at 1017 PS Amsterdam,
Leidseplein 29, Holland (its former seat was at 3521 CB Ultrech, Croeselaan 18,
Holland) represented by JUDr. Andrea Bednarikova vested by a power of attorney
on 13 November 1996.
JUDr. Andrea Bednariikova stated that the sole participant did not insist on
observing the period prescribed by law for notifying the date of the general
meeting.
Due to the fact that the general meeting is attended only by the sole
participant (or that the powers of the general meeting are carried out only by
the sole participant), the bodies of the general meeting shall not be elected.
<PAGE>
The following agenda for the general meeting has been designated:
- - - the increase of the company's registered capital
- - - amendments to the Deed of Foundation
The following has been stated:
The registered capital of POWER Development, s.r.o. in the amount of 100,000 CZK
has been fully paid up.
On 24 June 1996, the extraordinary General Meeting of the company POWER
Development, s.r.o., which was convened and attended by a representative of the
sole participant - BEHEEREN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V., resolved that
the company's registered capital would be increased from the original amount of
100,000 CZK (in words: one hundred thousand Czech Crowns) to 20,968,508 CZK (in
words: twenty million nine hundred sixty-eight thousand five hundred eight Czech
Crowns). The company's registered capital was increased by a nonmonetary
contribution of 20,868,508 CZK (in words: twenty million eight hundred
sixty-eight thousand five hundred eight Czech Crowns). The nonmonetary
contribution shall effect the forgiveness of certain debts (totally 20,868,508
CZK) owed by POWER Development, s.r.o. to BEHEER-EN BELEGGINGSMAATSCHAPPIJ
BRUWABEL B.V.
On 24 June 1996, POWER Development, s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nonmonetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 20,968,508 CZK to the amount of 20,968,000 CZK The nonmonetary
contribution was appraised by an expert opinion from the court-sworn expert
Ing. Milan Vodicka on 22 June 1996.
Afterwards, the general meeting adopted the following resolution:
1) It has been resolved that the company's registered capital will be
increased from the original amount of 100,000 CZK (in words: one hundred
thousand Czech Crowns) to 20,968,000 CZK (in words: twenty million nine hundred
sixty-eight thousand Czech Crowns).
It has been resolved that the increase of the registered capital will be carried
out upon a nonmonetary contribution of 20,868,000 CZK (in words: twenty million
eight hundred sixtyeight thousand Czech Crowns) so that certain debts owed by
POWER Development, s.r.o. to BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. will
be forgiven by the aforementioned company. Pursuant to sec. 109 (2) of the
Commercial Code, the debts have been rounded down to the amount of 20,868,000
CZK.
<PAGE>
On 24 June 1996, POWER Development, s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nonmonetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 20,968,508 CZK to the amount of 20,968,000 CZK. The non-monetary
contribution was appraised by an expert opinion from the court-sworn expert Ing.
Milan Vodicka on 22 June 1996.
2) In accordance with the aforementioned means of effecting the increase of the
registered capital of POWER International, s.r.o., the following amended version
of the "Fourth" article of the Deed of Foundation of POWER Development, s.r.o.
of 4 May 1994 has been adopted:
The company's registered capital in the amount of 20,968,000 CZK (in words:
twenty million nine hundred sixty-eight thousand Czech Crowns) includes a
monetary contribution of 100,000 CZK (in words: one hundred thousand Czech
Crowns) and a nonmonetary contribution of 20,868,000 (in words: twenty million
eight hundred sixty-eight thousand Czech Crowns).
The nonmonetary contribution shall be effected by forgiving certain debts (in
the total rounded amount of 20,868,000 CZK) owed by POWER Development, s.r.o. to
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
On 24 June 1996, POWER Development, s.r.o. concluded with BEHEER-EN
BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. the Debt for Equity Agreement obliging
BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V. to take over all obligations
regarding the nonmonetary contribution to the Registered Capital.
On 22 November 1996, the amendment to the aforementioned agreement, which
concerned a change of the amount stated in the agreement of 24 June 1996 from
the amount of 20,968,508 CZK to the amount of 20,968,000 CZK. The nonmonetary
contribution was appraised by an expert opinion from the court-sworn expert Ing.
Milan Vodicka on 22 June 1996.
The sum of the above mentioned capital contributions creates a one hundred
percent participation interest of the participant of the company.
Other resolutions have not been adopted.
Three copies of this document were handed over to JUDr. Andrea Bednarikova.
<PAGE>
The Notarial Deed has been drawn, read and fully approved and finally signed by
the party. Then I, the state notary, signed this document and provided it with
an official stamp.
Andrea Bednarikova, v.r.,
representing BEHEER-EN BELEGGINGSMAATSCHAPPIJ BRUWABEL B.V.
L.S.
Iva Filipova v.r.
[Unofficial Translation of White & Case]
Statutes
of
Teplarna Kromeriz, a.s.
