EXHIBIT 2.1
HUTA "ZAWIERCIE" S.A.
WITH ITS REGISTERED SEAT
IN ZAWIERCIE
SHARE PURCHASE AGREEMENT
MADE ON THIS JULY 22, 2003
BY AND BETWEEN
IMPEXMETAL S.A.
AND
COMMERCIAL METALS (INTERNATIONAL) AG
SHARE PURCHASE AGREEMENT
RELATING TO HUTA "ZAWIERCIE" SPOLKA AKCYJNA WITH ITS REGISTERED SEAT IN
ZAWIERCIE
This agreement, hereinafter referred to as the "AGREEMENT" is made on this July
22, 2003 in Warsaw, by and between:
IMPEXMETAL S.A. with its registered seat in ▇▇▇▇▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇.
(▇▇▇▇▇)▇▇▇▇ 7/9, a joint stock company entered in the Register of Entrepreneurs
by the District Court for the Capital City of Warsaw, XIX Commercial Division of
the National Court Register, under number ▇▇▇▇▇▇▇▇▇▇, hereinafter referred to as
the "SELLER", represented by:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President of the Management Board, and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Member of the Management Board.
and
COMMERCIAL METALS (INTERNATIONAL) AG with its registered seat in Baar,
Switzerland, a company entered in the Principal Register kept by the Commercial
Registers Office of the Zug Canton, under number CH-170.3.010.397-2, hereinafter
referred to as the "BUYER", represented by:
▇▇▇▇▇ ▇▇▇▇▇▇▇, President,
Ruedi Auf der Maur, Managing Director.
The Seller and the Buyer shall hereinafter be jointly referred to as the
"PARTIES", and individually as a "PARTY".
PREAMBLE
WHEREAS:
(A) The Seller owns 9,954,359 (nine, nine hundred and fifty-four thousand,
three hundred and fifty-nine) ordinary registered series A shares of
PLN 10 (ten) par value per share, of Huta "Zawiercie" S.A. with its
registered seat in Zawiercie.
(B) The Seller intends to sell and the Buyer intends to buy the shares
referred to in section (A) of the Preamble on the terms and conditions
set forth herein;
(C) As it is required to obtain relevant consents and permits to transfer
the ownership title to the shares referred to in section (A) of the
Preamble, to the Buyer, and it is required further for the Parties to
cooperate with third parties in performance of the specific obligations
referred to in the Agreement, the Parties express their determination
to obtain all the relevant consents and permits and to perform all the
obligations referred to in the Agreement on as soon as possible basis;
(D) In anticipation of execution of this Agreement on July 22, 2003, the
Seller procured that the supervisory board of Huta Zawiercie S.A.
dismissed certain members of the management board of that company and
appointed a person designated by the Buyer in their stead; furthermore,
the Seller caused the supervisory board of Huta Zawiercie S.A. to limit
the number of members of the management board to two only;
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NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.1 Unless the content or context of this Agreement require otherwise, all
the capitalized terms used throughout this Agreement shall have the
meanings assigned thereto below:
SHARES means 9,954,359 (nine million, nine hundred
fifty-four thousand, three hundred
fifty-nine) ordinary registered series A
shares of PLN 10 (ten) par value per share,
of the Company with numbers as evidenced in
the list attached hereto as Schedule No. 1,
jointly constituting 71.1% of the Company's
share capital and representing 71.1% of the
voting power at Company's general meeting
of shareholders;
ESCROW BANK means Bank Polska Kasa Opieki S.A. with its
registered seat in Warsaw, a joint stock
company entered in the Register of
Entrepreneurs by the District Court for the
Capital City of Warsaw, XIX Commercial
Division of the National Court Register,
under number 0000153588;
BRE BANK means BRE Bank S.A. with its registered
seat in Warsaw, a joint stock company
entered into the Register of Entrepreneurs
by the District Court for the Capital City
of Warsaw, XIX Commercial Division of the
National Court Register under number
0000025237;
DEPOSIT means the deposit kept by the Escrow Bank
pursuant to the Deposit Agreement;
SETTLEMENT DATE means the date occurring two (2) business
days prior to the Closing Date, on which
the Seller, on the terms and conditions set
forth in Article 2.5 settles or procures
settlement of all due and payable
receivables of (i) the entities of the
Company Group; and (ii) the Seller and the
entities of the Seller's Group;
COOPERATION means the date occurring two (2) business
AGREEMENTS' days prior to the Closing Date on which the
SETTLEMENT DATE Seller, on the terms and conditions defined
in Article 2.6, settles the Cooperation
Agreements with the Company;
CLOSING DATE means the date on which the ownership title
to the Shares will be transferred to the
Buyer;
EXECUTION DATE the date of signing the Agreement by the
Buyer and the Seller;
COMPANY GROUP means all or any, as the context requires,
of the following companies: (i) Hutsprzet
Sp. z o.o.; (ii) Elserw Sp. z o.o.;
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(iii) Energomedia Sp. z o.o., (iv) Kolhut
Sp. z o.o., (v) Centroz(3)om Katowice Sp. z
o.o., (vi) Putex Sp. z o.o., (vii) HZ
Format Sp. z o.o., (viii) HZ Service Sp. z
o.o., (ix) Centrum Zawiercie Sp. z o.o.,
(x) Scrapena S.A., (xi) Scrap-Service Sp. z
o.o.; and (xii) the Company;
SELLER'S GROUP means all or, if the context so requires,
any of the Seller's subsidiaries or
affiliates, as defined in the Commercial
Companies Code, excluding the entities of
the Company Group;
CONFIDENTIAL means (i) any and all information and
INFORMATION documents in possession of any Party, its
employees, representatives and advisors and
relating to the entities from the Company
Group; and (ii) information concerning this
Agreement;
MATERIAL ADVERSE means:
CHANGE (a) any change, except for any changes
resulting from market conditions,
particularly any changes resulting from the
seasonal character of operations of the
entities of the Company Group, whether or
not foreseeable or known as of the
Execution Date, excluding however, any
changes known by the Buyer on the Execution
Date, that, individually or in the
aggregate with any such other changes,
events or effects, is or could reasonably
be expected to (whether or not such change,
event or effect has, at the time in
question, manifested itself in the
financial statements of the entities of the
Company Group) result in (i) a reduction of
fixed assets by PLN 75,000,000 (seventy
five million), (ii) an increase in
liabilities by PLN 100,000,000 (one hundred
million), or (iii) a reduction in company
equity by PLN 40,000,000 (forty million),
in each case, of the Company Group taken as
a whole as compared to the standing of the
Company Group as of May 31, 2003, or
(b) any material casualty, or damage
(whether or not covered by insurance) to
any facility, property, or equipment in
possession of the entities of the Company
Group which results or is reasonably
expected to result in non-planned stoppage
of production with respect to melting and
rolling of steel products by the Company
for more than forty five (45) days.
COMMERCIAL means the act of September 15, 2000 - the
COMPANIES CODE Commercial Companies Code (Dz.U. No. 94,
item 1037, as amended);
BUYER means COMMERCIAL METALS (INTERNATIONAL) AG,
with its registered seat in Baar,
Switzerland, a company entered in the
Principal Register kept by the
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Commercial Registers Office of the Zug
Canton, under number CH-170.3.010.397-2; a
copy of an extract from the register of the
Commercial Registers Office of the Zug
Canton relating to the Buyer is attached as
Schedule No. 2 to the Agreement;
IMPEX DEBT VALUE means the amount of outstanding debts of
the Seller and the entities of the Seller's
Group after a proper Settlement had been
made, such amount not exceeding PLN
1,000,000 (one million);
HZ DEBT VALUE means the amount of outstanding debts of
the entities of the Company Group after a
proper Settlement has been made, such
amount not exceeding PLN 1,000,000 (one
million);
ESCROW AMOUNT means PLN 20,000,000 (twenty million);
MAXIMUM AMOUNT means PLN 250,000 (two hundred and fifty
thousand) increased by the goods and
services tax (VAT) due thereon;
DEDUCTIBLE means the amount provided in the
Cooperation Agreements' Settlement Notice
and in the representation of the Company
(approved by the Buyer's Representative),
attached to the Cooperation Agreements'
Settlement Notice;
IMPEX DEBT means the amount provided in the Settlement
DEDUCTIBLE Notice and in the representation of the
Company (approved by the Buyer's
Representative), such amount constituting
the outstanding debts of the Seller and the
entities of the Seller's Group, established
after a proper Settlement had been made,
and exceeding PLN 1,000,000 (one million);
HZ DEBT INCREASE means the amount provided in the Settlement
Notice and in the representation of the
Company (approved by the Buyer's
Representative), such amount constituting
the outstanding debts of the entities of
the Company Group, established after a
proper Settlement had been made, and
exceeding PLN 1,000,000 (one million);
SETTLEMENT AMOUNT means the value of receivables which have
not been settled, provided in the
Settlement Notice and in the representation
of the Company (approved by the Buyer's
Representative) attached to the Settlement
Notice;
COOPERATION means the value of receivables which have
AGREEMENTS' not been settled, provided in the
SETTLEMENT AMOUNT Cooperation Agreements' Settlement Notice
and in the representation of the Company
(approved by the Buyer's Representative),
attached to the Notice of Cooperation
Agreements'
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Settlement;
TOTAL PURCHASE PRICE means the total price of purchase of the
Shares, as defined in Article 2.2 of the
Agreement, which may be increased or
decreased in accordance with Article 2.5 or
Article 2.6 hereof;
INFORMATION means the information memorandum relating
MEMORANDUM to the Company and prepared by BRE
Corporate Finance S.A. with its registered
seat in Warsaw;
BREACH OF AGREEMENT means any action or omission by a relevant
Party, as referred to in Article 9.2
hereof;
NOTARY means a notary designated by the Buyer,
acting as a person of public trust and
performing actions referred to in the
Notary's Office Law of February 14, 1991
(unified text Dz.U. 2002, No. 42, item 369,
as amended);
TERM FOR MAXIMUM means the term between May 31, 2003 and the
AMOUNT Cooperation Agreements' Settlement Date;
REPRESENTATION WITH means the Seller's representation delivered
INSTRUCTIONS RELATING to the Buyer not later than one day prior
TO THE FIRST PART OF to the Closing Date, designating one or
PURCHASE PRICE several bank accounts to which the Buyer
will transfer the First Part of Purchase
Price; the form of Representation with
Instructions Relating to the First Part of
Purchase Price is attached as Schedule No.
