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EXHIBIT 10.1
(1) THE PIONEER GROUP, INC.
(2) NATIONWIDE GLOBAL HOLDINGS, INC.
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SHAREHOLDERS' AGREEMENT
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TABLE OF CONTENTS
1. Definitions and interpretation......................................................................1
2. Object of the Society...............................................................................2
3. Members of the Supervisory Board....................................................................3
4. Conduct of the Society's affairs....................................................................4
5. Matters requiring consent of the Shareholders.......................................................5
6. Matters requiring consent of the Supervisory Board..................................................5
7. Representations, Warranties and undertakings........................................................8
8. Capital and Further Finance........................................................................10
9. Guarantees, etc. given by the Shareholders.........................................................11
10. Exercise of rights and powers.....................................................................11
11. Competition Restrictions and Regulatory Action....................................................11
12. Dividend and distribution policy..................................................................12
13. Share transfers : pre-emption provisions..........................................................12
14. Procedure in the event of Deadlock................................................................14
15. Default Event Option..............................................................................15
16. Share Transfer Mechanics..........................................................................17
17. Assignment........................................................................................18
18. Protection and use of name........................................................................18
19. This Agreement not to constitute a partnership....................................................20
20. Costs.............................................................................................20
21. Confidential Information..........................................................................20
22. Duration..........................................................................................21
23. Announcements.....................................................................................21
24. Waiver, forbearance and variation.................................................................22
25. Governing Law, Language and Jurisdiction..........................................................22
26. Severability......................................................................................23
27. Entire agreement..................................................................................23
28. The terms of this Agreement to prevail............................................................23
29. Notices...........................................................................................24
30. Counterparts......................................................................................25
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Schedule 1 Words and Expressions......................................................................26
Schedule 2 Details of the Society.....................................................................29
Schedule 3 Representations and Warranties.............................................................30
Schedule 4 Limitation of liability....................................................................40
Schedule 5 Deed of Adherence..........................................................................41
The following documents are in the agreed terms:
1. The amendments to the by-laws of the Supervisory Board referred to in CLAUSE
3.3,
2. The Initial Budget,
3. The Initial Business Plan
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THIS AGREEMENT is made with effect from 8th April 1999
BETWEEN:-
(1) THE PIONEER GROUP, INC. a company duly established under Delaware law whose
principal place of business is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("PIONEER"); and
(2) NATIONWIDE GLOBAL HOLDINGS, INC. a company duly established under Ohio law
whose principal place of business is at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("NATIONWIDE").
WHEREAS:-
(A) Pioneer Powszechne Towarzystwo Emerytalne S.A. (the "SOCIETY") was
registered by the Registration Court on 29th October 1998. The Society has
a share capital of PLN 340,000,000 divided into 340,000 shares of PLN 100
each. Further details about the Society are set out in SCHEDULE 2 (DETAILS
OF THE SOCIETY).
(B) On 8th April 1999, Pioneer, Nationwide and the Society signed a share
subscription agreement (the "SHARE SUBSCRIPTION AGREEMENT") pursuant to
which Nationwide agreed to subscribe for 145,714 shares of PLN 100 each in
the Society on the terms and conditions set out in that agreement.
(C) Pioneer and Nationwide wish to participate as shareholders in the Society
for the purposes and on the terms set out in this Agreement.
(D) The Parties to this Agreement entered into a shareholder's agreement (the
"ORIGINAL AGREEMENT") on 8th April 1999 setting out the terms on which they
would participate as shareholders in the Society. The Parties have agreed
to amend the Original Agreement and to execute this Agreement to
incorporate such amendments and to restate the terms on which they are
participating as shareholders' in the Society.
IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the words and expressions set out in SCHEDULE 1 (WORDS
AND EXPRESSIONS) have, unless the context otherwise requires, the meanings
there provided for them.
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1.2 The recitals and schedules form part of this Agreement and shall have the
same force and effect as if set out in the body of this Agreement.
1.3 Headings in this Agreement are inserted for convenience only and shall not
affect its construction or interpretation.
1.4 Where appropriate, words denoting the singular shall include the plural and
vice versa and words denoting any gender shall include the other genders.
1.5 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement, unless otherwise stated.
1.6 References to any document or agreement (including this Agreement) include
a reference to that document or agreement as varied, amended, supplemented,
substituted, novated or assigned from time to time.
2. OBJECT OF THE SOCIETY
2.1 The object of the Society shall be to carry on the business of establishing
and managing the Fund, an open pension fund established and registered in
accordance with the Pension Law.
2.2 The Business shall be conducted under the name Pioneer Powszechne
Towarzystwo Emerytalne in accordance with applicable Polish law and the
Articles and in the best interests of the Society on sound commercial
profit-making principles so as to generate the maximum achievable
maintainable profits available for distribution and otherwise in accordance
with the Business Plan, as varied by from time to time as provided herein.
2.3 In support of the Business, Nationwide will actively seek to assist and
promote the business of the Society in the manner contemplated by the then
current Business Plan through such measures as transfer of knowledge in the
areas of sales training and sales management, with the aim of developing a
professionally trained, compensated and supervised sales force which is
directed toward the goals of increased business, enhanced customer
satisfaction, enhanced customer loyalty to Pioneer funds and superior
customer retention.
2.4 In support of the Business, Pioneer will use its best efforts to assist and
promote the Business in the manner contemplated by the then current
Business Plan through such measures as the use of Pioneer's brand name,
professional money management skills, execution of appropriate advertising
and promotion, support of the product through existing and future
distribution channels, assisting in identifying and recruiting local staff
and providing local market knowledge and expertise.
2.5 The Shareholders shall supply consulting and other services to the Society
on an as needed basis. In general, ad hoc support service which requires
less than
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full-time participation of individual employees of either Shareholders will
be the responsibility of such Shareholder and will not be chargeable as a
direct expense to the Society. In the event that the Shareholders agree
that ongoing support is needed from either Shareholder, that contribution
must be authorised by the Society in an approved written agreement and is
chargeable as an expense to the Society. Reimbursement to each Shareholder
for these services will be on an equitable and consistent basis for both
Shareholders.
2.6 US$ 2,000,000 of the proceeds of the issue of the Subscription Shares will
be used for an advertising campaign to launch the Fund. The balance of the
proceeds of the Subscription Shares will be used by the Society for the
Business in accordance with the then current Business Plan and Budget,
subject to any restrictions on use of such funds arising under applicable
Polish law.
3. MEMBERS OF THE SUPERVISORY BOARD
3.1 The Society will be supervised by the Supervisory Board as provided in the
Articles and applicable Polish law. The number of members of the
Supervisory Board holding office at any time shall be 6 members, unless
otherwise agreed in writing by the Shareholders.
3.2 Pioneer shall have the right to nominate 4 persons to be members of the
Supervisory Board, one of whom shall be designated by Pioneer as the
chairman of the Supervisory Board. Nationwide shall have the right to
nominate 2 persons to be members of the Supervisory Board, one of whom
shall be designated by Nationwide as the vice - chairman of the Supervisory
Board. 2 of the persons nominated to the Supervisory Board by Pioneer and 1
of the persons nominated to the Supervisory Board by Nationwide will be
independent of Pioneer and Nationwide respectively and will otherwise meet
all the qualification (including educational) requirements of UNFE. A
person will be independent of Pioneer or Nationwide Group (as the case may
be) if they meet the independence requirements of the Pension Law. The
Shareholders will consult each other concerning the identity of their
respective nominees to the Supervisory Board. Each Shareholder hereby
undertakes to vote in support of any person nominated by the other as an
appointee to the Supervisory Board provided that such person is properly
qualified, satisfies applicable legal requirements, and his appointment is
accepted by UNFE.
3.3 The procedures in relation to the functioning of the Supervisory Board and
adopting resolutions by the Supervisory Board shall be established in the
Supervisory Board by-laws in the agreed terms and adopted by the General
Assembly.
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4. CONDUCT OF THE SOCIETY'S AFFAIRS
4.1 Each of the Shareholders agrees with the other that it shall exercise all
voting rights and other powers of control available to it in relation to
the Society so as to cause (insofar as they are able by the exercise of
such rights and powers) that at all times during the continuance of this
Agreement without the prior written consent of the other Shareholder:-
4.1.1 there is a Budget resolved upon by the Supervisory Board in
respect of the capital and revenue affairs of the Society
(including (except with respect to the Initial Budget), without
prejudice to the generality of the foregoing, all staff salaries,
bonuses and other remuneration) and that such Budget is for
periods not exceeding a year and a replacement Budget is agreed
for each Financial Year of the Society in advance and as
superseded or modified from time to time as required. The first
Budget is the Initial Budget;
4.1.2 the business of the Society shall consist exclusively of the
Business (even if Polish law permits the Society to conduct some
other business);
4.1.3 the Business shall be conducted in accordance with the Business
Plan which shall be resolved upon by the Supervisory Board and
replaced on a rolling basis from time to time and as superseded
or modified from time to time. The first Business Plan shall be
the Initial Business Plan;
4.1.4 Nationwide shall be entitled to receive from Pioneer copies of:-
(a) all reports and documents legally required to be provided to
the Shareholders in the Society; and
(b) copies of all other documents provided by the Society to
Pioneer;
4.1.5 without prejudice to the rights of the Shareholders and their
respective Groups to carry on their other businesses in a proper
and efficient manner, each Shareholder shall use all reasonable
endeavours to promote the business and affairs of the Society;
4.1.6 members of the Supervisory Board shall be appointed in accordance
with provisions of this Agreement and applicable law;
4.1.7 the Society shall comply with the provisions of its Articles; and
4.1.8 any transferee of Shares shall execute a deed of adherence in the
form set out in SCHEDULE 5 (DEED OF ADHERENCE).