June 1996
<PAGE>
I. BASIC PROVISIONS
The joint-stock company Teplarna Kromeriz, a.s. (the "Company") was founded by a
single act [without stock subscription and the constitutive General Meeting] by
POWER Development, s.r.o. (the "Founder") as the sole founder, based on a
Founder's Deed containing a decision of the Founder pursuant to Section 172 (2)
and (3) and Section 171 (1) of the Commercial Code, Act. No. 513/1991 Coll.,
dated June 20, 1996, in the form of a notarial deed.
Article 1
Business Name and Registered Office of the Company
--------------------------------------------------
1. The business name of the Company shall be:
Teplarna Kromeriz, a.s.
2. The registered office shall be in:
Kromeriz, Na sadkach 3572.
Article 2
Duration of the Company
-----------------------
The Company was founded for an indefinite period of time.
Article 3
Purpose of the Company
----------------------
The purpose of the Company shall be:
1. Business of buying and selling - purchase of goods and their sale;
2. Mediating services;
3. Marketing;
4. Production and distribution of thermal energy;
5. Production and distribution of electrical energy.
-2-
<PAGE>
II. REGISTERED CAPITAL, SHARES, SHAREHOLDERS
Article 4
Registered Capital and Shares of the Company
--------------------------------------------
1. The registered capital of the Company shall be Kc 1,000,000 (to wit:
one million Czech crowns).
2. The Company's registered capital as defined in Article 4(l) shall be
represented by 1,000 registered shares with a nominal value of Kc 1,000
each. The Company's shares shall be issued in physical form.
3. Based on a resolution of the General Meeting, the Company may increase
or decrease its registered capital in accordance with binding laws and
regulations and the provisions of these Articles of Association.
4. The prior written consent of the General Meeting shall be required for
the transfer of the registered share to be valid.
Article 5
Shareholders of the Company
---------------------------
1. The rights and obligations of the Company shall be such as determined
by laws and regulations and by these Articles of Association. Any
national or foreign legal entity or natural person may be a shareholder
of the Company.
2. A shareholder shall have the right to obtain a share of the Company's
profit (dividend) allocated by the General Meeting for distribution,
such share to be determined on a pro rata basis as of the day on which
the dividend payment was decided upon. A shareholder shall not be
obligated to refund to the Company any dividend accepted in good faith.
3. A shareholder shall not be entitled to demand the return of its capital
contribution for the duration of the existence of the Company, or in
the event of the Company's winding-up. Upon the Company's winding-up
and liquidation, a shareholder shall have the right to receive a share
of the remaining assets. Such share shall be determined on the same
basis as the shareholder's share of profit (dividend).
4. Any share shall have attached to it the right of the shareholder to
participate in the management of the Company. The shareholder shall
exercise such right primarily at the General Meeting while complying
with the organizational measures for the transaction of business at the
General Meeting. Any shareholder may ask for explanations, make motions
and vote at the General Meeting.
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Article 6
Employee Shares
---------------
1. The Company may issue employee shares. The General Meeting shall decide
on the issuance and a detailed procedure for the acquisition, transfer
and return of employee shares. In the event that the General Meeting
elects to issue any employee shares, the General Meeting shall decide
upon an increase in the registered capital of the Company by an amount
corresponding to the total nominal value of the employee shares to be
issued.
III. CORPORATE GOVERNANCE
Article 7
Bodies of the Company
---------------------
The Company shall have the following bodies:
A. General Meeting;
B. Board of Directors; and
C. Supervisory Board.
A. GENERAL MEETING
Article 8
General Meeting and Its Capacity
--------------------------------
1. The General Meeting, which shall consist of all the attending
shareholders, shall be the supreme body of the Company.
2. Any decision of the General Meeting shall have the form of a resolution
which shall be binding on the Company and its bodies.
Article 9
Authority of the General Meeting
--------------------------------
The General Meeting shall have the exclusive authority to act and decide on the
following matters:
(a) any amendments to the Articles of Association in force, or the adoption
of new Articles of Association;
(b) any increase in the registered capital or the issuance of the
Company's bonds pursuant to Section 160 (1) of the Commercial Code;
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(c) any decrease in the registered capital;
(d) the winding up of the Company and the appointment of the liquidator,
the transformation of the Company into another corporate form or
cooperative, or any merger, consolidation or division of the Company;
(e) any change in the rights that attach to individual classes of shares;
(f) the election and removal of Directors;
(g) the election and removal of members of the Supervisory Board, with the
exception of those elected pursuant to Section 200 of the Commercial
Code;
(h) the approval of financial statements, the distribution of profits and
the determination of the amount and method of payment of directors'
royalties and dividends;
(i) conversion of physical-form shares into book-entered shares and vice
versa;
(j) the method of covering Company's losses incurred in the previous
accounting period as well as any subsequent approval of the use of the
reserve fund;
(k) any increase in the reserve fund above the level fixed by the Articles
of Association;
(1) the resolution of any dispute arising between the Company's bodies;
(m) the approval of the annual report of the Board of Directors on the
business of the Company and the condition of its assets;
(n) the sale of internal organizational units - branch establishments;
(o) the settlement of assets remaining after the Company's liquidation;
(p) the issuance of and a detailed procedure for the acquisition, transfer
and return of employee shares and the related amendment to the Articles
of Association;
(q) a change in the structure of the Company's assets provided that the
book value of the assets involved exceeds 10% of the registered capital
of the Company;
(r) the lease of the Company's property provided that the book value of the
property to be leased exceeds 10% of the registered capital of the
Company;
(s) the creation and principles of use of other funds established pursuant
to Article 34 (5) of these Articles of Association; and
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(t) any other issues reserved for the General Meeting by generally
binding laws and regulations or by these Articles of Association.