3 to the Agreement;
NOTICE OF WAIVER OF means a BRE Bank's representation,
BRE BANK'S SECURITY substantially in the form and content
INTEREST attached hereto as Schedule No. 4, or any
other document issued by BRE Bank to
confirm expiry of BRE Bank's Security
Interest;
NOTICE OF WAIVER OF means a PKO BP's representation,
PKO BP'S SECURITY substantially in the form and content
INTEREST attached hereto as Schedule No. 5, or any
other document issued by PKO BP to confirm
expiry of PKO BP's Security Interest;
NOTICE OF WAIVER OF means a WFOS's representation,
WFOS'S SECURITY substantially in the form and content
INTEREST attached hereto as Schedule No. 6, or any
other document issued by WFOS to confirm
expiry of WFOS's Security Interest;
FIRST PART OF PURCHASE means the sum of: (i) PLN 40,000,000 (forty
PRICE million) and (ii) total value of the
Seller's liabilities as of the Closing Date
established on the basis of the Impexmetal
Credit Facility Agreements referred to in
the BRE Bank Agreement, provided that the
liability to repay the foreign exchange
credit facility granted to the Seller in
Euros shall be defined in PLN on the basis
of the EUR buy rate used by BRE Bank on the
date of defining the
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First Part of Purchase Price, provided that
such sum will not be greater than PLN
120,000,000 (one hundred and twenty
million);
PKO BP means Powszechna Kasa Oszczednooeci Bank
Polski S.A. with its registered seat in
Warsaw, a joint stock company entered into
the Register of Entrepreneurs by the
District Court for the Capital City of
Warsaw, XX Commercial Division of the
National Court Register, under number
0000026438;
PLN means the Polish zloty - the legal tender
in Poland;
BRE BANK AGREEMENT means the agreement between the Seller, the
Buyer and BRE Bank which was made on the
Execution Date and which comes into force
after execution hereof; a copy of the BRE
Bank Agreement is attached herewith as
Schedule No. 7;
UOKIK PRESIDENT means the President of the Office for
Protection of Competition and Consumers as
referred to in the Protection of
Competition and Consumers Act of December
15, 2000 (Dz.U. No. 122, item 1319, as
amended);
BUYER'S REPRESENTATIVE means ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who was appointed
on July 22, 2003, by the Company's
supervisory board, to the Company's
management board, or any other person who
is appointed to the Company's management
board in accordance with the Buyer's
written request;
SELLER'S means ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, or any other person
REPRESENTATIVE who, prior to the Execution Date or
thereafter, is appointed to the Company's
Management Board in result of Seller's
direct or indirect actions, and who is not
the Buyer's Representative;
BANK'S means the representatives of BRE Bank and
REPRESENTATIVES of PKO BP who may take part in the Closing;
SETTLEMENT means an accurate settlement, on the terms
and conditions defined in Article 2.5
hereof, of due and payable receivables
under agreements, trade orders and
performance of any other actions (excluding
Cooperation Agreements) of: (i) entities of
the Company Group and (ii) the Seller and
the entities of the Seller's Group;
COOPERATION means a settlement made on the terms and
AGREEMENTS' conditions defined in Article 2.6 hereof of
SETTLEMENT all due and payable Seller's receivables
with respect to the Company, as provided in
the Cooperation Agreements;
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COMPANY means Huta "Zawiercie" S.A. with its
registered seat in ▇▇▇▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, at ▇▇. ▇▇(▇)▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇, a
joint stock company entered into the
Register of Entrepreneurs by the District
Court in Katowice, Commercial Division of
the National Court Register under number
0000017925; the share capital of the
Company amounts to PLN 140,000,000 (one
hundred forty million) and is divided into
14,000,000 (fourteen million) ordinary
registered series A shares of PLN 10 (ten)
par value each; an up-to-date copy of an
extract from the Register of Entrepreneurs
of the National Court Register, relating to
the Company, is attached hereto as Schedule
No. 8;
SELLER means IMPEXMETAL S.A. with its registered
seat in ▇▇▇▇▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇,
ul.L ucka 7/9, a joint stock company
entered in the Register of Entrepreneurs by
the District Court for the Capital City of
Warsaw, XIX Commercial Division of the
National Court Register, under number
▇▇▇▇▇▇▇▇▇▇; an up-to-date copy of an
extract from the Register of Entrepreneurs
of the National Court Register, relating to
the Seller, is attached hereto as Schedule
No. 9;
STATUTE means the Company statute as made on
December 27, 1995, as later amended, an
updated wording of which is attached as
Schedule No. 10 hereto;
PARTY means the Seller or the Buyer, depending on
the context, and if used in plural shall
mean both the Seller and the Buyer;
AGREEMENT means this agreement, including all
schedules which shall constitute an
integral part thereof;
DEPOSIT AGREEMENT means the deposit agreement made between
the Parties and the Escrow Bank on the
Execution Date; a form of Deposit Agreement
is attached hereto as Schedule No. 11;
ESCROW ACCOUNT means the escrow account agreement made
AGREEMENT between the Parties and the Escrow Bank on
the Execution Date; a form of Escrow
Account Agreement is attached hereto as
Schedule No. 12;
KNOW-HOW means the agreement made between the
AGREEMENT Company and the Seller on March 10, 1999
(No. BNDF/118/03/99), subsequently amended
by the following annexes: No. 1 of January
10, 2002, No. 2 of November 29, 2002, No. 3
of December 20, 2002, such agreement having
been effectively terminated, and all the
Seller's receivables under that agreement
having been paid; a complete copy
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of the Know-How Agreement is attached
hereto together with the Cooperation
Agreements as Schedule 13;
COOPERATION means all or, as the context may require,
AGREEMENTS each of the following agreements made
between the Company and the Seller: (i)
license agreement on the use of trade ▇▇▇▇
of April 29, 1998, amended by annex No.
1/2003 of February 17, 2003 and annex No
2/2003 of April 8, 2003, pursuant to which
the Seller granted the Company a license
for the logo, trade ▇▇▇▇ and the mixed
logo-trade ▇▇▇▇ sign of Impexmetal; (ii)
consulting services agreement made on
February 3, 2003 pursuant to which the
Seller renders strategic advice,
operational advice, financial advice and
public relations advice services; (iii) an
agreement made on November 28, 2002
pursuant to which the Company agreed to pay
the Seller a fee for the security interests
granted by the Seller for third party
receivables against the Company; true and
complete copies of the Cooperation
Agreements (including the Know-How
Agreement) are attached as Schedule No. 13
hereto;
CONDITIONS TO mean all, or as the context requires any of
PURCHASE the conditions precedent and events listed
in Article 3.1 hereof;
WFOS means Wojewodzki Fundusz Ochrony
aerodowiska i Gospodarki Wodnej (Voivodship
Fund for Protection of the Environment and
Water Management) in ▇▇▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇▇, at ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇;
BRE BANK'S SECURITY means the security interests granted by the
INTERESTS Seller to BRE Bank in relation to the
credit facility of PLN 10,000,000 (ten
million) extended to the Company by the
bank pursuant to the credit facility
agreement No. 11/161/03/2/VV dated May 22,
2003; those security interests include: (i)
Seller's suretiship (poreczenie) for up to
PLN 10,000,000 (ten million) in accordance
with the guarantor's (poreczyciel)
representation of May 21, 2003; (ii) an
ordinary and a registered pledge on 688,064
(six hundred and eighty-eight thousand,
sixty-four) shares of Aluminium Konin -
Impexmetal S.A. with its registered seat in
Konin, pursuant to the pledge agreement of
May 23, 2003 between the Seller and BRE
Bank, provided that the ordinary pledge
created on those shares shall expire once
the registered pledge is entered into the
register of pledges;
PKO BP'S SECURITY means the security interests granted by the
INTERESTS Seller to PKO BP, in relation to a credit
facility of PLN 30,000,000 (thirty million)
extended to the Company of by the bank
pursuant to the agreement No.