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5. MATTERS REQUIRING CONSENT OF THE SHAREHOLDERS
5.1 Each of the Shareholders agrees with the other that it shall exercise all
voting rights and other powers of control available to it in relation to
the Society so as to cause (insofar as they are able by the exercise of
such rights and powers) that the Society shall not without the unanimous
consent of the Shareholders, whether in general meeting or in writing:-
5.1.1 alter the Articles;
5.1.2 redeem or purchase any Share;
5.1.3 increase the share capital of the Society or create or issue any
shares or any option or other Encumbrance over Shares;
5.1.4 amend the Management Board by-laws or the Supervisory Board
by-laws in a manner inconsistent with this Agreement;
5.1.5 cease operations or dissolve the Society
5.1.6 to the extent permitted by Polish Law, create another open
pension fund or take over the management of any pension fund
other than the Fund or transfer the management of the Fund to any
other open pension fund society.
6. MATTERS REQUIRING CONSENT OF THE SUPERVISORY BOARD
6.1 Each of the Shareholders agrees with the other that it shall exercise all
voting rights and other powers of control available to it in relation to
the Society so as to cause (insofar as they are able by the exercise of
such rights and powers) that the Society shall not without the prior
unanimous consent of the Supervisory Board (whether in writing or at a duly
convened and quorate meeting of the Supervisory Board at which both the
chairmen and the vice-chairman of the Supervisory Board are present):-
6.1.1 enter into any contract, arrangement or commitment involving
expenditure on capital account or the realisation of capital
assets if the amount or the aggregate amount of such expenditure
or realisation by the Society, would exceed US$ 100,000 (or its
equivalent) in any one year or in relation to any one project,
and for the purpose of this CLAUSE 6.1.1, the aggregate amount
payable under any agreement for hire, hire purchase or purchase
on credit sale or conditional sale terms shall be deemed to be
capital expenditure incurred in the year in which such agreement
entered into;
6.1.2 approve or replace any Budget or Business Plan or modify any
Budget or Business Plan provided that prior unanimous consent
shall not be required pursuant to this CLAUSE 6.1.2 for any
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modification to the Budget which varies the Budget by less than
10%;
6.1.3 enter into any contract or other obligation inconsistent with the
then current Budget or omit to take any action which is required
by the Budget provided that prior unanimous consent shall not be
required pursuant to this CLAUSE 6.1.3 for any contract or other
obligation which requires expenditure on the part of the Society
less than 10% higher than the then current Budget;
6.1.4 undertake any action which is inconsistent with, or omit to
undertake any action which is required by, the Business Plan;
6.1.5 pay any bonus to any member of the Management Board or the
Supervisory Board or employee of the Society in excess of amount
allocated for such bonuses in the relevant Financial Year set out
in the then current Budget or Business Plan;
6.1.6 to the extent permitted by Polish Law, give any guarantee or
indemnity or surety to secure the liabilities or obligations of
any person;
6.1.7 sell, transfer, lease, assign, or otherwise dispose of the whole
or a material part of the undertaking, property and/or assets of
the Society, or acquire any material asset or business or
contract so to do (whether by a single transaction or a series of
transactions) where the value concerned exceeds US$ 100,000 (or
its equivalent);
6.1.8 (except in the ordinary course of business) take or agree to take
any leasehold interest in or licence over any land;
6.1.9 create any mortgage, charge, pledge or other encumbrance over the
whole or any part of its undertaking, property or assets except
for the purpose of securing the indebtedness of the Society to
its bankers for sums borrowed in the ordinary and proper course
of business;
6.1.10 borrow any sum (except from the Society's bankers in the ordinary
and proper course of the Business) in excess of a maximum
aggregate sum outstanding at any time of US$ 250,000 (or its
equivalent);
6.1.11 to the extent permitted by Polish Law, make any loan or advance
or give any credit (other than normal trade credit);
6.1.12 enter into or terminate any partnership, joint venture or
profit-sharing agreement or enter into any collaboration
agreement;
6.1.13 enter into any contract or transaction which
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a) is not in the ordinary course of the business of the
Society;
b) has a duration of more than three years;
c) is not on arm's length terms;
6.1.14 enter into any contract or obligation with any shareholder or to
any entity in the Pioneer Group or the Nationwide Group or any
Associate or employee of any such person (including any renewal
thereof or any variation in the terms of any existing contract or
obligation) which involves or could involve expenditure or the
incurring of any obligation by the Society in excess of US$
150,000 (or its equivalent);
6.1.15 take any major decisions relating to the initiation or conduct
(including settlement) of material legal, arbitration,
alternative dispute resolution or similar proceedings to which it
is or would become a party (a potential liability or claim for
US$ 250,000 (or its equivalent) being regarded as material for
that purpose);
6.1.16 make a material change to the investment policy of the Fund;
6.1.17 change the depository bank of the Fund;
6.1.18 to the extent allowed by law, change the principles in relation
to the calculation of assets of the Fund and the calculation of
the rate of return on the assets of the Fund;
6.1.19 change the outside transfer agent of the Fund;
6.1.20 amend the fee rates or structure, the charging rates or structure
or commission rate or structure of the Society or the Fund;
6.1.21 change the auditors of the Society;
6.1.22 acquire, purchase or subscribe for any shares, debentures,
mortgages, or securities (or any interest therein) in any
company, trust or other body; or
6.1.23 change the fiscal year end of the Society or the Fund.
6.2 At the first meeting of the Supervisory Board following Completion, the
parties will cause (insofar as they are able by the exercise of such rights
and powers) that the Supervisory Board will give a direction to the
Management Board that the Management Board is to keep the Supervisory Board
fully informed about any legal, arbitration, alternative dispute resolution
or similar proceedings to which the Society is or becomes a party.
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7. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
7.1 Pioneer hereby makes representations and warrants to Nationwide in the
terms set out in SCHEDULE 3 (WARRANTIES) in relation to the Society and the
Fund (as appropriate). Each of the Warranties shall be construed
independently and (except as expressly otherwise provided) shall not be
limited by reference to any other Warranty or by anything in this
Agreement.
7.2 Pioneer accepts that Nationwide is entering into this Agreement upon the
basis of and in reliance upon the Warranties.
7.3 The liability of Pioneer and Nationwide in respect of any claim in relation
to the Warranties shall be limited as provided in SCHEDULE 4 (LIMITATION OF
LIABILITY).
7.4 In relation to the Society and the Fund (as appropriate) Pioneer makes
representations and warranties to Nationwide that all the Warranties were
true and accurate in all respects and not misleading as at 8th April 1999.
In addition, in relation to the Society and the Fund (as appropriate)
Pioneer makes representations and warrants to Nationwide that all the
Warranties (with the exception of the Warranties in PARAGRAPHS 1; 2.1; 3.1;
6.1; 6.2; THE FIRST SENTENCE OF PARAGRAPH 6.3; 7; 8.2; 13.1 AND 17 of
SCHEDULE 3 (WARRANTIES)) will be true and accurate in all respects and not
misleading at Completion:
7.4.1 as if they had been repeated on such day by reference to the
circumstances at the time of repetition; and
7.4.2 on the basis that a reference to the time of repetition were each
time substituted for any express or implied reference to 8th
April 1999 (but so that any period of time expressed to start at
the date of this Agreement shall continue to be deemed to start
on 8th April 1999)
and references in this Agreement to the Warranties shall include them as so
repeated.
7.5 Pioneer undertakes that:
7.5.1 it shall not, and shall cause (as far as it can) that the Society
shall not, at any time before Completion do (or permit or suffer
to subsist or be done) any act or thing which would constitute a
breach of any of the Warranties or which would make any of the
Warranties untrue or misleading at Completion;
7.5.2 upon Pioneer becoming aware before Completion of the actual or
impending occurrence or non-occurrence of any matter, event or
circumstance (including any omission to act) which:
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(a) would or might reasonably be expected to cause or constitute
a breach of any Warranty; or
(b) would or might reasonably be expected to make any of the
Warranties untrue or misleading at Completion; or
(c) would have caused or constituted a breach of any Warranty
had it been known to Pioneer before exchange of this
Agreement,
it will immediately give written notice of such event to
Nationwide with sufficient details to enable Nationwide to assess
accurately the impact of such event and (if requested by
Nationwide) use its reasonable endeavours promptly to prevent or
remedy the event.
7.6 Where any Warranty is qualified by Pioneer's knowledge it shall mean the
actual knowledge of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or
each of the members of the Management Board.
7.7 Pioneer hereby warrants to Nationwide that at Completion Pioneer and the
Society have obtained all necessary corporate and other consents and
approvals in relation to the performance of this Agreement and the Share
Subscription Agreement and the other documents to be executed at Completion
and accordingly they each have full power to enter into and perform this
Agreement and the Share Subscription Agreement and the other documents to
be entered into pursuant to this Agreement and the Share Subscription
Agreement, each of which constitutes (or will when executed) binding
obligations on Pioneer and the Society in accordance with their respective
terms.
7.8 Nationwide hereby makes representations and warrants to Pioneer as follows:
7.8.1 Nationwide has full power to enter into this Agreement and the
Share Subscription Agreement and the other documents to be
entered into pursuant to this Agreement and the Share
Subscription Agreement, each of which constitutes (or will when
executed constitute) binding obligations on Nationwide in
accordance with their respective terms.
7.8.2 Nationwide hereby warrants to Pioneer that at Completion
Nationwide has obtained all necessary corporate and other
consents and approvals in relation to the performance of this
Agreement and the Share Subscription Agreement and the other
documents to be executed at Completion and accordingly it has
full power to enter into and perform this Agreement and the Share
Subscription Agreement and the other documents to be entered into
pursuant to this Agreement and the Share Subscription Agreement,
each of
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which constitutes (or will when executed) binding obligations on
Nationwide in accordance with their respective terms.