Article 10
Convening the General Meeting
-----------------------------
1. The General Meeting shall be convened by the Board of Directors at
least once a year no later than eight months after the end of the
accounting period or wherever the Board of Directors deems it necessary
in the interests of the Company.
2. The General Meeting shall be convened by notice sent to the
shareholders by the Board of Directors in such manner as set forth in
Article 37 hereof and mailed no less than 30 days prior to the General
Meeting.
Notice of the General Meeting shall contain:
(a) the business name and the registered office of the Company;
(b) the place, date and hour of the General Meeting;
(c) an indication whether a regular or an extraordinary General
Meeting is to be held;
(d) agenda of the General Meeting;
(e) the terms and conditions of the Articles of Association for
exercising the voting right;
(f) such other particulars as stipulated by the Articles of
Association or a resolution of the General Meeting or by
generally binding laws and regulations.
3. An extraordinary General Meeting shall be convened by the Board of
Directors:
(a) if it discovers that the Company has lost one-third of its
registered capital, or has been insolvent for more than three
months;
(b) if so requested by shareholders who own shares the nominal
value of which exceeds at least 10% of the registered capital
of the Company and such shareholders propose specific business
to be transacted at such General Meeting. The Board of
Directors shall authorized to verify the identity of such
shareholders and the quantity of shares held thereby. In such
case, the Board of Directors shall convene the extraordinary
General Meeting so that it is held no later than 30 days from
receipt of the petition for the convening. If the Board of
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Directors fails to fulfil this duty, the extraordinary General
Meeting shall be convened by a court upon entry submitted by
the shareholders. Such shareholders shall have the right to
recover the expenses thus incurred.
(c) if so required by other serious interests of the Company;
(d) if so requested by the Supervisory Board.
4. The Board of Directors (or the Supervisory Board) shall be obligated to
include in the agenda of the General Meeting any issue requested by
holders of shares the nominal value of which exceeds 10% of the
Company's registered capital provided that the request of such
shareholders is delivered to the registered office of the Company so
that the business concerned can be included in the notice of the
General Meeting.
5. A General Meeting shall also be convened by the Supervisory Board if so
compelled by the interests of the Company.
Article 11
Voting Right
1. Each shareholder shall have the rights to attend the General Meeting.
2. Any shareholder shall exercise its right at the General Meeting:
(a) directly, either in person or, in the case of a legal entity,
through its statutory body authorized to act on its behalf;
(b) through a proxyholder acting upon an officially authenticated
voting proxy indicating the scope of the proxyholder's
authority. The written voting proxy shall be deposited at the
place and time of the entry of the proxyholder in the
attendance list.
3. The number of votes a shareholder has is determined by the nominal
value of its shares. Each share of a nominal value of Kc 1,000 shall
represent one vote.
4. Each shareholder in attendance at the General Meeting shall be entered
into an attendance list to be provided for by the Board of Directors.
The attendance list shall contain the business name and the registered
office of the legal entity or the name, surname and residence of the
natural person who is a shareholder or its agent acting upon a voting
proxy, the nominal value of the shares owned by each shareholder and
the corresponding number of votes of such shareholder. The attendance
list shall have attached to it the voting proxies and its accuracy
shall be certified by signatures of the Chairman of the General Meeting
and the Minutes Secretary.
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<PAGE>
5. Directors and members of the Supervisory Board shall attend the General
Meeting. The auditor shall be authorized to attend the relevant part of
the General Meeting in order to familiarize the shareholders approving
the financial statements and the annual report of the Company with his
statement.
6. The voting shall be by ballot unless the General Meeting resolves
otherwise. The shareholders shall first vote on a motion made by the
Board of Directors and if such motion is denied, on further motions
concerning the item under discussion in the order of submission. Once a
motion has been carried, no vote shall be taken on any further motions
concerning the given item of the agenda.
Article 12
Conduct of the General Meeting
------------------------------
1. The General Meeting shall be opened by the Chairman or Vice-Chairman of
the Board of Directors or by a person delegated by the Board of the
Directors. The task of any such person is to ensure the election of the
Chairman of the General Meeting, the Verifiers (persons authorize to
verify the minutes), the Tellers (persons authorized to count votes)
and the Minutes Secretary.
2. If the Chairman of the General Meeting is not able, for serious
reasons, to preside as Chairman at the General Meeting, the Chairman or
Vice-Chairman of the Board of Directors shall take the chair until such
time as a new Chairman of the General Meeting has been elected.
Article 13
Requirements for a Valid Resolution
-----------------------------------
1. The General Meeting shall constitute a quorum if attended, in person or
by proxy, by shareholders who own shares the aggregate nominal value of
which represents more than half of the registered capital of the
Company.