202-127/2/I/28/202 dated
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November 29, 2002; those security interests
include: (i) five blank promissory notes
issued by the Company, paid for up to PLN
6,000,000 (six million) each, with the
Seller's guarantee (aval) on each such
promissory note, (ii) registered pledge on
1,714,114 (one million, seven hundred and
fourteen thousand, one hundred fourteen)
shares of Aluminium Konin - Impexmetal S.A.
with its registered seat in Konin, entered
in the registered of pledges on May 14,
2003;
WFOS'S SECURITY means the security interests granted by the
INTERESTS Seller to WFOS in relation to a loan of PLN
8,100,000 (eight million, one hundred
thousand) extended to the Company pursuant
to a loan agreement No. 243/2002/89/OA/od/P
dated December 19, 2002; the security
interest consists of a suretship
(poreczenie) of repayment of the loan,
granted by the Seller for up to the
principal of PLN 2,430,000 (two million,
four hundred and thirty thousand) including
all interest accrued on such principal,
costs and contractual penalties, under the
guarantee agreement (umowa poreczenia) made
between the Seller and WFOS on December 19,
2002;
CLOSING means Buyer's purchase of the Shares;
SETTLEMENT NOTICE means any Seller's written notification on
the Settlement to which the Company's
representation is attached (approved by the
Buyer's Representative) confirming that an
accurate Settlement has been made; form of
Settlement Notice is attached hereto as
Schedule No. 14.
COOPERATION means written notice to the Seller that the
AGREEMENTS' Cooperation Agreements' Settlement has been
SETTLEMENT NOTICE made, accompanied by Company's
representation (approved by the Buyer's
Representative) confirming the accuracy of
the Cooperation Agreements' Settlement and
defining, the Deductible, if any; form of
Cooperation Agreements' Settlement Notice
is attached hereto as Schedule No. 15.
ARTICLE 2
SHARE PURCHASE, ADDITIONAL OBLIGATIONS OF THE PARTIES
2.1 Share Purchase. On the terms and subject to the conditions set forth in
the Agreement, the Seller covenants to sell and to deliver the Shares
to the Buyer and the Buyer covenants to buy the Shares and pay the
Total Purchase Price to the Seller on the Closing Date.
2.2 Purchase Price. Subject to Article 2.5 and Article 2.6. The purchase
price per one Share shall be PLN 20.0917 (twenty and 917/1000), and the
Total Purchase Price for all the Shares shall be PLN 200,000,000 (two
hundred million).
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2.3 Escrow Account. On the Execution Date the Parties and the Escrow Bank
will enter into the Escrow Account Agreement pursuant to which the
Escrow Bank will open and maintain an Escrow Account for the benefit of
the Buyer. For the purposes of securing performance of Buyer's
obligations defined in Article 2.7.2 through the end of 2.7.8, within
three (3) business days after the Execution Date, however not earlier
than within three (3) days from the date of execution of the Escrow
Agreement, the Buyer will pay the Escrow Amount to the Escrow Account.
On the Closing Date the Escrow Amount shall be credited towards Buyer's
payment of the Total Purchase Price. All interest on the Escrow Amount
and other benefits earned on the Escrow Amount being deposited on the
Escrow Account shall be enjoyed by the Buyer, regardless of which Party
is actually paid the amount on such account in accordance with the
Escrow Account Agreement. The costs of opening and keeping the Escrow
Account shall be borne by the Buyer. The terms and conditions
regulating withdrawal of the Escrow Amount from the Escrow Account as
well as other terms and conditions of such agreement shall be set forth
in detail in the Escrow Account Agreement.
2.4 Deposit Agreement. On the Execution Date the Parties and the Escrow
Bank will enter into a Deposit Agreement pursuant to which the Escrow
Bank will open and maintain the Deposit. For the purposes of securing
payment to the Buyer of an amount equal to the Escrow Amount in case of
Seller's failure to perform the obligations defined in Article 2.8.2
through the end of 2.8.9, except, however, for the Seller's obligations
referred to in Article 4.14, 4.16, 4.17, 4.18 and 4.21 which are
referred to in Article 2.8.6, on the Execution Date the Seller will
place a blank promissory note in the Deposit. The Seller's promissory
note shall include the following information: (i) designation of the
Buyer as the entity in favor of which or at the instructions of which
the payment should be made; (ii) the date of issuance of the promissory
note; (iii) the location where the promissory note was issued; (iv)
signature of the Seller as the issuer of the promissory note. Should
the promissory note be released to the Buyer in accordance with the
Deposit Agreement, the Buyer shall be authorized to: (i) fill in the
promissory note with a sum of not more than PLN 20,000,000 (twenty
million) as the promissory note sum, provided that such amount may be
increased by the stamp duty payable with respect to the promissory note
including the promissory note sum as evidenced on such promissory note;
(ii) specify the date of payment of the promissory note (provided that
such promissory note payment date shall be a business day occurring
seven calendar days from the date of Buyer's dispatch of a registered
letter to the Seller to notify the Seller that the promissory note was
filled out in accordance with this Agreement), (iii) designate the
location of payment of the promissory note; (iv) present the promissory
note filled in with the elements designated in this clause to the
Seller for payment. The costs of opening and maintaining the Deposit
shall be borne by the Buyer. The terms and conditions on which the
promissory note will be released from the Deposit as well as other
regulations will be specified in detail in the Deposit Agreement.
2.5 Settlement between the Seller and the Entities of the Seller's Group
and the Entities from the Company Group. Two (2) business days prior to
Closing Date ("SETTLEMENT DATE"), the Seller covenants, in agreement
with the Buyer and the Buyer's Representative, to make all endeavors to
settle, and with respect to the entities from the Seller's Group it
covenants to make all the endeavors to procure
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settlement of all mutual due and payable receivables of (i) the
entities of the Company Group, and (ii) the Seller and the entities of
the Seller's Group, such receivables resulting from any agreements
(except for the Cooperation Agreements), trade orders or other deeds
between the entities from the Company Group and the Seller or the
entities from the Seller's Group ("SETTLEMENT"). On the date following
the Settlement Date the Seller covenants to notify the Buyer in writing
that the Settlement has been made ("SETTLEMENT NOTICE"), by including
with the Settlement Notice the Company's representation (approved by
the Buyer's Representative) confirming accurate, full and complete
Settlement, and if no full and complete settlement of all matured
receivables has been made, a representation of the Company (approved by
the Buyer's Representative) and defining the total amount of matured
receivables remaining to be settled ("SETTLEMENT AMOUNT").
2.5.1 In the event that the Settlement Amount is not greater than
PLN 1,000,000 (one million), the Buyer or the Seller,
respectively, covenant to procure: (i) in the event that the
Settlement Amount constitutes the outstanding debts of the
Seller and the entities from the Seller's Group ("IMPEX DEBT
VALUE"), the Seller covenants to procure that the Impex Debt
Value is repaid within 5 (five ) business days after the
Closing Date; (ii) in the event that the Settlement Amount
constitutes the outstanding debts of the entities from the
Company Group ("HZ DEBT VALUE"), the Buyer covenants to
procure repayment of the HZ Debt Value within five (5)
business days after the Closing Date. For the purposes of
securing performance of the Seller's obligation to procure
repayment of the Impex Debt Value or the Buyer's obligation to
procure repayment of the HZ Debt Value, respectively, the
Seller or the Buyer, respectively, covenant that no later than
on the date preceding the Closing Date but no earlier than on
the date of accurate Settlement, they shall grant a surety
(poreczenie) of repayment of such debts. The form of the
surety referred to in the preceding sentence is attached
hereto as Schedule No. 16.
2.5.2 In the event that the Settlement Amount is greater than PLN
1,000,000 (one million) and the Settlement Amount constitutes
outstanding debts of the Seller and the entities from the
Seller's Group ("IMPEX DEBT DEDUCTIBLE"), the Buyer shall
decrease the Total Purchase Price by the Impex Debt
Deductible. In the event that the Settlement Amount is greater
than PLN 1,000,000 (one million) and the Settlement Amount
constitutes outstanding debts of the entities from the Company
Group ("HZ DEBT INCREASE"), the Buyer will pay the Total
Purchase Price increased by the HZ Debt Increase. If, in
result of application of the above procedure, the Total
Purchase Price is decreased by the Impex Debt Deductible or
increased by the HZ Debt Increase, the Buyer or the Seller, as
the case may be, covenant to procure that the entities whose
matured receivables have not been settled within the scope of
the Settlement do not request repayment of debts thereunder
from (i) the Seller or the entities from the Seller's Group in
case of decrease of the Total Purchase Price by the Impex Debt
Deductible, or (ii) the entities from the Company Group in
case of increase of the Total Purchase Price by the HZ Debt
Increase.