7.8.3 No officer or employee of Nationwide has made or received any
Sensitive Payment in connection with the Business or any
permission, confirmation or registration held by the Society or
applied for pursuant to clause 2 of the Share Subscription
Agreement. For the purposes of this CLAUSE 7.8.3 the expression
"SENSITIVE PAYMENT" (whether or not illegal) shall include (i)
bribes or kickbacks paid to any person, firm or company including
central or local government officials or employees or (ii)
amounts received with an understanding that rebates or refunds
will be made in contravention of the laws of any jurisdiction
either directly or through a third party or (iii) any political
contribution which would be unlawful in Poland or (iv) payments
or commitments (whether made in the form of commissions, payments
or fees for goods received or otherwise) made with the
understanding or under circumstances that would indicate that all
or part of the payment is to be paid by the recipient to central
or local government officials or as a commercial bribe, influence
payment or kickback.
7.9 In consideration of Nationwide entering into the Share Subscription
Agreement Pioneer hereby undertakes to Nationwide that if the Society fails
to make the payment of US$ 20,000,000 to Nationwide pursuant to clause 4.6
of the Share Subscription Agreement within the time limits prescribed in
such clause, Pioneer shall cause the Society to make a payment of US$
20,000,000 to Nationwide on the written demand of Nationwide.
8. CAPITAL AND FURTHER FINANCE
8.1 The issued share capital of the Society may from time to time be increased
by such sum as shall be agreed between the Shareholders in accordance with
this CLAUSE 8 and CLAUSE 5.1.3.
8.2 It is the intention of the parties that the Society should be
self-financing and neither Shareholder shall be obliged to contribute
further funds or participate for the benefit of the Society in any
guarantee or similar undertaking. However, the Shareholders acknowledge
their intention to support the Society in accordance with the then current
Business Plan and will in good faith consider providing such additional
funds, guarantees and undertakings as may reasonably be required to ensure
the adequate funding of the Society. Unless the parties agree otherwise,
all capital increases of the Society shall be made on a pro rata basis.
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9. GUARANTEES, ETC. GIVEN BY THE SHAREHOLDERS
Neither Shareholder (nor any member of its respective Group) shall be
obliged to participate for the benefit of the Society in any guarantee,
bond, indemnity or financing arrangement with any bank or financial
institution, whether as a guarantor or in any other capacity whatsoever.
10. EXERCISE OF RIGHTS AND POWERS
Each Shareholder undertakes with the other that (so far as it is legally
able) it will exercise all voting rights and powers, direct and indirect,
available to it in relation to any person and to the Society so as to
ensure the complete and punctual fulfilment, observance and performance of
the provisions of this Agreement (and the other agreements referred to in
this Agreement) and generally that full effect is given to the principles
set out in this Agreement including (without limitation) taking all
appropriate steps to enforce this Agreement (and any such other
agreements).
11. COMPETITION RESTRICTIONS AND REGULATORY ACTION
11.1 Neither of the Shareholders shall at any time whilst it is beneficially
interested in any Shares or for a period of one year from the date on which
such Shareholder ceases to be beneficially interested in any of the Shares,
and shall cause that none of its Associates shall do (and whether alone or
jointly with others or whether as principal, agent, shareholder or
otherwise and whether for its own benefit or that of others) any of the
following without the prior written consent of the other Shareholder:-
11.1.1 directly or indirectly carry on or be engaged, concerned or
interested (except as the holder for investment of shares
amounting in aggregate to less than 3 per cent. (3%) of the share
capital quoted or dealt in on the Warsaw Stock Exchange) in any
business competing in Poland with the Business;
11.1.2 solicit or entice away or endeavour to solicit or entice away any
employee of the Society (including without limitation, a person
whose services have been seconded to the Society by the other
Shareholder or any of its Associates), but without prejudice to
the right of such Shareholder to terminate arrangements under
which any of its staff are seconded to the Society, provided that
nothing in this CLAUSE 11.1.2 shall prevent a Shareholder making
a job offer to an employee who responds to a job advertisement;
or
11.1.3 carry on a trade or business or use a business name or ▇▇▇▇ under
a title containing the name of the Society;
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provided that nothing in this clause shall preclude or restrict either
Shareholder or other members of their respective Groups from:-
(a) carrying on any activity carried on during the period of 12
months immediately preceding 8th April 1999
(b) offering any service or goods similar to those previously
supplied as part of the Business but subsequently discontinued
and not supplied by the Society at the time when such similar
service or goods are offered;
(c) using any of its existing business names or trademarks; or
(d) acquiring or holding shares amounting in aggregate between the
Shareholder and any of its subsidiaries to less than three per
cent. (3%) of the capital of a company quoted or dealt in on the
Warsaw Stock Exchange.
12. DIVIDEND AND DISTRIBUTION POLICY
12.1 The Shareholders shall cause that unless otherwise expressly agreed by each
of the Shareholders in writing or in general meeting, to the extent
permitted by Polish law, the aggregate of the full amount of the profits of
the Society available for distribution according to the audited accounts
for any Financial Year and the accumulated distributable reserves of the
Society from prior Financial Years but less accumulated losses shall be
distributed by the Society by way of dividend (subject to any obligation on
the Society imposed by Polish law to create or maintain any reserve).
13. SHARE TRANSFERS: PRE-EMPTION PROVISIONS
13.1 Except in the case of a transfer pursuant to CLAUSE 13.10, the right to
transfer a Share shall be subject to the provisions contained in this
CLAUSE 13.
13.2 Before transferring any Share, the Shareholder proposing to make the
transfer (the "TRANSFEROR") shall give notice in writing (a "TRANSFER
NOTICE") to the other Shareholders specifying the Shares (the "SALE
SHARES") which the Transferor wishes to transfer. A Transfer Notice shall
be irrevocable.
13.3 A Transfer Notice may include a condition (a "TOTAL TRANSFER CONDITION")
that if all the Sale Shares are not sold to the other Shareholders, then
none shall be so sold.
13.4 The Transfer Notice shall state, in addition to details of the Sale Shares:
13.4.1 the name or names of the person or persons (such person or
persons being hereinafter referred to as the "PROPOSING
TRANSFEREE") to
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whom the Sale Shares are proposed to be transferred and a summary
of the terms and conditions on which such sale is proposed to be
made in the event that the Sale Shares are not acquired by the
other Shareholders; and
13.4.2 the entire consideration per Share for which any such transfer or
transfers will be made (and, if any of the said consideration is
not a cash price expressed in United States Dollars, an amount
per share which is so expressed) and such consideration shall be
the "Sale Price".
13.5 The Transfer Notice shall offer the Sale Shares for sale by the Proposing
Transferor to all the other Shareholders at the Sale Price.
13.6 Any such offer as is required to be made by the Proposing Transferor
pursuant to CLAUSE 13.5. shall limit a time (not being less than 14 days or
more than 21 days) after such offer is made within which it must be
accepted or, in default will lapse. Following any such offer, if
acceptances are received in respect of an aggregate number of Shares in
excess of that offered, the number of Sale Shares shall be allocated
amongst those who have accepted the same in proportion to the number of
Shares held by each acceptor provided that no acceptor shall be obliged to
acquire more Sale Shares than the number for which he has applied and so
that the provisions of this CLAUSE 13.6. shall continue to apply mutatis
mutandis until all Shares which any such acceptor would but for this
proviso have acquired on the proportionate basis specified above have been
allocated accordingly.
13.7 If a Transfer Notice shall contain a Total Transfer Condition, then any
such offer as aforesaid shall be conditional upon such condition being
satisfied and no acceptance of an offer of Sale Shares will become
effective unless such condition is satisfied. Subject thereto, any such
offer as is required to be made by the Proposing Transferor pursuant to
this CLAUSE 13 shall be unconditional except as provided in CLAUSE 16.
13.8 If the Proposing Transferor shall, pursuant to the foregoing provisions of
this CLAUSE 13, find other Shareholders to purchase some or (if CLAUSE
13.7. shall apply) all the Sale Shares, it shall as soon as practicable
after so doing give notice in writing thereof to the accepting
Shareholders. Every such notice shall state the name and address of each of
the accepting Shareholders and the number of the Sale Shares to be
purchased by him. Upon the giving by the Company of any such notice as
aforesaid the Proposing Transferor shall be bound, subject to CLAUSE 16, to
complete the sale of the Sale Shares at the Sale Price to which such notice
relates in accordance with its terms.
13.9 If the Proposing Transferor shall not, prior to the expiry of the
Prescribed Period, find other Shareholders willing to purchase some, or, if
the relevant Transfer Notice contains a Total Transfer Condition, all, of
the Sale Shares, it shall be at liberty (subject to receiving all relevant
Regulatory Approvals)
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to transfer those of the Sale Shares not purchased by other Shareholders or
all the Sale Shares (as the case may be) to the Proposing Transferee at the
Sale Price and otherwise on terms and conditions summarised no more
favourable than those in the Transfer Notice.
13.10 A Shareholder shall be permitted to transfer a Share without having to
serve a Transfer Notice pursuant to CLAUSE 13.2 if the Shareholder proposes
to transfer such Shares to any other member of its Group provided that in
the case of a proposed transfer to a subsidiary of the Shareholder or to
another member of its Group which is a lower tier subsidiary of its holding
company than the Shareholder concerned, it obtains the prior written
consent of the other Shareholders to such transfer, such consent not to be
unreasonably withheld or delayed.
14. PROCEDURE IN THE EVENT OF DEADLOCK
14.1 The provisions of this clause shall apply in any case where:-
14.1.1 a substantial matter referred to in CLAUSES 4, 5, OR 6 hereof of
the Society has been considered by a meeting of the Supervisory
Board or the Shareholders General Meeting as the case may be
after the text of the resolution was circulated to the members of
the Supervisory Board referring to this clause; and
14.1.2 no resolution has been carried at such meeting of the Supervisory
Board or the Shareholders, as the case may be, in relation to the
matter by reason of a failure to achieve the required majority of
votes or an equality of votes for and against any proposal for
dealing with it.