2. If the quorum is not present when one hour has elapsed from the fixed
opening of the General Meeting, the Board of Directors shall call a
substitute General Meeting to be held within three weeks of the
originally convened General Meeting. The substitute General Meeting
shall have the same agenda and shall constitute a quorum irrespective
of the number of attending shareholders and the nominal value of their
shares. This stipulation must be indicated in the notice of the
substitute General Meeting.
3. Any business not included in the announced agenda may only be
transacted at the General Meeting if all of the attending shareholders
or their proxyholders unanimously agree to transact such business.
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<PAGE>
4. Any decision taken by the General Meeting shall require the affirmative
vote of a majority of the attending shareholders or their proxyholders,
unless a generally binding legal regulation or these Articles of
Association require a different majority.
5. The affirmative vote of a two-thirds majority of the attending
shareholders shall be required for any decision regarding:
(a) any amendment to the Articles of Association, or the adoption
of new Articles of Association;
(b) any increase or reduction of the registered capital;
(c) the winding-up of the Company.
Any decision under Subsection (b) above shall require such majority for
each class of shares.
A notarial deed shall be required in order for any decision under
Subsections (a) to (c) to be valid.
6. A decision of the General Meeting regarding any change in the rights
attaching to any class of shares shall require the affirmative vote of
a two-thirds majority of all of the holders of such shares.
Article 14
Minutes of the General Meeting
------------------------------
1. The Board of Directors shall cause minutes of the proceedings of each
General Meeting to be made within 30 days of the closing of the General
Meeting. The minutes of the General Meeting shall indicate:
(a) the business name and the registered office of the Company;
(b) the place and time of holding the General Meeting;
(c) the names of the Chairman of the General Meeting, the Minutes
Secretary, the Minutes Verifiers and the Tellers;
(d) description of the transaction of each item of business on the
agenda of the General Meeting;
(e) resolutions of the General Meeting and a record of votes;
(f) the content of a dissent filed by a shareholder, a Director or
a member of the Supervisory Board relating to a resolution of
the General Meeting if the dissenter so requests.
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<PAGE>
2. Motions and statements presented for discussion at the general
Meeting shall be attached to the minutes of the General Meeting.
3. The minutes shall be signed by the Minutes Secretary, the Chairman
of the General Meeting and the Minutes Verifiers.
4. Minutes of General Meetings along with notices given and attendance
lists shall be kept in the archives of the Company for the entire
period of the Company's existence.
5. Any shareholder may ask the Board of Directors for a copy of all or any
part of any minutes.
B. BOARD OF DIRECTORS
Article 15
Status and Authority of the Board of Directors
----------------------------------------------
1. The Board of Directors is a statutory body which shall manage the
Company and act on its behalf.
2. The Board of Directors shall decide on any matters of the Company other
than those reserved for the General Meeting or the Supervisory Board by
laws and regulations or the Company's Articles of Association.
3. The Board of Directors shall have, without limitation, the authority,
in such manner as set forth in these Articles of Association:
(a) to manage business activities and ensure the operation of the
Company;
(b) to exercise employer's rights;
(c) to convene General Meetings;
(d) to cause the preparation and the submission to the General
Meeting of any business required to be transacted at the
General Meeting;
(e) to implement the resolutions of the General Meeting;
(f) to provide for the preparation of simplified quarterly balance
sheets;
(g) to cause to be kept proper accountancy and books of account
and other documents of the Company pursuant to the applicable
law and regulations;
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<PAGE>
(h) to decide on the execution of agreement on the foundation of
corporations and cooperatives and agreements on the foundation
of special-purpose associations, and on capital contributions
to corporations and cooperatives;
(i) to draw up the annual investment and operation budgets;
(j) to assume liability on borrowings and loans;
(k) to determine the business policy;
(1) to lay down the principles of collective agreement;
(m) to draw on the reserve fund, if necessary;
(n) to lease immovable assets of the Company for an indefinite
period of time on a prior notice of more than three months or
for a definite period of time exceeding 12 months provided
that the book value of such assets is not in excess of 10% of
the registered capital of the Company;
(o) to set the remuneration of members of the Supervisory Board;
(p) to decide on any changes in the organization of the Company,
including, but not limited to, the establishment and
winding-up of branch enterprises;
(q) to decide on the establishment of an operational committee on
which to delegate its powers, and to appoint and remove
members of such committee and fix their remuneration;
(r) to appoint and remove the Chief Executive Officer and managers
of the Company pursuant to the provision of Section 27 of the
Labor Code;
(s) to grant procuration.
4. Any Director assuming any liability on behalf of the Company must be
authorized in writing to do so by the Board of Directors. Directors
shall be registered in the Commercial Register. Action of and signing
by the Board of Directors on behalf of the Company shall be governed by
Articles 29 and 30 hereof.
5. In its activities, the Board of Directors shall follow the principles
and instructions approved by the General Meeting.
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Article 16
Composition, Appointment and Term of Office
-------------------------------------------
of the Board of Directors
-------------------------
1. The Board of Directors shall be composed of 3 Directors.
2. The term of office of Directors shall be three years, but shall not
expire until a new Board of Directors has been elected. Each Director
may be re-elected.