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2.6 Cooperation Agreements' Settlement. Two (2) business days prior to the
Closing Date ("COOPERATION AGREEMENTS' SETTLEMENT DATE") the Seller, in
agreement with the Company, the Buyer's Representative and the Buyer,
covenants to settle all the due and payable receivables of the Seller
under the Cooperation Agreements ("COOPERATION AGREEMENTS'
SETTLEMENT"). The Seller and the Company will make the Cooperation
Agreements' Settlement on the basis of the terms and conditions defined
in the Cooperation Agreements. On the date following the Cooperation
Agreements' Settlement Date the Seller covenants to notify the Buyer in
writing that the Cooperation Agreements' Settlement has been made
("COOPERATION AGREEMENTS' SETTLEMENT NOTICE"), by including with the
Cooperation Agreements' Settlement Notice the Company's representation
(approved by the Buyer's Representative) confirming accurate, full and
complete Cooperation Agreements' Settlement and specifying the
Deductible, as referred to below, or if no full and complete
Cooperation Agreements' Settlement has been made, the Company's
representation (approved by the Buyer's Representative) designating the
total amount remaining to be settled ("COOPERATION AGREEMENTS'
SETTLEMENT AMOUNT") and designating the Deductible, as referred to
below. In the event that the Deductible is designated in the
Cooperation Agreements' Settlement Notice and in the Seller's and the
Company's representation attached to such notice, the Buyer shall
decrease the Total Purchase Price by the Deductible. In the event that
no full and complete Cooperation Agreements' Settlement has been made,
the Buyer covenants to procure that the Company pays the Cooperation
Agreements' Settlement Amount to the Seller within 5 (five) business
days after the Closing Date. For the purposes of securing the
obligation to procure the Buyer's repayment of the Cooperation
Agreements' Settlement Amount no later than on the date preceding the
Closing Date, but no earlier than after making the accurate Cooperation
Agreements' Settlement, the Buyer covenants to grant a surety for
repayment of such amount. The form of surety (poreczenie) referred to
in the preceding sentence is attached as Schedule No. 17 hereto.
2.6.1 Calculation of the Deductible. In the event that in the period
between May 31, 2003 and the Cooperation Agreements'
Settlement Date ("TERM FOR MAXIMUM AMOUNT") the Seller's
remuneration and receivables (including the costs incurred by
the Seller) under the consulting services agreement of
February 3, 2003, in any of the months within the Term of
Maximum Amount, exceed PLN 250,000 (two hundred and fifty
thousand) increased by the goods and services tax (VAT) due
thereon ("MAXIMUM AMOUNT"), the Seller shall be obliged to
provide in the Cooperation Agreements' Settlement Notice,
which shall be confirmed by the Company's representation
(approved by the Buyer's Representative), the total amount
paid to the Seller or the amount of Company's outstanding
debts in that respect, constituting the sum of the amounts
which exceed the Maximum Amount established for each of the
months in the Term for Maximum Amount ("DEDUCTIBLE"). In the
event that a Deductible exists, the Buyer shall decrease the
Total Purchase Price by the Deductible.
2.7 Additional Covenants of the Buyer. Subject to other terms and
conditions of this Agreement which define the Buyer's covenants, the
Buyer covenants, in particular:
13
2.7.1 to deposit the Escrow Amount in the Escrow Account within
three (3) business days of Execution Date, however not earlier
than within three (3) days from execution of the Escrow
Agreement;
2.7.2 to duly perform Buyer's obligations as defined in the BRE Bank
Agreement;
2.7.3 to procure approval by the Buyer's Representative of the
accuracy of the Settlement and the Cooperation Agreements'
Settlement;
2.7.4 to pay to the Buyer's account at BRE Bank, the First Part of
Purchase Price no later than on the day preceding the Closing
Date, however not earlier than within three (3) days from
receipt of Seller's and BRE Bank's notice on the final
definition of the First Part of Purchase Price; and refrain
from, until the Closing Date inclusive, issuing any
instructions with regards to such amounts, except for giving
instructions of transfer of specific amounts (which, in
aggregate, do not exceed the First Part of Purchase Price) to
the bank accounts designated in the Representation with
Instructions Relating to the First Part of Purchase Price;
2.7.5 to procure, no later than on the Closing Date, Seller's
release from the PKO BP Security Interests and the BRE Bank
Security Interests, which release cannot contain any other
conditions other than the terminating condition constituting
the Buyer's failure to buy the Shares; no later than three (3)
business days prior to the Closing Date the Buyer shall
deliver to the Seller either documents or draft documents
relating to execution of this obligation; the contents of the
documents and draft documents delivered to the Seller within
such time should correspond to the contents of the documents
which will be presented to the Seller on the Closing Date;
2.7.6 to procure, no later than on the Closing Date, Seller's
release from the WFOae's Security Interests, which waiver
cannot contain any conditions other than the terminating
condition of Buyer's failure to buy the Shares, no later than
three (3) business days prior to the Closing Date the Buyer
shall deliver to the Seller either documents or draft
documents relating to execution of this obligation; the
contents of the documents and draft documents delivered to the
Seller within such time should correspond to the contents of
the documents which will be presented to the Seller on the
Closing Date;
2.7.7 to collect the share certificates for the Shares;
2.7.8 to pay the Total Purchase Price for the Shares.
2.8 Additional Covenants of the Seller. Subject to other terms and
conditions of this Agreement which define the Seller's covenants, the
Seller covenants, in particular:
2.8.1 to deliver, on the Execution Date, however not earlier than on
the date of execution of the Deposit Agreement, the Seller's
blank promissory note to the Deposit maintained by the Escrow
Bank;
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2.8.2 to duly perform the Seller's obligations as defined in the BRE
Bank Agreement and, in particular, to define, in agreement
with BRE Bank, no later than within five (5) business days
prior to the Closing Date, the amount of the First Part of
Purchase Price and to advise the Buyer that the First Part of
Purchase Price has been defined no later than four (4)
business days prior to the Closing Date;
2.8.3 to procure that until the date on which it will be possible to
hold a Company's general meeting at which the Buyer would be
able to exercise voting rights attached to the Shares, neither
the general meeting nor the supervisory board of the Company,
unless the Buyer decides otherwise, shall dismiss or suspend
the Buyer's representative in his/her duties as a Company's
management board member; in the event that the Seller finds
that the Buyer's Representative acts to the detriment of the
Company or that, in relation to performing duties related to
acting as member of the Company's management board, he/she
performs other illegal actions, the Buyer shall not deny its
consent for the Buyer's Representative's dismissal without
justified reasons; in case of Buyer's Representative dismissal
regardless of the Buyer's consent of once such consent has
been given, the Seller shall procure that the dismissed
Buyer's Representative is replaced by another person
designated by the Buyer to serve on the Company's management
board so that at the time of Buyer's Representative's
dismissal another person designated by the Buyer would be
effectively appointed in his/her stead;
2.8.4 to procure that the Company's management board, in the period
between the Execution Date and the Closing Date, shall consist
of two members, including the Buyer's Representative, unless
the Buyer decides otherwise;
2.8.5 to procure, no later than on the Closing Date, expiry of all
encumbrances on the Shares, subject to Buyer's proper
performance of the BRE Bank Agreement;
2.8.6 to make an accurate Settlement and the Cooperation Agreements'
Settlement as well as terminate the Cooperation Agreements and
duly perform other obligations of the Seller as referred to in
Article 4 of the Agreement;
2.8.7 to grant Seller's consent, in the form as required by law, for
the Buyer to apply to the relevant tax office, acting on the
basis of Article 306g of Tax Ordinance, for a certificate
stating any outstanding tax liabilities of the Seller, such
consent being granted on such date that will allow to receive
the certificate within three (3) days prior to the Closing
Date; such consent will be granted to the Buyer within five
(5) days from the date of Seller's receipt of the Buyer's
request, provided that the Buyer will make the request for the
consent no later than on the second business day after
satisfaction of the Conditions to Purchase as referred to in
Article 3.1.3 and 3.1.4; form of Seller's consent referred to
in this Article is attached hereto as Schedule No. 18;
15
2.8.8 to grant Seller's consent, in the form as required by law, for
the Buyer to apply to the relevant social insurance office
(ZUS) for a certificate evidencing the Seller's outstanding
liabilities with respect to social or health insurance
premiums or any other premiums, payables and public duties
which are collected by social insurance offices, such consent
being granted within the time allowing to receive the
certificate within three (3) days prior to the Closing Date;
the above consent will be granted to the Buyer within five (5)
days from the date of Seller's receipt of the Buyer's request,
provided that the Buyer will make the request for the consent
no later than on the second business day after satisfaction of
the Conditions to Purchase as referred to in Article 3.1.3 and
3.1.4; form of Seller's consent referred to in this Article is
attached hereto as Schedule No. 19;
2.8.9 to deliver to the Buyer the share certificates for the Shares
on the Closing Date.