Any such case is hereinafter referred to as a "DEADLOCK".
14.2 In any case of Deadlock, Nationwide may, within ten Business Days of such
Deadlock having arisen or become apparent, prepare and circulate to Pioneer
a memorandum referring to this clause and setting out its position on the
matter giving rise to the Deadlock and its reasons for adopting such
position and requesting Pioneer to issue within the next ten (10) Business
Days an equivalent memorandum. Each such memorandum shall be considered by
the Chairman (or his nominee) of Nationwide and Pioneer and Pioneer and
Nationwide shall each cause that its Chairman (or his nominee) shall use
his reasonable endeavours to resolve the Deadlock within a period of thirty
(30) days of his receipt of the first such memorandum or statement being
circulated (whatever the date, if any, of any other such memorandum). If
they agree upon a resolution or disposition of the matter, they shall
exercise the voting rights and other powers of control available to them in
relation to the Society to cause that such resolution or disposition is
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fully and promptly carried into effect. No memorandum shall be issued under
this clause within 12 months of the date of this Agreement.
14.3 If a resolution or disposition of the matter giving rise to a Deadlock is
not agreed to the satisfaction of both Nationwide and Pioneer in accordance
with the provisions of CLAUSE 14.2 within ninety (90) days after the
receipt by the Chairmen of the first memorandum mentioned therein (or such
longer period as Nationwide and Pioneer may agree in writing) Nationwide
may give a written notice (a "DEADLOCK OPTION NOTICE") to Pioneer of its
intention to exercise an option (which Pioneer hereby grants to Nationwide)
to require Pioneer to take one of the following actions (which choice shall
be in Pioneer's sole discretion) : (a) purchase all of the Shares held by
Nationwide or any Associate of Nationwide on the terms set out in CLAUSE 16
at the Option Price, or (b) offer to sell all of the Shares held by Pioneer
or any Associate of Pioneer to Nationwide on the terms set out in CLAUSE 16
at the Option Price. A Deadlock Option Notice shall state that it is a
Deadlock Option Notice given pursuant to this clause of this Agreement and
shall be irrevocable except with the consent of Pioneer. For the avoidance
of doubt, the provisions in this CLAUSE 14 are in addition to any right
which Nationwide may have including but not limited to selling its Shares
to a third party. For the avoidance of doubt, Nationwide is not obliged to
accept any offer made pursuant to CLAUSE 14.3 (b).
14.4 In no circumstances shall either Shareholder create an artificial Deadlock
under this clause nor shall Nationwide exercise, or seek to pursue, its
rights under this clause when a Deadlock is or has become artificial. For
the purposes of this provision, a Deadlock is artificial if caused by a
Shareholder, or its appointees on the Supervisory Board, voting against or
persisting in their opposition to a proposal (i) primarily or substantially
with the intention of frustrating or delaying the proper and efficient
carrying out of the Business or (ii) in any case where the passage or
approval of the same is required to enable the Society to carry on the
Business properly and efficiently and (in either case (i) or (ii)) the
implementation of the proposal is not directly contrary to the significant
business interests of that Shareholder nor required by its obligations
under this or any other agreement between the parties hereto.
15. DEFAULT EVENT OPTION
15.1 In the event that Pioneer shall commit or suffer a Default Event,
Nationwide shall subject to CLAUSE 15.2 be entitled but not obliged to
adopt the procedure described in this CLAUSE 15.
15.2 Nationwide may whilst the Default Event continues to subsist but in any
event within six (6) weeks of Nationwide first becoming aware of the
Default Event give written notice (a "DEFAULT EVENT OPTION NOTICE") to
Pioneer of
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its intention to exercise an option (which Pioneer hereby grants to
Nationwide) to require Pioneer to take one of the following actions (which
choice shall be in Pioneer's sole discretion) : (a) purchase all of the
Shares held by Nationwide or any Associate of Nationwide on the terms set
out in CLAUSE 16 at the Option Price, or (b) offer to sell all of the
Shares held by Pioneer or any Associate of Pioneer to Nationwide on the
terms set out in CLAUSE 16 at the Option Price. For the avoidance of doubt,
Nationwide is not obliged to accept any offer made pursuant to
CLAUSE 15.2 (b).
15.3 The exercise of its rights by Nationwide under this CLAUSE 15 shall be
without prejudice to any other rights or remedies available to Nationwide
in respect of such Default Event including, but not limited to its right to
sell any Shares held by it or any of its Associates to a third party or to
seek damages or specific performance or some other form of equitable
remedy.
15.4 For the purpose of this clause a "DEFAULT EVENT" means the occurrence of
any of the following:-
15.4.1 that Shareholder committing a material breach of its obligations
under CLAUSES 3, 4, 5, 6, 11 OR 13, of this Agreement and, in the
case of a breach capable of remedy, failing to remedy the same to
the reasonable satisfaction of the other Shareholder within
thirty (30) Business Days of being required by notice (referring
to this clause and specifying the breach) so to do by the other
Shareholder;
15.4.2 that Shareholder ceasing or threatening to cease wholly or
substantially to carry on its business, otherwise than for the
purpose of a reconstruction or amalgamation without insolvency
and on terms previously approved by the other Shareholder (such
approval not to be unreasonably withheld or delayed);
15.4.3 any receiver, liquidator, assignee, trustee or sequestrator
taking possession of or being appointed over the whole or any
part of the undertaking, property or assets of that Shareholder;
or
15.5.4. the making of an order or the passing of a resolution for the
winding up of that Shareholder , otherwise than for the purpose
of a reconstruction or amalgamation without insolvency on terms
previously approved by Nationwide (such approval not to be
unreasonably withheld or delayed).
15.5 The provisions of this CLAUSE 15 shall be without prejudice to any rights
or remedies available to Pioneer in respect of a Default Event suffered or
committed by Nationwide including, but not limited to Pioneer's right to
sell any Shares held by it or any of its Associates to a third party or to
seek damages or specific performance or some other form of equitable
remedy.
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16. SHARE TRANSFER MECHANICS
16.1 Completion of the transfer of any Shares by one Shareholder (the "VENDOR")
together with any other relevant members of its Group to the other
Shareholder (the "PURCHASER") pursuant to CLAUSES 13, 14 OR 15 shall take
place on the seventh Business Day after whichever is the later of the date
such obligation arises pursuant to those clauses and the date of
ascertainment of the Option Price and the date of the obtaining of all
necessary Regulatory Approvals and other third party consents and the
Shareholders shall use their respective reasonable endeavours to obtain
such Regulatory Approvals and other consents as soon as practicable and on
terms which do not impose conditions which are both material and to which
the affected party can reasonably (or does not) object. Subject to the
obtaining of such Regulatory Approvals and other consents on such terms,
completion shall take place at 12 noon at the registered office of the
Vendor (or at such other place and time as the Shareholders shall agree)
when the Vendor shall deliver to the Purchaser:-
16.1.1 a duly executed agreement transferring to the Purchaser (or as it
may direct) the relevant Shares together with the relevant share
certificates therefor, such Shares to be sold by the Vendor and
any other relevant members of its Group free from any right of
pre-emption, option, lien, charge, equity or other Encumbrance
and to be sold together with all rights attaching thereto
(including dividends declared but not paid) on the date on which
the sale is to take place;
16.1.2 all other documents of title relating to the relevant Shares and
all such waivers or consents as the Purchaser may reasonably
require to enable it to be registered as the holders of the
relevant Shares;
16.1.3 all third party consents or approvals (insofar as these are
within the power of the Vendor so to obtain) in connection with
the transfer of the relevant Shares to the proposed Purchaser;
16.1.4 such evidence as the Purchaser may reasonably request that any
relevant Regulatory Approvals and other necessary third party
consents have been obtained and their conditions complied with;
and
16.1.5 the written resignation by deed of all members of the Supervisory
Board appointed or deemed to have been appointed by the Vendor.
16.2 Against receipt of the documents referred to in CLAUSE 16.1, the Purchaser
shall as a further part of completion:-
16.2.1 deliver to the Vendor such evidence as the Vendor shall
reasonably request that any relevant Regulatory Approvals and
other necessary
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third party consents have been obtained and their conditions
complied with;
16.2.2 put to the Vendor in (unless otherwise agreed by the
Shareholders) cleared funds for the purchase consideration for
the relevant Shares; and
16.2.3 procure the release of the Vendor (and any of its Associates)
from any Guarantees given to third parties in respect of the
Society provided that in the event that such release is not
available at completion of such sale, the Purchaser (and any
guarantor of its obligations hereunder) shall indemnify the
Vendor in respect of any liability whatsoever (including costs)
it or its Associates may have under any such Guarantees.
16.3 If the put options in CLAUSES 14.3 (a) or 15.2 (a) are exercised or if
either of the offers to sell referred to in CLAUSES 14.3 (b) or 15.2 (b)
are made by Pioneer and accepted by Nationwide, the Shareholders shall
endeavour to agree the price at which Pioneer will acquire all the Shares
held by Nationwide and its Associates, or, as the case may be, Nationwide
will acquire all the Shares held by Pioneer and its Associates. The price
as so agreed shall be the Option Price. If the Shareholders fail to agree
such price within 30 days of the Deadlock Option Notice or, as the case may
be, the Default Event Option Notice, Nationwide and Pioneer shall each
separately instruct an expert in the valuation of companies in the
financial services sector (the "EXPERTS") to determine the open market
value (the "MARKET VALUE") of the relevant Shares as between a willing
seller and a willing third party buyer at the date of the Deadlock Option
Notice or Default Event Option Notice (as the case may be).The Experts
shall act as experts and not as arbitrators and their decisions shall be
incorporated on to a certificate. The fees and expenses claimed by each
Expert shall be bourne by the party which instructed them. The Option Price
shall be the average of the Market Values determined by the two Experts.