3. Any director may resign from his office by written resignation
delivered to the Board of Directors. In such event, the term of office
of the resigning director shall terminate as of the day on which the
General Meeting acted upon his resignation.
4. The Directors shall elect one of their number to be Chairman.
Article 17
Calling Meetings of the Board of Directors
------------------------------------------
1. The Board of Directors shall meet at least once a month.
2. The Chairman or in his absence, the Vice-Chairman, shall call meetings
of the Board of Directors by written notice indicating the place, date,
hour, and agenda of the meeting. The notice must be delivered to the
Directors not less than three days prior to the meeting, unless the
date and other particulars of such meeting were discussed at the
previous meeting of the Board of Directors. If agreed by all Directors,
a meeting may also be called by wire or by facsimile. Even in such
case, however, the notice must contain all of the aforementioned
particulars, and the Directors must confirm its receipt.
3. The Chairman shall be obligated to call a meeting at any time if so
requested by any Director or by the Supervisory Board.
4. Meetings of the Board of Directors shall be held at the registered
office of the Company, unless otherwise determined by the Board of
Directors.
5. No person may substitute on behalf of a director.
6. The Board of Directors may, in its own discretion, invite members of
other bodies of the Company or the Company's employees or shareholders
or any other persons to attend its meeting.
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<PAGE>
Article 18
Conduct of Meetings of the Board of Directors
---------------------------------------------
1. The Chairman of the Board of Directors shall chair meetings of the
Board of Directors. In his absence, the meeting shall be chaired by the
Vice-Chairman.
2. Minutes signed by the Chairman of the Board of Directors and a Minutes
Secretary designated by the Board of Directors shall be made of the
business transacted and action taken at the Board of Directors'
meetings. Each Director shall have the right to have his differing
views on the business transacted entered in the minutes. Minutes of
Board of Directors' meetings shall be kept in the archives of the
Company for the entire period of the Company's existence. A copy of the
minutes shall be sent to the Supervisory Board for information.
3. The Company shall bear the expenses incurred in connection with
meetings and other activities of the Board of Directors.
Article 19
Action by the Board of Directors
--------------------------------
1. The Board of Directors shall constitute a quorum if at least two
Directors are present at the meeting.
2. The affirmative vote of a majority of the attending Directors shall be
required to take action in respect of any business transacted at a
meeting. In the event of tie votes, the Chairman shall have the
deciding vote.
3. When the Chairman of the Board of Directors is elected or removed, the
person concerned shall abstain from voting.
Article 20
Action by Board of Directors Without a Meeting
----------------------------------------------
1. The Board of Directors may take action outside of a meeting, if consent
thereto is given by all the Directors. In such case, however, each
Director must make a written statement with respect to the proposed
action, and the action must be approved by a unanimous vote.
2. Any action taken outside of a meeting must be entered in the minutes of
the next succeeding meeting of the Board of Directors.
3. The Chairman of the Board of Directors shall provide for any and all
organizational measures connected with taking action without a meeting.
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Article 21
Duties of Directors
-------------------
1. Each Director shall perform his duties as a director with due care, and
shall maintain the confidentiality of any information and facts whose
disclosure to third parties might cause damage to the Company.
2. Each Director shall also be obligated to comply with restrictions
concerning non-competition as stipulated by the applicable provisions
of generally binding laws and regulations.
3. Any breach of the duties referred to in Sections 1 and 2 above shall
have such consequences as provided for by generally binding laws and
regulations.
4. Each Director shall be liable to the Company for any damage due to a
breach in the performance of his duties on the terms and conditions and
to the extent determined by generally binding laws and regulations. In
the event that more Directors should cause such damage, they shall be
liable jointly and severally.
C. SUPERVISORY BOARD
Article 22
Status and Authority of the Supervisory Board
---------------------------------------------
1. The Supervisory Board shall supervise the performance of duties by the
Board of Directors and the conduct of the Company's business
activities.
2. Members of the Supervisory Board shall have access to any documents and
records relating to the activities of the Company and shall inspect
whether accounting records are properly kept in accordance with the
fact and whether the Company's business is conducted in compliance with
laws and regulations, these Articles of Association and instructions of
the General Meeting.
3. The Supervisory Board shall review the financial statements and the
proposal for the distribution of profits, and submit to the General
Meeting a report on the results of such review. The Supervisory Board
shall also review the simplified quarterly balance of the Company
pursuant to Section 8 of Article 35 hereof.
4. The Supervisory Board shall approve the nomination for the auditor to
review financial statements pursuant to Section 2 of Article 35 hereof.
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5. Members of the Supervisory Board shall attend the General Meeting and
shall be obligated to inform the General Meeting of the results of
their supervisory activities.
6. The Supervisory Board shall convene a General Meeting if so required by
the interests of the Company and make proposals to the General Meeting
of actions to be taken.
7. The Supervisory Board shall fix the remuneration of Directors.
Article 23
Composition of the Supervisory Board
------------------------------------
1. The Supervisory Board shall consist of 3 members. No member of the
Supervisory Board may concurrently serve as a Director, the Chief
Executive Officer, the Company's Proxy or any person entered in the
Commercial Register as a person authorized to act on behalf of the
Company.