ARTICLE 3
CONDITIONS TO BUYER'S SHARE PURCHASE
3.1 Catalogue of Conditions to Purchase. Subject to Article 3.4 the
obligations referred to in Article 2.1 shall be performed after the
occurrence of all the events, performance of obligations and
satisfaction of all the conditions precedent referred to in this
Article (the events, performance of obligations and conditions
precedent defined in this Article shall hereinafter be jointly referred
to as the "CONDITIONS TO PURCHASE"). The transfer of the ownership
title to the Shares to the Buyer shall occur after all the following
Conditions to Purchase have been satisfied:
3.1.1 on the Execution Date, execution of the Escrow Account
Agreement and the Buyer's payment of Escrow Amount to the
Escrow Account;
3.1.2 on the Execution Date, execution of the Deposit Agreement and
delivery of the Seller's blank promissory note to the Deposit
kept by the Escrow Bank;
3.1.3 receipt of UOKiK President's decision with unconditional
consent for concentration as defined in the Protection of
Competition and Consumers Act of December 15, 2000 (Dz.U.
2000, No. 122, item 1319, as amended), consisting of the
Buyer's acquisition of the Shares, or after the statutory
period for such decision to be issued has lapsed;
3.1.4 receipt of a permit of the Minister of Internal Affairs and
Administration for Buyer's purchase of the Shares which
constitute a majority stake in the Company's share capital, as
required by the Acquisition of Real Estate by Foreigners Act
of March 24, 1920 (Dz.U. 1996, No. 54, item 245, as amended);
3.1.5 payment to the Buyer's account at BRE Bank, of the First Part
of Purchase Price and refraining, until the Closing Date
inclusive, from issuing any instructions with respect to such
amount except for the ability to issue instructions to
transfer relevant amounts (the aggregate of which shall not be
greater than the First Part of Purchase Price) to the bank
accounts
16
designated in the Representation with Instructions relating to
the First Part of Purchase Price;
3.1.6 the Buyer procuring that the Seller is released from the PKO
BP's Security Interests by: (i) obtaining the Notice of Waiver
of PKO BP's Security Interest which waiver may contain a
terminating condition consisting of Buyer's failure to
purchase the Shares, or (ii) delivery to the Seller of an
irrevocable and payable on first demand bank guarantee for an
amount corresponding to the amount which PKO BP may demand
from the Seller in relation to enforcement of PKO BP's rights
under the PKO BP's Security Interests, or (iii) any other form
of security provided by the Buyer in agreement with the
Seller; or (iv) full and complete repayment of Company debts
which have been secured by the PKO BP Security Interests; and
the Buyer procuring that the Seller is released from the BRE
Bank's Security Interests by: (i) obtaining the Notice of
Waiver of BRE Bank's Security Interest which waiver may
contain a terminating condition consisting of Buyer's failure
to purchase the Shares, or (ii) delivery to the Seller of an
irrevocable and payable on first demand bank guarantee for an
amount corresponding to the amount which BRE Bank may demand
from the Seller in relation to enforcement of BRE Bank's
rights under the BRE Bank's Security Interests, or (iii) any
other form security provided by the Buyer in agreement with
the Seller; or (iv) full and complete repayment of Company
debts which have been secured by the BRE Bank Security
Interests;
3.1.7 the Buyer procuring that the Seller is released from the
WFOae's Security Interests by either (i) procuring a Notice of
Waiver of WFOae's Security Interests, which waiver may contain
a terminating condition consisting of Buyer's failure to
purchase the Shares or (ii) delivering to the Seller an
irrevocable, payable on first demand bank guarantee for the
amount corresponding to the amount which WFOae's may demand
from the Seller in relation to enforcement of WFOae's rights
under the WFOae's Security Interests, or (iii) any other form
security provided by the Buyer in agreement with the Seller;
or (iv) full and complete repayment of Company debts which
have been secured by the WFOae Security Interests;
3.1.8 the Seller procuring expiry of all encumbrances on the Shares
no later than on the Closing Date;
3.1.9 making an accurate Settlement and Cooperation Agreements'
Settlement;
3.1.10 confirmation, through relevant certificates issued by a tax
office and the social insurance office (ZUS) appropriate for
the Seller that the Seller has no outstanding tax liabilities
or liabilities with respect to social and health insurance
premiums or any other premiums, payables and public dues on
the Closing Date;
3.1.11 there being no Material Adverse Change;
17
3.1.12 due performance of the Seller's covenants referred to in
Article 4 (except for 4.14, 4.16, 4.17, 4.18, 4.21) within the
period between the Execution Date and the Closing Date.
3.2 Parties Cooperation with Regards to Satisfaction of the Conditions to
Purchase. The Parties covenant to take all legal and factual actions
which may be reasonably required for all the Conditions to Purchase to
be satisfied on as soon as possible basis. Furthermore, the Parties
covenant to notify each other of satisfaction of the specific
Conditions to Purchase immediately upon such satisfaction, however not
later than within seven (7) days of becoming aware of satisfaction of a
relevant Condition to Purchase. The notice of satisfaction of a
relevant Condition to Purchase should be accompanied by a copy of
respective document evidencing satisfaction of the Condition to
Purchase, provided that such document is required to be issued in
relation to satisfaction of the Condition to Purchase.
3.3 Conditional Decision of the UOKiK President. In the event that in the
decision on consent for concentration consisting of Buyer's purchase of
the Shares the UOKiK President imposes certain additional obligations
on the Buyer, the Buyer may, at its own discretion, either (i) covenant
to perform the additional obligations specified in such decision; or
(ii) withdraw from the Agreement. The Buyer covenants to advise the
Seller of its decision within fourteen (14) days from the date of
delivery of the UOKiK President's conditional consent referred to in
this clause.
3.4 Waiver of Conditions to Purchase. The Parties jointly represent that
except for the Conditions to Purchase referred to in Article 3.1.3 and
3.1.4: (i) the Buyer shall have the right to waive, at any time, all or
any of the Conditions to Purchase provided in Article 3.1.2 and in
Articles 3.1.8 through 3.1.12; and (ii) the Seller shall have the right
to waive, at any time, all or any of the Conditions to Purchase
provided in Article 3.1.1 and in Articles 3.1.5 through 3.1.7. If a
waiver is granted, the Party granting such waiver shall deliver to the
other Party written representation on waiver of all or the relevant
Conditions to Purchase. Unless the Parties jointly decide otherwise,
the consequence of any such waiver will be that a relevant Condition to
Purchase will be deemed satisfied on the date designated in the
representation of the Party granting the waiver which, however, cannot
occur earlier than on the 7th (seventh) and no later than on the 14th
(fourteenth) day from the date of dispatching the waiver to the other
Party.