17. ASSIGNMENT
Neither of the Shareholders shall assign or declare any trust of any Shares
it holds from time to time or any interest therein nor assign or transfer
or purport to assign or transfer or declare any trust of any of its rights
or obligations under this Agreement without the prior written consent of
the other Shareholder.
18. PROTECTION AND USE OF NAME
18.1 For the avoidance of doubt nothing in this Agreement permits or will permit
Pioneer or any of its Associates or the Society to use the name
"Nationwide"
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or any derivative thereof in any business conducted by Pioneer or any
Associate of Pioneer.
18.2 For the avoidance of doubt, nothing in this Agreement permits or will
permit Nationwide or any of its Associates to use the name "Pioneer" or any
derivative thereof in any business conducted by Nationwide or any Associate
of Nationwide.
18.3 Pioneer hereby confirms that it consents to the use by the Society and the
Fund, in connection with the Business, of the name "Pioneer" and the
trademarks and logo of Pioneer. Pioneer shall, and shall cause that its
Associates shall, permit the Society and the Fund to use the name "Pioneer"
for not less than four years following Completion and thereafter for so
long as Pioneer of any other member of the Pioneer Group remains a
Shareholder. Upon all members of the Pioneer Group ceasing to be a
Shareholder, (a) Pioneer may give notice to the Society and the Fund that
they are to cease to use the name "Pioneer" and thereafter (b) Nationwide
(and any other Shareholder at that time that is a party to this Agreement)
shall promptly exercise all voting rights and powers available to it to
cause the Society and the Fund to change their names to remove the name
"Pioneer" provided, however, that if Pioneer and the other members of the
Pioneer Group cease to be a Shareholder before the fourth anniversary of
Completion, such revocation of right and change of names shall not take
effect until the fourth anniversary of Completion, unless the Shareholders
agree otherwise on an earlier date.
The parties further agree that as soon as practicable and in any event
prior to Completion, Pioneer shall cause Pioneer Investment Fund Company to
grant a non-exclusive royalty-free licence (the "LICENCE") to the Society
to use the trademarks and logo of Pioneer in the Business. The parties to
this Agreement agree to negotiate the terms of the Licence in good faith as
soon as practicable and in any event prior to Completion.
Pioneer shall not and shall cause that its Associates shall not terminate
the Licence or any other agreement permitting the Society and the Fund to
use in connection with the Business, the trademarks or logo of Pioneer
during the period of four years following Completion and thereafter for so
long as Pioneer or any member of the Pioneer Group remains a Shareholder.
Upon all members of the Pioneer Group ceasing to be a Shareholder, Pioneer
may give, and may cause its Associates to give, notice to terminate or
otherwise revoke the Licence and any other agreement permitting the Society
and the Fund to use the trademarks or logo of Pioneer provided, however,
that if Pioneer and the other members of the Pioneer Group cease to be a
Shareholder before the fourth anniversary of Completion, such termination
or revocation of rights shall not take effect until the fourth anniversary
of Completion, unless the Shareholders agree otherwise on an earlier date.
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19. THIS AGREEMENT NOT TO CONSTITUTE A PARTNERSHIP
None of the provisions of this Agreement (or any of the arrangements
contemplated by this Agreement) shall be deemed to constitute a partnership
between the parties hereto at any time or, save as expressly provided
herein, to constitute any party the agent of the other, or to have any
authority to bind the others in any way except as expressly provided.
20. COSTS
All costs, legal fees and other expenses incurred in the negotiation,
preparation and execution of this Agreement shall be borne and paid by the
party which incurred them.
21. CONFIDENTIAL INFORMATION
21.1 Each of the parties undertakes to the other that it shall not (and shall
procure that none of its subsidiaries shall) disclose to any person (other
than those persons (including that person's professional advisers) whose
province it is to know the same on a "need-to-know" basis for the proper
implementation of this Agreement) or use or exploit for any purpose
whatever any of the trade secrets or confidential knowledge or information
or any financial or trading information ("CONFIDENTIAL INFORMATION")
relating to the business or affairs the other parties (or their Associates)
which the relevant parties (or their Subsidiaries) may receive or obtain as
a result of negotiating for or entering into this Agreement, and shall use
its reasonable endeavours to prevent its (and their) employees and agents
from so acting.
21.2 Each party shall (and shall cause their Associates shall) (i) cause that
anyone coming into receipt of Confidential Information consistently with
this clause shall be informed upon receipt that such information is
Confidential Information and (ii) use their reasonable endeavours to
procure that any person to whom disclosure is made under (i) of this clause
shall comply with the provisions of this clause in respect of such
Confidential Information as if they were Shareholders.
21.3 The restrictions in this clause shall continue to apply for three years
after the expiration or sooner termination of this Agreement but shall
cease to apply to information or knowledge which:-
21.3.1 may properly come into the public domain through no fault of or
breach of this Agreement by the party so restricted; or
21.3.2 a party (or other person properly receiving the information
consistent with CLAUSE 21.1) is required to disclose by law or by
order of any court or by any competent governmental or other
regulatory authority, provided that any information required to
be
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disclosed pursuant to CLAUSE 21.3.2 shall be disclosed only to
the extent required by such law, order governmental or other
authority and only after consultation with the other parties;
21.3.3 information which is independently developed by the relevant
party or acquired from a third party to the extent that it is
acquired with the right to use or exploit or disclose the same;
21.3.4 any announcement made in accordance with the terms of CLAUSE 23
(ANNOUNCEMENTS).
22. DURATION
22.1 This Agreement shall unless otherwise agreed in writing between the
Shareholders continue in full force and effect until the first to occur of
the following dates:-
22.1.1 the date on which the Shareholders cease to be beneficially
entitled to any Shares;
22.1.2 the date of commencement of the dissolution of the Society.
Provided that notwithstanding the termination of this Agreement
nothing shall:-
22.1.3 relieve either Shareholder or any of their Associates from any
liability or obligation in respect of any act or omission by such
Shareholder or Associate up to the date of termination of this
Agreement or under or pursuant to any other agreement or
arrangement between any Shareholder (or any of its Associates)
and the Society;
22.1.4 affect the obligations of the parties under clauses 11
(COMPETITION RESTRICTIONS AND REGULATORY ACTION), 21
(CONFIDENTIAL INFORMATION) OR 23 (ANNOUNCEMENTS), and other
provisions of this Agreement which are expressed to survive
termination hereof.
23. ANNOUNCEMENTS
23.1 Save, and insofar as required by the rules of any stock exchange or other
governmental or regulatory authority (whether or not having the force of
law) to which a party may be subject, no announcement shall be made by any
party either before or after Completion in relation to any of the
transactions provided for in this Agreement without the prior written
consent of both Pioneer and Nationwide which prior written consent shall
not be unreasonably withheld or delayed.
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23.2 Each of the parties undertakes to provide all such information known to it
or which, on reasonable enquiry, ought to be known to it as may reasonably
be required by the other parties for the purpose of complying with the
requirements of any stock exchange or other governmental or regulatory
authority to which one of the parties to this Agreement is subject.
24. WAIVER, FORBEARANCE AND VARIATION
24.1 The rights of any party shall not be prejudiced or restricted by any
indulgence or forbearance extended to any other party and no waiver by any
party in respect of any breach shall operate as a waiver in respect of any
subsequent breach.
24.2 This Agreement shall not be amended, varied or cancelled, unless such
amendment, variation or cancellation shall be expressly agreed in writing
by each party.
25. GOVERNING LAW, LANGUAGE AND JURISDICTION
25.1 The construction, validity and performance of this Agreement shall be
governed in all respects by law of the state of Delaware, without regard to
choice of law provisions.
25.2 All notices or formal communications under or in connection with this
Agreement shall be in the English language or in any other language
accompanied by a translation into English. In the event of any conflict
between the English text and the Polish text, if any, the English text
shall prevail.
25.3 All and any disputes or differences arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof shall be
finally settled by arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association (the "AAA
Rules").
25.4 The place and seat of the arbitration shall be New York and the language of
the arbitral proceedings shall be English.
25.5 All and any awards of the Arbitrators shall be made in accordance with the
AAA Rules in writing and shall be final and binding on the parties who
expressly exclude all and any rights of appeal from all and any awards, to
the extent such exclusion may be validly made.
25.6 The parties agree to keep confidential to themselves and to their legal and
professional advisers the existence and details of any proceedings pursuant
to
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this clause including the parties' submissions and evidence, all and any
awards (their content, reasons and result), save to the extent that such
documents or information are in the public domain or their disclosure is
required by a legal duty or is reasonably necessary to protect or pursue a
legal right or remedy.
26. SEVERABILITY
If any of the provisions of this Agreement is found by an arbitrator or
other competent authority to be void or unenforceable, such provision shall
be deemed to be deleted from this Agreement and the remaining provisions of
this Agreement shall continue in full force and effect. Notwithstanding the
foregoing the parties shall thereupon negotiate in good faith in order to
agree the terms of a mutually satisfactory provision to be substituted for
the provision so found to be void or unenforceable.
27. ENTIRE AGREEMENT
27.1 This Agreement and the Share Subscription Agreement and any other agreement
to be entered into on Completion supersedes any previous agreement between
the parties in relation to the matters dealt with herein and represents the
entire understanding between the parties in relation thereto.
27.2 The provisions of CLAUSES 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 16 and 18
shall be conditional on the conditions in clause 2.1 of the Share
Subscription Agreement being satisfied or waived and on Completion taking
place. The remaining provisions of this Agreement shall come into full
force and effect with effect from 8th April 1999.
27.3 The Original Agreement is hereby restated and replaced in its entirety by
this Agreement and the Original Agreement shall no longer have any legal
effect.