2. Two-thirds of the members of the Supervisory Board shall be elected and
removed by the General Meeting and one-third by employees of the
Company. So long as the number of employees is below 50, all members of
the Supervisory Board shall be elected by the General Meeting.
3. The term of office of the Supervisory Board shall be three years, but
shall not terminate until a new Supervisory Board has been elected. Any
member of the Supervisory Board may be re-elected.
4. Any member of the Supervisory Board may resign from his office by
written resignation delivered to the Supervisory Board. In such event,
the term of office of the resigning member shall terminate as of the
day on which the General Meeting acted or should have acted upon the
member's resignation. If the number of members should decrease below
one-half, the Supervisory Board shall be obligated to call, without
unnecessary delay, an extraordinary General Meeting which shall discuss
the resignation and elect new members of the Supervisory Board.
5. The members of the Supervisory Board shall elect one of their number to
be Chairman of the Supervisory Board.
6. The Supervisory Board shall appoint one of its members to represent the
Company in proceedings before court and other authorities conducted
against Directors.
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Article 24
Callling Supervisory Board's Meetings
-------------------------------------
1. The Supervisory Board shall meet at least once every three months.
2. The Supervisory Board Chairman shall call meetings of the Supervisory
Board by written notice indicating the place, date, hour, and agenda of
the meeting. The notice must be delivered to members of the Supervisory
Board not less than fifteen days prior to the meeting. If agreed by all
the members, a meeting may also be called by wire or by facsimile. Even
in such case, however, the notice must contain all of the
aforementioned particulars, and the members must confirm its receipt.
3. Meetings of the Supervisory Board shall be held at the registered
office of the Company, unless otherwise determined by the Supervisory
Board.
4. No person may substitute on behalf of a member of the Supervisory
Board.
5. The Supervisory Board may, in its own discretion, invite members of
other bodies of the Company or the Company's employees or shareholders
to attend its meetings.
Article 25
Conduct of Meetings of the Supervisory Board
--------------------------------------------
1. The Chairman of the Supervisory Board or, in his absence, any member of
the Supervisory Board shall chair a meeting of the Supervisory Board.
2. Minutes signed by the Chairman of the Supervisory Board and a Minutes
Secretary designated by the Supervisory Board shall be made of the
business transacted and action taken at each meeting of the Supervisory
Board. Each member of the Supervisory Board shall have the right to
have his differing views on the business transacted entered in the
minutes. Minutes of meetings of the Supervisory Board shall be kept in
the archives of the Company for the entire period of the Company's
existence.
3. The Company shall bear the expenses incurred in connection with
meetings and other activities of the Board of Directors.
Article 26
Resolution of the Supervisory Board
-----------------------------------
1. The Supervisory Board shall constitute a quorum if a majority of the
members are present at the meeting.
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2. The affirmative vote of a majority of all members of the Supervisory
Board, not only those in attendance, shall be required to adopt a
resolution in respect of any business transacted at a meeting.
3. When the Chairman of the Supervisory Board is elected or removed, the
person concerned shall abstain from voting.
Article 27
Duties of Members of the Supervisory Board
------------------------------------------
1. Each member of the Supervisory Board shall perform his duties with due
care, and shall maintain the confidentiality of any information and
facts whose disclosure to third parties might cause damage to the
Company. The controlling power and authority of the members of the
Supervisory Board shall not be affected thereby.
2. Each member of the Supervisory Board shall also be obligated to comply
with restrictions concerning non-competition as stipulated by the
applicable provisions of generally binding laws and regulations.
3. Each member of the Supervisory Board shall be liable to the Company for
any damage due to a breach in the performance of his duties under the
terms and conditions and to the extent determined by generally binding
laws and regulations. In the event that more members of the Supervisory
Board should cause such damage, they shall be liable jointly and
severally.
Article 28
Rules for Setting the Remuneration and Royalties
------------------------------------------------
of Members of Board of Directors and the Supervisory Board
----------------------------------------------------------
1. Directors and members of the Supervisory Board shall receive
remuneration which may be increased by a share of profits in the form
of royalties in such amounts and on such terms and conditions as set by
the General Meeting and these Articles of Association.
2. Royalties shall be payable on condition that tax duties, allocations to
funds and installments on loans shall have been made and fulfilled
pursuant to these Articles of Association, generally binding laws and
regulations and the collective agreement.
3. Further provisions for the award of remuneration and royalties shall be
as follows:
(a) a Director or a member of the Supervisory Board who has served
on the respective board of the Company for less than one year
shall receive a pro rata allocation of the royalty awarded. No
pro rata
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allocation shall be payable to a Director or a member of the
Supervisory Board who has served on the respective board for
less than two months;
(b) no royalty shall be payable to a Director or a member of the
Supervisory Board who is an employee of the Company under a
manager's employment agreement;
(c) The Chairman of the Board of Directors shall be liable for
compliance with the terms and conditions for the determination
of remuneration and royalties under Section 1 of Article 29.