ARTICLE 4
INTERIM PERIOD
4.1 Operation of Business by Entities of the Company Group. Except as
contemplated by this Agreement or with the prior written consent of the
Buyer or the Buyer's representative, during the period starting from
the Execution Date and until the Closing, the Seller covenants to
procure that the Seller's Representative cooperates with the Buyer's
Representative and the Buyer so that the entities of the Company Group
conduct their respective businesses and operations according to the
entities of the Company Group' ordinary and usual course of business
and use all best efforts to (i) preserve intact the entities of the
Company Group' properties, assets and business operations, (ii) take
reasonable action to keep available the services of executive and
employees of each of the entities of the Company Group, (iii) maintain
satisfactory relationships with customers, suppliers, distributors and
18
others having commercially beneficial business relationships with the
entities of the Company Group. The Seller shall cause the Seller's
Representative to cooperate with the Buyer's Representative so that
none of the entities of the Company Group, take any of the following
actions from the Execution Date until the Closing, without the prior
written consent of the Buyer's Representative or the Buyer:
4.1.1 issue, sell, pledge, transfer, or propose the issuance, sale,
pledge or transfer, of shares in the share capital of any
class in entities of the Company Group, or securities
convertible into any such shares, or any rights, warrants or
options to acquire any such shares or other securities
convertible into shares in the entities from the Company
Group;
4.1.2 redeem, purchase or otherwise acquire any outstanding shares
of the share capital of any entity of the Company Group;
4.1.3 effect any recapitalization, share split or like change in the
share capital of any entity of the Company Group;
4.1.4 create or modify any privileges or preferences with respect to
any shares in the entities of the Company Group's share
capital;
4.1.5 acquire shares in any joint stock company, limited liability
company or enter into any partnership agreement, merger
agreement or effect a transformation of a corporate form of
any entity of the Company Group or enter into any other
agreements having similar effects;
4.1.6 except as required for the transactions contemplated by this
Agreement, propose or adopt any amendment to the articles of
association or statute of any entity of the Company Group;
4.1.7 sell, transfer, pledge or otherwise dispose of any of its
shares, material property, assets or enterprise, or an
organized part of enterprise, or pledge, mortgage or otherwise
encumber any of its shares, material property, assets or
enterprise, or an organized part of enterprise of any entity
of the Company Group;
4.1.8 enter into, amend, modify, cancel or breach any agreement or
unilateral commitment or take any other action providing for
payment or in-kind performance with a value exceeding PLN
1,000,000 (one million) or an equivalent of this sum in other
currency, or enter into, amend, modify, cancel or breach any
contracts or agreements or unilateral commitments or take any
series of other actions in connection with the same
transaction or related transactions or with the same person or
affiliates of such person providing in aggregate for payment
or in-kind performance with a value exceeding PLN 1,000,000
(one million) or an equivalent of this sum in other currency;
4.1.9 enter into, amend, cancel or breach any agreements outside the
ordinary course of business by any of the entities of the
Company Group relating in particular to gas and energy supply,
and sale or purchase of certain
19
products, in particular electrodes, rolled products, supply of
refractory products, bearings, steel scrap, granulated
aluminum products and aluminum wire rods;
4.1.10 enter into any contract or agreement or unilateral commitment
which restrains, restricts, limits or impedes the ability of
any entity of the Company Group to compete with or conduct any
business or line of business in any geographic area;
4.1.11 except as contemplated herein, assume any unilateral
commitments with regards to the Seller or entities of the
Seller's Group nor enter into, amend, cancel or breach any
agreement with the Seller or any such entities;
4.1.12 declare or pay any dividend or other distribution in respect
to any capitals of any of the entities of the Company Group;
4.1.13 take any action resulting in assuming any unilateral
commitment having the effect of increased indebtedness of the
entities of the Company Group nor enter into, amend, cancel or
breach any credit facility or loan agreement;
4.1.14 except for those commitments involving capital expenditures
disclosed in Schedule 20 attached hereto, enter into any
unilateral commitment or agreement or series of unilateral
commitments or agreements involving capital expenditures (or
commitments) exceeding PLN 500,000 (five hundred thousand) or
an equivalent of such sum in other currency;
4.1.15 enter into any agreement with any individual for employment or
the provision of services to any of the entities of the
Company Group for an amount in excess of PLN 100,000 (one
hundred thousand) per year or an equivalent of such sum in
other currency, or amend, cancel or breach the terms of
employment of any executive (particularly a management board
member) whose remuneration is greater than PLN 60,000 (sixty
thousand) per year or the equivalent of such sum in other
currency (a "KEY EMPLOYEE"), or otherwise increase the
compensation or benefits payable to any Key Employee or member
of supervisory board of any of the entities of the Company
Group; this clause shall not apply to the individuals or
additional competencies granted to those individuals as
referred to in Schedule No. 21 to the Agreement;
4.1.16 enter into, amend, cancel or breach any collective labor
agreement of any entity of the Company Group,
4.1.17 enter into any agreement resulting in acquiring by the Company
of ownership or/and perpetual usufruct of any real estate or
fraction of real estate, including the separate ownership of
premises.
4.2 CONDUCT OF TAX AFFAIRS. The Seller shall cause the Seller's
Representative to cooperate with the Buyer's Representative in order to
provide the Buyer's Representative with access to all material
communications with taxation authorities regarding the entities of the
Company Group.
20
4.3 Delivery of Financial Statements and Reports. The Seller shall cause
the Seller's Representative to cooperate with the Buyer's
Representative in order to allow the Buyer's Representative access to,
in particular, monthly financial statements presenting the results of
operations and the balance sheet for each of the entities of the
Company Group for each month not later than on the 30th (thirtieth) day
of the following month after such statements are made. The Seller shall
cause that from the Execution Date until the Closing Date, the Seller's
Representative will cooperate with the Buyer's Representative in such a
manner that the entities of the Company Group provide the Buyer's
Representative with reports on sales, receivables, liabilities and
reserves and minutes of meetings of respective supervisory boards and
the management boards of the entities of the Company Group, for each
month, not later that on the 15th (fifteenth) day of each month.
4.4 Litigation. The Seller shall cause that the Seller's Representative
will cooperate with the Buyer's Representative so that the entities of
the Company Group promptly inform the Buyer's Representative about any
pending or threatened litigation, arbitration, mediation or
administrative proceedings concerning the entities of the Company Group
which could result in payment or in-kind performance by the entities of
the Company Group with a value in excess of PLN 50,000 (fifty thousand)
or the equivalent of such sum in other currency or any other
litigation, arbitration, mediation of administrative proceedings that
could have a material adverse change on the entities of the Company
Group or their respective businesses.
4.5 Notifications to the Company Counterparties. If required by any
agreements made by the Company, the Seller covenants to procure that
the Seller's Representative will cooperate with the Buyer's
Representative so that the Company, immediately after the Execution
Date, would notify parties to such agreements of the Seller's intention
to sell the Shares or request those parties to take a position as far
as continuing to perform under such agreements in relation to the
Seller's intention to sell and subsequently the Seller's sale of the
Shares.
4.6 Notifications to the Company Group Counterparties, Excluding the
Company. If required by any agreements made by entities of the Company
Group, excluding the Company, the Seller covenants to procure that the
Seller's Representative will cooperate with the Buyer's Representative
so that such entities of the Company Group, immediately after the
Execution Date, would notify parties to such agreements of the Seller's
intention to sell the Shares or request those parties to take a
position as far as continuing to perform under such agreements in
relation to the Seller's intention to sell and subsequently the
Seller's sale of the Shares.
4.7 Manner of Cooperation. The Parties resolve that:
4.7.1 in performance of the obligation to cooperate as referred to
in Article 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 4.8, 4.9 of the
Agreement, the Seller's Representative, prior to taking any of
the actions referred to in those Articles, shall obtain the
consent of either the Buyer's Representative or the Buyer for
performance of any such action;
4.7.2 should the Buyer's Representative find that the Seller's
Representative does not cooperate, the Buyer's Representative
shall immediately advise the
21
Seller of any such fact in writing by explaining the
circumstances in the notice; the Seller's obligation to ensure
cooperation shall be deemed satisfied if the Seller does
procure the Seller's Representative to cooperate in a given
matter within three (3) days, and if certain actions are
required to be taken by the Company's supervisory board,
within ten (10) days from the date of receipt of the Buyer's
Representative's notice of no-cooperation;
4.7.3 if the Buyer's Representative did not advise the Seller of a
lack of cooperation on the part of the Seller's
Representative, the Seller's obligation to ensure cooperation
in any given matter is deemed as satisfied.
4.8 Access to Company Information. During the period from the Execution
Date to the Closing Date, the Seller shall not cause, directly or
indirectly, that the Buyer's Representative or any other persons
specifically designated by the Buyer in agreement with the Seller, are
denied access to the books, records, facilities, properties, assets and
other information related to operations of the Company. The Seller
shall not cause, directly or indirectly, that the Buyer's
Representative or other persons specifically designated by the Buyer in
agreement with the Seller, are deprived of the possibility to demand
and receive information from appropriate managers, directors, officers,
employees and representatives of the Company such matters related to
the transactions provided for herein. Furthermore, the Seller, at the
Buyer's request, will provide the Buyer with information on activities
of the Company's supervisory board.
4.9 Access to Information on the Company Group, Excluding the Company.
During the period from the Execution Date to the Closing Date, the
Seller shall not cause, directly or indirectly, that the Buyer's
Representative is denied access to the books, records, facilities,
properties, assets and other information related to operations of the
entities of the Company Group, excluding information relating to the
Company, with regards to which such access has been regulated in
Article 4.8. The Seller shall not cause, directly or indirectly, that
the Buyer's Representative is deprived of the possibility to demand and
receive information from appropriate managers, directors, members of
the supervisory board, officers, employees and representatives of the
entities of the Company Group, excluding information relating to the
Company, with regards to which such access has been regulated in
Article 4.8, with regards to any matters related to the transactions
provided for herein.
4.10 Settlement and Termination of Cooperation Agreements. Subject to
Article 2.6, the Seller shall ensure that no later than on the Closing
Date all the Cooperation Agreements are settled and terminated without
any liability for any such termination or any other liabilities under
such agreements or resulting from termination thereof against the Buyer
or the Company. Standard form of termination of the agreements referred
to in this Article is attached hereto as Schedule No. 22.
4.11 Actions of the Seller Acting as Company Shareholder. Unless otherwise
provided by this Agreement, the Seller shall not, during the period
starting from the Execution Date and until the Closing, exercise the
rights enjoyed thereby due to
22
holding the ownership title to the Shares on the terms and conditions
as provided by this Article.