28. THE TERMS OF THIS AGREEMENT TO PREVAIL
In the event of any ambiguity or conflict arising between the terms of this
Agreement and those of the Articles, the by-laws of the Management Board or
the by-laws of the Supervisory Board, the terms of this Agreement shall
prevail as between the parties and the Shareholders shall exercise such
voting rights and other powers available to them to give full force and
effect to this Agreement including without limitation to amend the
Articles, the by-laws of the Management Board or the by-laws of the
Supervisory Board (as the case may be) to the extent reasonably necessary
to remove such ambiguity or conflict.
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29. NOTICES
29.1 Any notice to be given under this Agreement shall be in writing and
delivered by hand and/or internationally recognised courier and/or sent by
post (registered delivery if inland and airmail if overseas) or facsimile
(in the case of facsimile to be confirmed in writing within 48 hours of
being sent by such notice being delivered by hand or sent by registered
delivery as aforesaid). The address for service of each party shall by as
follows:-
Party: THE PIONEER GROUP, INC
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile No: 001 617 422 4286
Attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel
The Pioneer Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile No: 001 617 422 4293
Party: NATIONWIDE GLOBAL HOLDINGS, INC.
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile No: 001 ▇▇▇ ▇▇▇ ▇▇▇▇
Attention of: ▇▇▇▇▇ ▇▇▇▇▇▇
Copy to: ▇▇▇▇ ▇▇▇▇
Nationwide Global Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇ 7254
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Any party may change any of its address, fax number or the name of the
person for whose attention the notice is to be addressed by serving a
notice on the other parties pursuant to this clause.
29.2 A notice shall be deemed to have been served as follows:-
29.2.1 if delivered by hand or internationally recognised courier, at
the time of delivery;
29.2.2 if posted, at the expiration of 48 hours or (in the case of
airmail) seven days after the envelope containing the same was
delivered into the custody of the postal authorities; and
29.2.3 if sent by facsimile or telemessage, at the expiration of 12
hours after the same was despatched
except that if a notice or other communication would be deemed to be
delivered under the above provisions after 5.30pm or on any day which is
not a Business Day, then it shall be deemed instead to have been delivered
at 9.30am on the next day which is a Business Day.
29.3 In proving such service it shall be sufficient to prove that the envelope
was properly addressed and personal delivery was made, or that the envelope
containing such notice was delivered into the custody of the postal
authorities as a prepaid first class recorded delivery or airmail letter
(as appropriate) or that the telex, facsimile or telemessage was properly
addressed and transmitted as the case may be.
30. COUNTERPARTS
This Agreement may be executed in one or more counterparts each signed by
each of the parties and such counterparts shall together constitute one
document.
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SCHEDULE 1
WORDS AND EXPRESSIONS
"ARTICLES": the existing articles of association of the Society or any amended
or substituted version of the articles of association of the Society current for
the time being in accordance with the terms of this Agreement;
"ASSOCIATE": in relation to any party to this Agreement any subsidiary or
holding company of the party or subsidiary of such holding company from time to
time (other than the Society);
"AUDITORS": the auditors of the Society from time to time;
"BUDGET": the Initial Budget and any budget for the Society agreed in accordance
with CLAUSE 4.1.1 and applicable from time to time;
"BUSINESS DAY": any day other than a Saturday, Sunday or any bank or other
public holiday in Poland;
"BUSINESS PLAN": the Initial Business Plan and any business plan for the Society
agreed in accordance with CLAUSES 4.1.3 or 6.1.2 and applicable from time to
time;
"BUSINESS": the business of the Society as described in CLAUSE 2.1;
"COMPLETION": has the meaning set out in the Share Subscription Agreement;
"CONNECTED PERSON": in relation to Pioneer and the Society means any of the
following:
(a) any Associate of Pioneer or the Society;
(b) any director, officer or employee of Pioneer and/or the Society;
(c) any member of the Management Board or Supervisory Board; and
(d) any spouse or infant child of any of the above;
"DEFAULT EVENT": any of the events listed in CLAUSE 15.4;
"DISCLOSURE LETTER": means the letter described as such , dated 8th April 1999
and addressed by Pioneer to Nationwide;
"ENCUMBRANCE" means any interest of any person (including any right to acquire,
option or right of pre-emption) or any mortgage, pledge, lien, assignment,
security interest, title relocation or other security agreement or any agreement
to create any of the above;
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"FINANCIAL YEAR": each accounting reference period of the Society which will end
on 31 December in each year subject to any longer or shorter period being agreed
between the Shareholders;
"FUND": the Pioneer Open Pension Fund;
"GROUP": either or both of the Pioneer Group or the Nationwide Group and
references to "its Group" shall be to the Pioneer Group or the Nationwide Group
as the context shall require;
"GUARANTEES": all guarantees, indemnities, sureties and covenants and letters of
comfort or support (irrespective of the fact they may not be legally binding)
referred to in CLAUSE 9, as varied extended or renewed;
"IN THE AGREED TERMS": in the form of the draft agreed between the parties
attached to this Agreement and initialled for identification at the date of the
Share Subscription Agreement by or on behalf of Pioneer and Nationwide;
"INITIAL BUDGET": the first budget for the Society in the agreed terms;
"INITIAL BUSINESS PLAN": the first business plan for the Society in the agreed
terms;
"INTELLECTUAL PROPERTY": means all patents, trademarks, service marks, community
trade marks, trade names, business names, unregistered trade and service marks,
copyrights, design rights, database rights, rights to or in computer software,
know-how, trade secrets, rights to or in confidential information and all other
commercial monopoly rights, intellectual property rights and rights or forms of
protection of the same or of a similar or equivalent nature or effect which may
subsist anywhere in the world whether or not registered or capable of
registration and any similar or analogous rights to any of the above, together
with all applications for registration of and rights to apply for, and any
licence to use, any of the foregoing;
"LOANS": all loans, loan capital, borrowings and indebtedness in the nature of
borrowing;
"MANAGEMENT BOARD": the management board of the Society;
"NAME": Pioneer Powszechne Towarzystwo Emerytalne;
"NATIONWIDE GROUP": Nationwide and its Associates from time to time;
"OPTION PRICE": the price determined in accordance with CLAUSE 16.3;
"ORIGINAL AGREEMENT": has the meaning set out in RECITAL (D);
"PENSION LAW": the law of 28th of August 1997 on Organising and Operation of
Pension Funds, as amended;
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"PERSON": any person, whether or not having legal personality, including,
without limitation, any firm or body corporate or an unincorporated association
carrying on a trade or business with or without a view to profit;
"PIONEER GROUP": Pioneer and its Associates from time to time;
"REGULATORY APPROVALS": any necessary approvals required by any competent
supranational, governmental or regulatory agencies or authorities;
"SHAREHOLDERS": Pioneer and Nationwide or any person or persons to whom they may
properly transfer their shares pursuant to the provisions of this Agreement;
"SHARE SUBSCRIPTION AGREEMENT": has the meaning set out in RECITAL (B);
"SHARES": shares in the share capital of the Society;
"SOCIETY": Pioneer Powszechne Towarzystwo Emerytalne S.A.;
"SUBSCRIPTION SHARES": the 145,714 Shares to be subscribed for by Nationwide
pursuant to this Agreement;
"SUPERVISORY BOARD": the supervisory board of the Society;
"TERRITORY": Poland;
"WARRANTIES": means the representations and warranties set out in CLAUSE 7 and
SCHEDULE 3.
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SCHEDULE 2
DETAILS OF THE SOCIETY
NAME: Pioneer Powszechne Towarzystwo Emerytalne S.A.
NUMBER: 013232430
REGISTERED OFFICE: INTRACO, ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇
SHARE CAPITAL: PLN 34,000,000 divided in 340,000 registered
common A Series Shares
SHAREHOLDERS:
- NAME: The Pioneer Group, Inc.
- SHARES HELD: 340,000
MEMBERS OF THE
MANAGEMENT BOARD:
- ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - The President
- ▇▇▇▇▇▇ ▇▇▇▇▇
- ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
MEMBERS OF THE
SUPERVISORY BOARD:
- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ - the Chairman,
- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - Vice Chairman
- ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
- ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
AUDITORS: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MORTGAGES AND CHARGES: None
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SCHEDULE 3
REPRESENTATIONS AND WARRANTIES
PART 1
GENERAL REPRESENTATIONS AND WARRANTIES
1. INFORMATION
The information set out in RECITAL (A) and SCHEDULE 2 (DETAILS OF THE
SOCIETY) is complete, true, accurate and not misleading. All information
which has been given to Nationwide or its representatives or professional
advisers by Pioneer and/or the Society or by their respective professional
advisers or other agents in the course of the negotiations leading to this
Agreement (a list of such information provided in written form being
attached to the Disclosure Letter) was when given and is now complete, true
and accurate in all material respects and not misleading in any material
respect. Insofar as any such information are matters of opinion or
represent a forecast, intention or expectation, such opinions, forecasts,
intentions or expectations (as appropriate) are honestly held or believed
by Pioneer and made on reasonable grounds.
2. THE SOCIETY
2.1 The copies of the articles of association of the Society, the statutes of
the Fund, the by-laws of the Management Board and the by-laws of the
Supervisory Board which are attached to the Disclosure Letter are true and
complete in all respects.
2.2 All registers and minute books of the Society, the Supervisory Board and
the Management Board have been properly kept and contain an accurate and
complete record of the matters which should be dealt with in those books,
to Pioneer's knowledge no notice or allegation that any of them is
incorrect or should be rectified has been received and nor are there any
circumstances to Pioneer's knowledge which might reasonably be expected to
lead to any such notice or allegation being served on the Society.
2.3 All returns, particulars, resolutions and other documents required to be
filed with or delivered to Commercial Register by the Society have been
correctly and properly prepared and so filed or delivered.
2.4 Pioneer is the sole legal and beneficial owner of 340,000 Shares free from
Encumbrances and such shares represent the entire issued share capital of
the Society. There is no Encumbrance on, over or affecting any unissued
shares of the Society and no person has the right (exercisable now or in
the future
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and whether contingent or not) to call for the issue of any share capital
of the Society.