IV. ACTION AND SIGNING ON BEHALF OF THE COMPANY
Article 29
Action on Behalf of the Company
-------------------------------
1. The Board of Directors, in its capacity as statutory body entered in
the Commercial Register, shall act on behalf of the Company. The Board
of Directors shall act as follows:
(a) through the Chairman of the Board of Directors acting
independently; or
(b) through any Director authorized in writing by the Board of
Directors, acting independently and within the scope of his
authorization.
2. In addition, corporate proxies may act (do legal acts) on behalf of the
Company to the extent of procuration granted by the Board of Directors
pursuant to the provisions of Section 14 of the Commercial Code. The
grant of the procuration must be recorded in the Commercial Register.
3. Other persons who may act on behalf of the Company shall be as follows:
(a) other employees of the Company, if so provided by internal
regulations of the Company, or in legal acts incident to the
activities of such employees or if performance of legal acts
is customary in the positions held by such employees (pursuant
to the provisions of Section 5 of the Commercial Code and
Section 20 (2) of the Civil Code);
(b) agents on the basis of an authorization or a power of attorney
granted by the Board of Directors. Such authorization or power
of attorney must specify the scope of authority or powers.
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Article 30
Signatory Authority on Behalf of the Company
--------------------------------------------
1. In signing on behalf of the Company, the signature(s) of (a) all of the
Directors jointly, or (b) the Chairman of the Board of Directors
independently, or (c) any single Director who has been authorized in
writing by the Board of Directors, within the scope of his authority,
shall be attached to the written or printed Company's name or seal.
The mode of signing on behalf of the Company shall be entered in the
Commercial Register.
2. The Company's proxies shall sign on behalf of the Company by adding
notice of procuration to their signatures.
3. Other persons who may sign on behalf of the Company are as follows:
(a) other employees of the Company, if so provided by internal
regulations of the Company, or in legal acts incident to the
activities of such employees or if performance of legal acts
is customary in the positions held by such employees (pursuant
to the provisions of Section 5 of the Commercial Code and
Section 20 (2) of the Civil Code);
(b) agents on the basis of an authorization or a power of attorney
granted by the Board of Directors.
V. FINANCIAL MANAGEMENT OF THE COMPANY
Article 31
Accounting Period
-----------------
The accounting period shall be identical with the calendar year.
Article 32
Profit Distribution, Creation and Use of Company's Funds
--------------------------------------------------------
1. Any profit remaining after the Company has fulfilled its tax
liabilities pursuant to generally binding laws and regulations shall be
used to make the statutory and other allocations to the Company's
funds, to invest in development plans and for such other purposes as
approved by the General Meeting, and to pay dividends to the
shareholders and royalties to the Directors and members of the
Supervisory Board.
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2. The reserve fund of the Company shall be increased by allocation of
after-tax profit in a minimum amount of 5% of the net profit for the
previous accounting period until the reserve fund reaches a level of
20% of the registered capital. The Board of Directors shall decide on
the use of the reserve fund. The reserve fund shall be used to cover
the Company's losses, or to bridge unfavorable developments in the
Company's management only to the extent such reserve fund is
mandatorily created pursuant to the Commercial Code.
3. The General Meeting shall decide on any increase of the reserve fund
over and above the limit determined in the previous Section.
4. The Company may create other funds on the basis of a resolution of the
General Meeting. The Board of Directors shall decide on the use of such
funds according to principles set by the General Meeting.
Article 33
Financial Statements, Economic Information,
-------------------------------------------
Records and Profit Distribution
-------------------------------
1. The Company shall keep books of account and accounting records in the
prescribed manner and in compliance with generally binding laws and
regulations and prepare financial statements and submit them to the
relevant Company's bodies. The Company shall manage its business
activities in accordance with generally binding laws and regulations.
2. The Board of Directors shall be liable for the proper keeping of the
books of account. The Board of Directors shall submit financial
statements, prepared in accordance with the applicable accounting laws
and regulations, to such auditors as approved by the Supervisory Board,
along with a request for review of the results of Company's operations
for the particular year. Immediately after receiving the auditors
report regarding the review of the financial statements and the annual
management of the Company, the Board of Directors shall deliver the
financial statements along with the auditors reports and a proposal for
profit distribution to the Supervisory Board.
3. The financial statements must provide full information on the condition
of the Company's assets and finance and on the amount of profit made or
loss incurred in the previous accounting period.
4. The Supervisory Board shall review the financial statements and the
proposal for profit distribution and give the General Meeting notice of
the results of such review.
5. The Company shall cause auditors:
(a) to audit the Company's financial statements;
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(b) to audit the result of the Company's operations for the
particular year;
(c) to prepare a report on the audit of the financial statements
and the result of the Company's operations.
6. Once a year, the Company shall publish its annual report upon approval
by the General Meeting.
7. The Company shall disclose data from the audited financial statements
in such manner as stipulated by generally binding laws and regulations.
8. In addition to the financial statements, the Board of Directors shall
provide for the preparation of simplified quarterly balance sheets of
the Company for the elapsed calendar quarter. Such simplified quarterly
balance sheet shall be subject to review by the Supervisory Board.