4.11.1 During the period starting from the Execution Date and until
the Closing, the Seller shall not, without the prior written
consent of the Buyer:
(a) sell, pledge, transfer, or propose the sale, pledge
or transfer, of any Shares or securities convertible
into any Company shares, or any rights, warrants or
options to acquire any Company shares;
(b) enter into a merger agreement with respect to the
Company or effect a transformation of a corporate
form of the Company or enter into any other
agreements having similar effects;
(c) unless the Buyer decides otherwise, vote "in favor"
or "against" or abstain from vote with respect to the
Shares at any Company's general meeting in relation
to adoption of resolutions regarding the following
matters: (i) review and approval of the Management
Board's report on the Company's operations as well as
the financial report for the previous financial year
and approving the performance of duties by members of
the Company authorities; (ii) distribution of profits
or coverage of losses; (iii) change of the scope of
Company's business; (iv) amendment of the Statue; (v)
increase or decrease of the share capital or any
other changes of the structure of the Company's share
capital; (vi) redemption of Company shares; (vii)
division or transformation of the Company or
Company's merger with another company; (viii)
dissolution or liquidation of the Company; (ix)
issuance of bonds; (x) transfer or lease of the
enterprise, creation of a right of usufruct thereon
and purchase or sale of any real property or a share
in a real property and a collection of tangible and
intangible assets which could constitute a separate
enterprise; (xi) dismissal or suspension of Company
management board members in their duties; (xii)
establishment of the number of member of Company's
supervisory board as well as appointment or dismissal
of the Company's supervisory board members; (xiii)
increase or decrease of remuneration of supervisory
board members; (xiv) creation or cancellation of any
other capitals or special purpose funds of the
Company; (xv) specification of the manner of use of
Company's net profit; (xvi) purchase of Company's own
shares; (xvii) mandatory buy out of shares owned by
shareholders representing less than 5% of the
Company's share capital; (xviii) any resolutions
relating to claims for redress of injuries caused in
the course of exercising management or supervision;
(xix) exclusion or restriction of preemptive rights
with respect to newly issued shares;
(d) prior to the Closing Date, the Seller SHALL take all
the factual and legal actions required to convene a
general meeting of shareholders of the Company which
will be held not earlier than seven (7) and not later
that 15 (fifteen) business days after the Closing
Date. The agenda for such shareholders' meeting shall
include points relating
23
to: (i) changes in the Company's supervisory board;
and (ii) amendments of the Statute with respect to
eliminating restrictions regarding satisfaction of
specific conditions by candidates for members of the
Company's management board.
4.12 Company's Supervisory Board and Management Board.
4.12.1 Unless otherwise provided by this Agreement, the Seller shall
take all actions necessary to ensure that between the
Execution Date and the date on which the supervisory board
members, excluding the supervisory board member appointed by
the Company's general meeting from among the candidates
designated by the State Treasury, are not effectively
dismissed or do not effectively resign, the Company's
supervisory board, without the prior written consent of the
Buyer, which shall not be unreasonably withheld, shall not
take any resolutions in the following matters: (i) any
amendments to the supervisory board by-laws; (ii) approval of
the Company's management board by-laws; (iii) entering into
contracts of employment with members of the management board;
(iv) establishment of principles and amount of remuneration
for management board members; (v) appointment and dismissal of
the president, individual members or the entire management
board; (vi) suspension in their duties, due to important
reasons, of the president and the specific members of the
management board or the entire management board; (vii)
delegating one or several members of the supervisory board for
temporary performance of duties of a management board member,
in case of suspension or dismissal of management board members
or the entire management board or if the management board, due
to other reasons, is unable to act; (viii) granting the
management board consent for sale of fixed assets not related
to the scope of Company's operations, having the value of more
than one twentieth of the share capital; (ix) expressing
consent for taking any credit facilities or loans, sale or
purchase of any fixed assets having the value in excess of the
PLN equivalent of EUR 300,000 (three hundred thousand); (x)
consenting for extending any sureties (poreczenia) of a one
time value of EUR 300,000 (three hundred thousand) or
extending to a single entity sureties for a total of the
equivalent of EUR 300,000 (three hundred thousand) in a single
year; (xi) consenting for creation or accession to any
commercial law companies within the scope not reserved for the
general meeting; (xii) approval of any annual business and
investment plans for the Company; (xiii) consenting for
assumption of credit facilities, selling or acquiring fixed
assets having the value greater than 1/10 of the Company's
share capital; and (xiv) consenting for purchase or sale of
any real property or a share in any real property.
Furthermore, at the Buyer's written request made not earlier
than on the date on which the Conditions to Purchase referred
to in Article 3.1.3 and 3.1.4 have been satisfied, but not
later than ten (10) days prior to the Closing Date, the Seller
covenants to cause that the Company's supervisory board
established the number of management board members at three
(3) members and appointed the person designated by the Buyer
to the Company's management board. The resolutions referred to
in the preceding sentence may contain a condition precedent of
24
the Buyer's purchase of the Shares by December 15, 2003. The
form of supervisory board resolution is attached as Schedule
No. 23 hereto.
4.12.2 The Seller shall cause the resignation or dismissal of all
members of the Company's supervisory board on or prior to the
Closing Date, except for the Company's supervisory board
member appointed by the Company's shareholders meeting from
among the candidates designated by the State Treasury. The
form of resignation of a Company supervisory board member is
attached herewith as Schedule No. 24.
4.12.3 Prior to the Closing Date, the Seller shall take all necessary
actions to ensure that after the Closing Date the Buyers'
representatives will be able to hold the positions of members
of the Company's management board, in particular, the Seller
shall amend the by-laws of the Company's management board in
order to remove all restrictions on qualifications for
candidates for members of the Company's management board,
except for the conditions defined in the Statute.
4.13 Release of Encumbrances. Prior to the Closing Date, the Seller shall
take all actions necessary to release the existing pledges and all
other encumbrances over the Shares, in such a manner as to enable the
Buyer to purchase the Shares free of any pledges and encumbrances on
the Closing Date.
4.14 Confidentiality. Prior to the Closing Date, the Buyer shall, except to
the extent required by any laws in force, keep confidential, and shall
use its reasonable best efforts to cause to be kept confidential by its
affiliates, representatives and the Buyer's Representative, all
information concerning the Seller or the entities of the Company Group
disclosed by the Seller or its representatives to the Buyer or its
representatives prior to the Execution Date or hereafter in connection
with this Agreement or the consummation of the transactions
contemplated hereby. None of such information shall be used in any
manner other than in connection with the Parties' due performance of
this Agreement and the transactions contemplated hereby.
4.15 Additional Documents. Subject to the terms and conditions set forth
herein, each of the Parties agrees to take all actions in compliance
with applicable laws and regulations to consummate and make effective
as promptly as practicable the obligations under this Agreement. If at
any time after the Closing Date any further action is necessary or
desirable to carry out the purposes of this Agreement, including,
without limitation, the execution of additional instruments, the
Parties shall take all such necessary action.
4.16 Consents and Approvals. The Parties each shall cooperate with one
another and shall use all efforts to prepare all necessary
documentation to effect promptly all necessary filings and to obtain
all necessary permits and consents, or to confirm that the transactions
contemplated by this Agreement are exempt from the obligation to get
any such permits and consents. Each Party shall keep all other Parties
apprised of the status of any inquiries made of such Party by any
governmental authority, court or other public authority with respect to
this Agreement.
25
4.17 Public Announcements. The Buyer and the Seller shall consult with each
other and shall mutually agree in writing (the agreement of each such
Party, in such respect, not to be unreasonably withheld) upon the
content and timing of any press release or other public statements with
respect to the transactions contemplated by this Agreement and shall
not issue any such press release or make any such public statement
prior to such consultation and agreement, except as may be required by
applicable law; provided, however, that each of the Buyer and the
Seller shall give prior notice to the other of the content and timing
of any such press release or other public statement.
4.18 Information on Bankruptcy Petitions or Motions for Opening of
Arrangement Proceedings. In the event of filing, or becoming aware of a
third party filing a motion for declaration of bankruptcy or opening of
arrangement proceedings of one of the Parties, the Party which filed
such motion or became aware of a motion relating to it being filed,
shall be obliged to immediately advise the other Party thereof in
writing.
4.19 NOTICE OF CERTAIN CHANGES. From the Execution Date until the Closing
Date, each of the Parties shall immediately notify the other Party in
writing upon becoming aware of (i) the occurrence, or likely
occurrence, of any Material Adverse Change or (ii) the occurrence of
any other event that has, or is likely to have, the effect of rendering
untrue any of the representations and warranties made by a Party or the
Company in Article 6 or Article 7 hereof respectively.
4.20 EXCLUSIVITY. During the term of this Agreement, the Seller shall (i)
discontinue all negotiations with any other person, and shall not enter
into any new negotiations regarding the acquisition, transfer,
encumbrance or redemption of any of the Company Shares or shares of any
of the entities of the Company Group, other than as contemplated by
this Agreement, (ii) subject to applicable laws, restrict access to any
confidential information it may have with respect to the entities of
the Company Group or to the members of the respective management boards
of the entities of the Company Group, and (iii) notify the Buyer
immediately upon receipt of any offers or solicitations from third
parties regarding the potential encumbrance or redemption of the
Shares.
4.21 Non-Solicitation. Beginning on the Execution Date and continuing
through the date that is two (2) years following the Closing Date the
Seller and each of the entities of the Seller's Group will not directly
or indirectly, except by means of a general public solicitation
addressed to non-specified addressees, take any action to terminate
employment or any other relation pursuant to which any specific
services are rendered to any entities of the Company Group, the Buyer
or any of its subsidiaries by a person who is the employee or service
provider of any of the entities of the Company Group, the Buyer or its
subsidiaries. This clause shall not apply to service providers who are
independent outside advisors or agents of the Buyer or its
subsidiaries.