2.5 The Society is not and has not agreed to become a member of any
partnership, joint venture, consortium or other unincorporated association
other than a recognised trade association or any agreement or arrangement
for sharing commissions or other income.
3. FINANCIAL STATEMENTS
3.1 The financial statements attached to the Disclosure Letter have been
properly prepared in accordance with the accounting standards adopted by
the Society and accurately state the level of turnover, operating loss and
liabilities of the Society as at 31 December 1998 and for the period from
the date of incorporation of the Society to 31 December 1998 and (save as
expressly disclosed therein) do not include any unusual, exceptional,
non-recurring or extraordinary item of income or expenditure.
4. POST INCORPORATION EVENTS
4.1 Since the date of its incorporation, the Society:
4.1.1 has carried on its business in the normal course and without any
interruption or material alteration in the nature, scope or
manner of its business;
4.1.2 has not acquired or disposed of or agreed to acquire or dispose
of any assets or assumed or incurred or agreed to assume or incur
any material liabilities (actual or contingent) or entered into
any long term, substantial or unusual transaction, whether or not
in the ordinary course of trading;
4.1.3 has not declared, made or paid any dividend, bonus or other
distribution of capital or income;
4.1.4 save as set out in the Initial Business Plan, it has not entered
into any contract involving capital expenditure in an amount
exceeding US$ 100,000 or its equivalent or contracts in aggregate
involving an amount exceeding US$ 100,000 or its equivalent;
5. TRANSACTIONS WITH MEMBERS OF THE PIONEER GROUP AND CONNECTED PERSONS
5.1 There is not outstanding:
5.1.1 any indebtedness or other liability (actual or contingent) owing
by the Society to Pioneer or any Connected Person or owing to the
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Society by any member of the Pioneer Group or any Connected
Person; or
5.1.2 any guarantee or security for any such indebtedness or liability.
5.2 There is not outstanding, and there has not at any time since the formation
of the Society been outstanding, any agreement, arrangement or
understanding (whether legally enforceable or not) to which the Society is
a party and in which any member of the Pioneer Group or to Pioneer's
knowledge any Connected Person is or has been interested, whether directly
or indirectly.
5.3 No member of the Pioneer Group or, to Pioneer's knowledge, any Connected
Person, either individually or with any other person or persons, has any
interest, directly or indirectly, in any business which has a trading
relationship with the Society or (other than that now carried on by the
Society) which is or is likely to become competitive with the Business save
as registered holder or other owner of any class of securities of any
company if such class of securities is listed on any stock exchange and if
such person (together with Connected Persons and Affiliates) holds or is
otherwise interested in less than five per cent. of such class of
securities.
5.4 No member of the Pioneer Group either individually, collectively or with
any other person or persons are interested in any way whatsoever in any
Intellectual Property used and not wholly owned by the Society.
6. FINANCE
6.1 Particulars of all money borrowed by the Society (other than normal trade
credit) including, in each case, the name and address of all banks with
whom the Society holds an account and the name and number of such account,
have been disclosed in the Disclosure Letter, and the Disclosure Letter
lists all documents relating to all overdrafts, loans or other financial
facilities outstanding or available to the Society and all Encumbrances to
which any asset of the Society is subject.
6.2 Particulars of all money lent or agreed to be lent by the Society and which
has not been repaid to it (other than normal trade credit) have been
disclosed in the Disclosure Letter and lists of all such documentation
relating to such arrangements are contained in the Disclosure Letter.
6.3 Full details of all grants made to the Society and all outstanding
applications for any such grant, have been disclosed in the Disclosure
Letter. No act or transaction has been effected in consequence of which the
Society is or could be held liable to refund (in whole or in part) any such
grant or in consequence of which any such grant for which application has
been made by it will not or may not be paid or will or may be reduced.
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6.4 The Society is not responsible (including on a contingent basis) for the
indebtedness of any other person nor subject to any obligation (whatever
called) to pay, purchase or provide funds for the payment of, or as an
indemnity against the consequence of default in the payment of, any
indebtedness of any other person.
6.5 No person other than the Society has given any guarantee of or security for
any overdraft, loan or loan facility granted to the Society.
7. ASSETS OF THE SOCIETY
The Disclosure Letter contains a complete and accurate list of (a) all
assets owned by the Society and (b) assets in the possession of the Society
and held under any leasing, hire-purchase, conditional sale, deferred
payment or other similar agreement and up to date details of the rentals
(or alike payments) payable by the Society thereunder.
8. INSURANCE
8.1 All the assets of the Society are insured as provided in the Disclosure
Letter.
8.2 Particulars of all policies of insurance of the Society now in force have
been disclosed in the Disclosure Letter and such particulars are true and
correct and all premiums due on such policies have been duly paid.
9. LITIGATION
9.1 Except as plaintiff in the collection of debts (not exceeding PLN4,000 in
the aggregate) arising in the ordinary course of trading, neither the
Society nor (in relation to the Society's Business) any member of the
Management Board or Supervisory Board or any employee of the Society is now
engaged in any legal proceedings (including litigation, arbitration or any
hearing before any tribunal or official body), no such proceeding are
pending or to Pioneer's knowledge are in prospect.
9.2 There is no matter or fact in existence to Pioneer's knowledge which might
give rise to any legal proceedings involving the Society including any
which might form the basis of any criminal prosecution against the Society
or lead to the termination of any licence held by the Society.
9.3 The Society is not subject to any order or judgment given by any court,
tribunal or governmental agency (other than in respect of the licenses,
permits and consents referred to in paragraph 10.1.) which is still in
force and has not given any undertaking to any court or tribunal or to any
third party arising out of any legal proceedings.
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10. LICENCES AND APPLICABLE LEGISLATION
10.1 The Society has all necessary licences (including statutory licences),
permits, consents and authorities (public and private) for the proper and
effective carrying on of its Business in the manner in which its Business
is now carried on and all such licences, permits, consents and authorities
are valid and subsisting and Pioneer has no knowledge of any reason why any
of them is likely to be suspended, cancelled or revoked whether in
connection with the subscription of Subscription Shares by Nationwide or
otherwise.
10.2 In carrying on its business, the Society, and, to Pioneer's knowledge, its
officers and employees (in connection with the Business) have complied with
all applicable legislation (including the Pension Law), have not received
any notice or allegation and are not subject to any investigation relating
to any breach or alleged breach of the requirements of any legislation
which is applicable to it (in connection with the Business) and Pioneer has
no knowledge of any allegation of any circumstances which may give rise to
any such notice, allegation or investigation.
11. TRADING
11.1 Neither the subscription of Subscription Shares by Nationwide hereunder or
any change in the composition of the Management Board or Supervisory Board
will:
11.1.1 to Pioneer's knowledge cause the Society to lose the benefit of
any right, privilege or licence it presently enjoys;
11.1.2 relieve any person of any obligation to the Society (whether
contractual or otherwise) or entitle any person to determine or
terminate any contract or arrangement with the Society or to
exercise any right whether under an agreement or arrangement with
the Society;
11.1.3 conflict with or result in the breach on the part of the Society
under any of the terms, conditions or provisions of any agreement
or instrument to which the Society is now a party or any loan to
the Society.
11.2 No offer, tender or the like is outstanding (the value of which to the
Society could exceed US$ 100,000 in any year) which is capable of being
converted
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into an obligation of the Society by an acceptance or other act of some
other person.
11.3 The Society is not and has not been a party to any agreement, arrangement,
understanding or practice restricting the freedom of the Society to provide
and take goods and services by such means and from and to such persons and
into or from such place as it may from time to time think fit.
11.4 To Pioneer's knowledge no officer or employee of the Society has made or
received any Sensitive Payment in connection with the Business or on any
permission, confirmation or registration held by the Society. For the
purposes of this paragraph the expression "SENSITIVE PAYMENTS" (whether or
not illegal) shall include (i) bribes or kickbacks paid to any person, firm
or company including central or local government officials or employees or
(ii) amounts received with an understanding that rebates or refunds will be
made in contravention of the laws of any jurisdiction either directly or
through a third party or (iii) any political contributions which world be
unlawful in Poland or (iv) payments or commitments (whether made in the
form of commissions, payments or fees for goods received or otherwise) made
with the understanding or under circumstances that would indicate that all
or part of the payment is to be paid by the recipient to central or local
government officials or as a commercial bribe, influence payment or
kickback.
12. CONTRACTS
12.1 Complete and accurate copies of all contracts to which the Society is a
party with a value in excess of US$100,000 (or its equivalent) have been
disclosed in the Disclosure Letter and the Society is not a party to or
subject to any other agreement, transaction, obligation, commitment,
understanding, arrangement or liability which is inconsistent with the
Initial Budget or the Initial Business Plan.
12.2 The terms of all contracts of the Society have been complied with by the
Society and to Pioneer's knowledge by the other parties to the contracts in
all material respects and there are no circumstances likely to give rise to
a default by the Society or, to Pioneer's knowledge, by the other parties
under any such contract.
12.3 Pioneer has no knowledge of the invalidity of or grounds for, avoidance or
repudiation of any agreement or other transaction to which the Society is a
party and has received no notice of any intention to terminate, repudiate
or disclaim any such agreement or other transaction.
13. EMPLOYEES
13.1 The Disclosure Letter incorporates a complete and accurate schedule of all
employees of the Society including details of their dates of birth, the
date on
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which they commenced continuous employment with the Society and all
remuneration payable and other benefits provided or which the Society is
bound to provide to each such person. In addition, the Disclosure Letter
contains complete copies of all standard terms of employment, staff
handbooks and other statements or documents containing the terms of
employee emoluments and benefits.