Article 34
Increase of the Registered Capital
----------------------------------
1. The General Meeting shall decide on any increase in the registered
capital of the Company. It shall do so on such terms and conditions as
provided and in such manner as implied by generally binding laws and
regulations. The resolution of the General Meeting regarding an
increase in the registered capital shall require the affirmative vote
of a two-thirds majority of the attending shareholders. Such majority
shall be required with each class of shares. A notarial deed shall be
made of such resolution.
2. In the event that an increase in the registered capital is to be made
by subscription of new shares, the General Meeting shall determine the
manner and the terms and condition for such subscription and repayment.
A breach of the duty to pay up the subscribed shares in a timely manner
shall have such consequences as provided by generally binding laws and
regulations.
3. The existing shareholders shall have a pre-emptive right to subscribe
newly issued shares intended to increase the registered capital.
4. Any increase in the registered capital must be recorded in the
Commercial Register. The Company may ask for such registration when all
of the shares have been subscribed for and at least 30% of their
nominal value has been paid up.
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Article 35
Reduction of the Registered Capital
-----------------------------------
1. The registered capital of the Company may only be reduced based on a
resolution of the General Meeting approved by a two-thirds majority of
the attending shareholders. Such majority shall be required for each
class of shares. The resolution of the General Meeting shall indicate
the reason for the reduction of the registered capital, to the extent
of such reduction, the procedure by which it is to be carried out and
the deadline for the delivery of the shares to the Company. A notarial
deed shall be made of such resolution.
2. The registered capital may not be reduced below its minimum level
stipulated by generally binding laws and regulations.
3. The reduction of the registered capital shall be carried out by such
procedures as provided by generally binding laws and regulations.
VI. FINAL PROVISIONS
Article 36
Winding-Up and Dissolution of the Company
-----------------------------------------
1. The Company may be wound-up:
(a) by a resolution of the General Meeting to wind-up the Company
and to transform it into another corporate form or a
cooperative, or to merge, consolidate or divide the Company;
(b) by a resolution of the General Meeting to wind-up and
liquidate the Company;
(c) by the decision of a court regarding the winding-up of the
Company;
(d) upon a declaration of bankruptcy proceedings in respect of the
Company's assets or rejection of an application for such
declaration on the grounds of insufficient assets.
2. Any of the decisions referred to in Article 36(a) and (b) shall
require the affirmative vote of a two-thirds majority of votes cast at
the General Meeting. A notarial deed shall be prepared in respect of
any such decision.
3. The manner in which the Company shall be liquidated upon the winding-up
shall be governed by generally binding laws and regulations. The
General Meeting shall decide on the settlement of any assets remaining
upon the liquidation of the Company. Such remaining assets shall be
distributed
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among the shareholders on a pro rata basis. Shareholders representing
at least one-tenth of the registered capital of the Company may apply
to the court of competent jurisdiction for the removal of the
liquidator appointed by the General Meeting and for the appointment of
another person in his stead, while stating the grounds for such
application.
4. The Company shall be made defunct as of the day of its deletion from
the Commercial Register.
Article 37
Notice
------
1. Notice of any information stipulated by generally binding laws and
regulations, these Articles of Association and a resolution of the
General Meeting shall be sent to registered shareholders by letter of
facsimile.
2. Any writings to be received by particular persons shall be delivered to
such addresses as such persons have announced to the Company.
Article 38
Legal Relationships of the Company and Dispute Resolution
---------------------------------------------------------
1. The incorporation, legal relationships and dissolution of the Company,
as well as any legal relationships under these Articles of Association
and any labor-law and other relationships within the Company shall be
governed by Czech laws.
2. Any disputes arising between the shareholders and the Company, or
between the Company and members of its bodies, as well as any disputes
among the shareholders concerning their interests in the Company, shall
be resolved amicably by mutual agreement. Any such dispute which cannot
be resolved by agreement shall be resolved by a court of competent
jurisdiction applicable, except as otherwise indicated by the
provisions of generally binding laws and regulations, according to the
seat of the Company, unless the parties enter into an arbitration
agreement.
Article 39
Amendment to the Articles of Association
----------------------------------------
A motion for an amendment to the Articles of Association shall be submitted to
the General Meeting by:
(a) the Board of Directors; or
(b) the shareholders.
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Article 40
Record of the Company in the Commercial Register
------------------------------------------------
1. The Company shall be recorded in the Commercial Register maintained by
the Regional Commercial Court in Brno.
2. The items to be recorded in the Commercial Register shall be such as
stipulated by the generally binding legal regulation and any change in
or cessation of the recorded facts.
Article 41
Severability
------------
If any provision of these Articles of Association is found to be invalid,
ineffective or subject to dispute, whether by reason of applicable laws or any
amendment thereof, or if any provision is lacking, the validity and
effectiveness of the remaining provisions shall not be affected thereby. The
provision concerned shall be replaced either by such provision of the applicable
generally binding legal regulation as shall come closest in nature and purpose
to the purpose contemplated by the Articles of Association or, in the absence of
such provision, by an arrangement customary in business relations.
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