13.2 There are no consultancy or management services agreements in existence
between the Society and any other person, firm or company, and there are no
agreements (including collection bargaining agreements) or other
arrangements (binding or otherwise) between the Society or any employers'
or trade association of which the Society is a member and any trade union,
staff association or other body representing employees or a substantial
number of them.
13.3 Save to the extent (if any) to which provision or allowance has been made
in the Initial Budget or the Initial Business Plan:
13.3.1 no liability has been incurred or to Pioneer's knowledge is
anticipated by the Society for breach of any contract of
employment or for services or for severance payments or
redundancy payments or for compensation or damages for unfair or
wrongful dismissal or for any other liability accruing from the
termination or variation of any contract of employment or for
services;
13.3.2 no gratuitous payment has been made or to Pioneer's knowledge
promised by the Society in connection with the actual or proposed
termination, suspension or variation of any contract of
employment or for services of any present or former director,
officer or any dependant of any present or former director,
officer or employee of the Society.
13.4 The Society has complied with all material obligations imposed on it by all
relevant statutes, regulations and codes of conduct and practice relating
to its employees.
13.5 No present member of the Management Board or Supervisory Board, officer or
employee of the Society has given or received notice terminating his
employment except as expressly contemplated under this Agreement.
13.6 Save as disclosed in the Disclosure Letter, the Society does not have in
existence nor is it proposing to introduce, and none of the members of the
Management Board or Supervisory Board or employees participates in, any
employee share trust, share incentive scheme, share option scheme or profit
sharing scheme established by the Society for the benefit of all or any of
its present or former members of the Management Board or Supervisory Board
or employees or the dependants of any of such persons or any scheme under
which any present or former member of the Management Board or
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Supervisory Board or employee of the Society is entitled to a commission or
remuneration of any other sort calculated by reference to the whole or part
of the turnover, profits or sales of the Society or any other person, firm
or company.
13.7 Neither the Society nor any of its employees is involved in any industrial
dispute, no dispute exists or, to Pioneer's knowledge, can reasonably be
anticipated between the Society and a material number or category of its
employees or any trade union or staff association or other body
representing employees or a substantial number of them and, to Pioneer's
knowledge, there are no wage or other claims outstanding against the
Society by any person who is now or has been a member of the Management
Board or Supervisory Board or employee of the Society.
14. PENSION SCHEMES
The Society is not and has not been a party to any agreement or arrangement
for the provision of pensions, allowances, lump sums or other like benefits
on retirement, death or long term ill health for the benefit of any current
or former employee of the Society or their dependants nor has the Society
provided or promised to provide any ex-gratia pensions, lump sums or like
benefits for any current or former employees of the Society or dependants
thereof. In particular, there is no obligation to pay contributions to any
personal pension scheme in respect of any employee.
15. INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY
The Society is the sole owner of all Intellectual Property used in its
business or otherwise has a valid and subsisting legally enforceable right
to use Intellectual Property belonging to a third party which it uses in
its business. The Society is not in breach of any such right in respect of
Intellectual Property to which it is a party.
16. PROPERTIES
16.1 The Society does not own any real property.
16.2 The Disclosure Letter contains a description of the terms of all leases to
which the Society is a party. The leases described in the Disclosure Letter
are in full force and effect; all rents and additional rents owing on each
such lease have been paid; the lessee has been in peaceable possession
since the commencement of the original term of such lease and is not in
default thereunder and no waiver, indulgence or postponement of the
lessee's obligations thereunder has been granted by the lessor; and there
exist no event of default or to Pioneer's knowledge event, occurrence,
condition or act (including the subscription of the Subscription Share)
which, with the giving of notice, the lapse of time or the occurrence of
any further event or condition, would become a and, to Pioneer's knowledge,
all of the covenants
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to be performed by any other party under its lease have been fully
performed.
17. CAPACITY
Pioneer and the Society each have full power to enter into this Agreement
and the Share Subscription Agreement and the other documents to be entered
into pursuant to this Agreement and the Share Subscription Agreement, each
of which constitutes (or will when executed constitute) binding obligations
on Pioneer and the Society in accordance with their respective terms.
18. INSOLVENCY
18.1 The Society has not stopped payment of its debts, has not entered into any
scheme of arrangement or voluntary arrangement with any of its creditors,
is not insolvent and no order has ever been made or petition presented or
resolution passed for the winding up of the Society.
18.2 There are no circumstances which would entitle any person to present a
petition for the winding up of the Society or to appoint a receiver or
administrator over the whole or any part of the Society's undertaking or
assets.
PART 2
TAXATION REPRESENTATIONS AND WARRANTIES
To Pioneer's knowledge:
1. All notices, returns, computations and registrations of the Society for the
purpose of taxation have been made punctually on a proper basis and are
correct and none of them is, or is likely to be, the subject of any dispute
with any taxation authority.
2. All information supplied by the Society for the purpose of taxation was when
supplied and remains complete and accurate in all material respects or, to
the extent it was not so complete and accurate in all material respects, it
has been corrected.
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3. All taxation which Society is liable to pay prior to Completion has been or
will be so paid prior to Completion.
4. The Society has not received and is not aware of any circumstances in which
it might receive any notice or complaint from the tax authorities in relation
to the organisation of the Society.
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SCHEDULE 4
LIMITATION OF LIABILITY
1. A Party shall not be liable under the Warranties if and to the extent that:
1.1 the facts or circumstances which might result in a claim or possible claim
under the Warranties have been fairly disclosed in the Disclosure Letter;
1.2 the subject of the claim is specifically provided for or noted in the
Accounts;
1.3 a claim under the Warranties arises or is increased:-
1.3.1 as a result of an act or omission occurring at the request of or
with the written consent of the Nationwide after Completion;
1.3.2 as a result of an act or omission compelled by law;
1.3.3 as a result of any increase in rates of taxation since
Completion;
1.3.4 as a result of the passing or coming into force of or any change
in any enactment, law, regulation, directive, requirement or any
published practice of any government, government department or
agency or regulatory body after Completion, whether or not having
retrospective effect.
2. The liability of any party in respect of any claim under the Warranties:
2.1 shall not arise unless and until the amount of such claim when aggregated
with other claims based on substantially the same facts or circumstances
exceeds US$ 50,000 (or its equivalent) in respect of any single item;
2.2 shall not arise unless and until the amount of such claim when aggregated
with the amount of any other claim made against that party under this
Agreement exceeds US$ 100,000 (or its equivalent) in which event all of
such claim or claims (and not just the excess) shall be recoverable and no
minimum shall apply to any subsequent claims;
2.3 shall not (when aggregated with the amount of all other claims under the
Warranties) exceed US$ 20,000,000 or, if higher, the amount subscribed by
Nationwide and other members of the Nationwide Group for Shares as at the
date a claim under the Warranties is made.
3. The liability of the parties in respect of any claim under the Warranties
shall cease on first anniversary of Completion.
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SCHEDULE 5
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made on [ - ] BETWEEN
(1) [ - ] of [ - ]; and
[ - ] of [ - ] (together the
"CONTINUING PARTIES")
(2) [ - ] of [ - ] (the
"TRANSFEROR");
(3) [ - ] of [ - ] (the
"TRANSFEREE")
WHEREAS:
(A) The Continuing Parties and the Transferor are parties to a Shareholders'
Agreement dated [ - ] 1999 in relation to the affairs of Pioneer
Powszechne Towarzystwo Emerytalne S.A. (the "SOCIETY") (such Agreement, as
amended herein called the "SHAREHOLDERS' AGREEMENT").
(B) The Transferor intends to transfer [ - ] Shares in the capital of the
Society to the Transferee subject to the Transferee and all other parties
hereto entering into this Deed.
(C) The Transferee wishes to accept such Shares subject to such condition and
to enter into this Deed.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Clause 1 of in the Shareholders' Agreement shall, unless the context
otherwise requires, have effect (as to interpretation and other matters)
also as to this agreement.
1.2 In this deed the "Effective Date" shall mean -.
2. TRANSFER
2.1 With effect from the Effective Date, the Continuing Parties hereby release
and discharge the Transferor from all its obligations under the
Shareholders' Agreement and the Transferor shall cease to be a party to the
Shareholders' Agreement.
2.2 The Continuing Parties agree that, with effect from the Effective Date the
following shall apply:
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2.2.1 the Transferee shall assume all the rights of the Transferor
pursuant to the Shareholders' Agreement; and
2.2.2 the Transferee shall be subject to and shall perform the
obligations from which the Transferor is released and discharged
pursuant to clause 2.1 and shall be bound by and entitled to the
benefit all other provisions of the Shareholders' Agreement
except as hereby provided as if the Transferee had at all times
been a party to the Shareholders' Agreement in place of the
Transferor.
3. TRANSFEROR PROVISIONS
With effect from the Effective Date, the Transferor, in consideration of
the other parties entering into this Deed, hereby agrees (as a separate,
independent and collateral contract with all the other parties to this
Deed) to be bound by the provisions of CLAUSES 11 (COMPETITION RESTRICTIONS
AND REGULATORY ACTIONS), CLAUSE 18 (PROTECTION AND USE OF NAME) AND 21
(CONFIDENTIAL INFORMATION) of the Shareholders' Agreement, as if it had
remained a party to the Shareholders' Agreement.
4. NOTICES
4.1 For the purposes of the Shareholders' Agreement, the Transferee's address
for service shall be as follows:
Address: [ - ]
Facsimile No: [ - ]
Attention of: [ - ]
The Transferee may change its address, fax number or the name of the person
for whose attention the notice is to be addressed by serving notice on the
other parties pursuant to the Shareholders' Agreement.
4.2 CLAUSES 20 (COSTS) to 30 (COUNTERPARTS) inclusive of the Shareholders'
Agreement shall apply to this deed mutatis mutandis as if set out herein
except as otherwise provided.
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SIGNATURES:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
For THE PIONEER GROUP, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
For NATIONWIDE GLOBAL HOLDINGS, INC.
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