ARTICLE 5
CLOSING
5.1 Within seven (7) business days of the date on which the last of the
Conditions to Purchase referred to in Article 3.1.3 and 3.1.4 was
satisfied the Parties will jointly
26
designate the Closing Date in writing, taking into account the
necessity to satisfy other Conditions to Purchase. In case the Parties
fail to agree on the Closing Date, the Closing Date shall be designated
by the Seller, provided that it shall enjoy such right exclusively for
three (3) days after the seven day period referred to above. Should the
Seller fail to designate the Closing Date within the three day period,
the right to designate the Closing Date shall be exclusively enjoyed by
the Buyer. The Seller or, as the case may be, the Buyer, in performance
of the right to individually designate the Closing Date, may designate
the Closing Date on the date which occurs not earlier than on the first
business day following 21 (twenty one) day period after the date on
which the Buyer sent notice to the Seller that the last of the
conditions referred to in Article 3.1.3 or 3.1.4, has been satisfied,
however not later than within one month from the date of delivery of
such notice to the Seller. The Closing shall take place in the presence
of a notary (the "NOTARY") who will accept the documents specified in
Article 5.2.3 and 5.2.5 below to keep in deposit, and will then perform
the actions referred to in Article 5.2.4 and in Articles 5.2.6 through
5.2.8. The Closing may be participated by representatives of BRE Bank
and PKO BP (the "BANK'S REPRESENTATIVES"). The Closing shall take place
at the offices of Weil, Gotshal & ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ Sp. k., ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, 20th floor of the Warsaw
Financial Centre.
5.2 Each of the following events shall occur on the Closing Date, in the
sequence as provided in this Article 5.2.
5.2.1 The Buyer will deliver or procure delivery of the following
documents to the Seller:
(a) a copy of the UOKiK President's consent for the
concentration consisting of the Buyer's acquisition
of the Shares or a representation that the statutory
period for the issuance of such decision has lapsed,
unless it has already delivered such copy of consent
or such representation to the Seller prior to the
Closing Date;
(b) a copy of the permit of the Minister of Internal
Affairs and Administration for the Buyer to purchase
the Shares which constitute a majority stake in the
Company's share capital, unless it has already
delivered a copy of such consent to the Seller prior
to the Closing Date;
(c) confirmation of payment to the Buyer's bank account
at BRE Bank of the First Part of Purchase Price and
confirmation of BRE Bank that on the Closing Date
those moneys were on such bank account;
(d) other documents which have not been previously
delivered and which the Buyer is obliged to deliver
to the Seller no later than by Closing on the terms
and conditions defined in the Agreement.
5.2.2 The Seller will or will cause delivery of the following
documents to the Buyer:
27
(a) certificate issued by the Register of Pledges not
earlier than on the date preceding the Closing Date,
confirming that no pledges or other encumbrances on
the Shares exist, except for the pledge on 8,260,717
(eight million, two hundred and sixty thousand, seven
hundred and seventeen) Company shares out of the
Shares which were pledged in favor of BRE Bank;
(b) copy of an extract from the register of treasury
pledges kept by tax offices appropriate to the Seller
and a copy of an extract from the Central Register of
Treasury Pledges evidencing that no pledges on the
Shares exist, such documents being issued not earlier
than on the day preceding the Closing Date;
(c) evidence that the Company's shareholders meeting has
been convened to perform the Seller's covenant as
referred to in Article 4.11.1 subsection (d), unless
such evidence has been delivered to the Buyer prior
to the Closing Date;
(d) Representation with Instructions Relating to the
First Part of Purchase Price, unless such
representation was delivered to the Buyer prior to
the Closing Date;
(e) documents confirming dismissal or resignation of all
members of the Company supervisory board, except for
the supervisory board member appointed by the
Company's general meeting from among the candidates
designated by the State Treasury;
(f) duly filled out and signed by the Seller motions to
the relevant register of pledges for the deletion of
pledge on 8,260,717 (eight million, two hundred and
sixty thousand, seven hundred and seventeen) shares
from among the Shares or, if the pledge has not been
entered in a relevant register, motions for
withdrawal of the "motions for registration of pledge
on such shares", unless such motions were delivered
to the Buyer prior to the Closing Date;
(g) evidence of termination of the Cooperation Agreements
made between the Seller and the Company, as referred
to in Article 4.10, unless such evidence was
delivered to the Buyer prior to the Closing Date;
(h) representation of the Company, signed by the Company
(including by the Buyer's Representative) with
regards to the accuracy of the Settlement and the
Cooperation Agreements' Settlement, unless such
documents were delivered to the Buyer prior to the
Closing Date;
(i) other documents which have not been previously
delivered and which the Seller is obliged to deliver
to the Buyer no later than by Closing on the terms
and conditions defined in the Agreement, unless such
documents were delivered to the Buyer prior to the
Closing Date.
28
5.2.3 The Seller will or will cause delivery of the following
documents to the Notary:
(a) BRE Bank's representations on granting an
unconditional consent for the sale of 8,260,717
(eight million, two hundred and sixty thousand, seven
hundred and seventeen) shares from among the Shares
in compliance with this Agreement;
(b) BRE Bank's representations on unconditional waiver of
the ordinary pledge on 9,954,359 (nine million, nine
hundred and fifty-four thousand, three hundred and
fifty-nine), including a registered pledge on
8,260,717 (eight million, two hundred and sixty
thousand, seven hundred and seventeen) Company shares
from among the Shares and BRE Bank's unconditional
consent for deletion of the pledge from the relevant
register, or, if the pledge had not been entered in a
relevant register, consent for withdrawal of the
motion for registration of the pledge in the relevant
register of pledges;
(c) power of attorney for litigation purposes to
represent the Seller in any proceedings before court
of proper jurisdiction in any matter for deletion of
pledge or withdrawal of motion to register the pledge
on Company shares, such power of attorney being
granted by the Seller to persons designated by the
Buyer no later than on the Closing Date, provided
that the power of attorney contains the Seller's
representation that the power of attorney will not be
revoked until the date of deletion of the pledge or
issuance by a relevant court of a decision on
discontinuance of proceedings;
(d) global certificates for the Shares, including a
representation on transfer of the Shares to the
Buyer;
(e) confirmation evidencing payment of the Total Purchase
Price, the final value of which will be established
in accordance with the conditions specified in the
Agreement;
(f) representation addressed to the Company's management
board of no objections against registration of the
Buyer as shareholder in the Company's share register
in relation to the Buyer's purchase of the Shares.
5.2.4 Upon receipt of the documents referred to in Article 5.2.3,
the Notary will present those documents to the Buyer for it to
accept their contents and confirm that they are complete.
5.2.5 The Buyer, following acceptance of the documents in accordance
with Article 5.2.4, will or will cause delivery of the
following documents to the Notary:
(a) either Notice of Waiver of PKO BP Security Interest,
including: (i) PKO BP's representation on waiver of
the registered pledge on 1,714,114 (one million,
seven hundred and fourteen thousand, and
29
one hundred and fourteen) shares of Aluminium Konin -
Impexmetal S.A.; (ii) consent for deletion of the
registered pledge on those shares from the relevant
register; (iii) five blank promissory notes with the
Seller's promissory note guarantee which were issued
by the Company; provided that the only condition that
the above referenced PKO BP's representation and
consent may contain is the terminating condition of
Buyer's failure to buy the Shares; or any other
document agreed prior to the Closing Date between the
Buyer and the Seller, in accordance with Articles
2.7.5 and 3.1.6, another document releasing the
Seller of the liability resulting from creation of
the PKO BP Security Interests;
(b) either Notice of Waiver of WFOS's Security Interest
or as agreed prior to the Closing Date between the
Buyer and the Seller, in accordance with Articles
2.7.6 and 3.1.7, another document by which the Seller
is released from liability resulting from creation of
the WFOae's Security Interests;
(c) either Notice of Waiver of BRE Bank Security
Interest, containing a waiver of the registered
pledge on 688,064 (six hundred and eighty-eight
thousand, sixty-four) shares of Aluminium Konin
Impexmetal S.A. and BRE Bank's consent for deletion
of the pledge from the relevant register or, if the
pledge was not entered in the relevant register,
consent for withdrawal of the motion for registration
of the pledge in the relevant register of pledges;
provided that the only condition that the above
referenced BRE Bank's representation and consent may
contain is the terminating condition of Buyer's
failure to buy the Shares; or any other document
agreed prior to the Closing Date between the Buyer
and the Seller in accordance with Articles 2.7.5 and
3.1.6, another document releasing the Seller of the
liability resulting from creation the BRE Bank's
Security Interests;
(d) instructions of wire transfers accepted for execution
by BRE Bank and evidencing that the First Part of
Purchase Price has been made in accordance with the
Representation with Instructions relating to the
First Part of Purchase Price, and a document issued
by BRE Bank with respect to confirmation that the
accounts maintained by BRE Bank and indicated in the
Representation with Instructions Relating to the
First Part of Purchase Price have been credited with
the First Part of Purchase Price;
(e) a cashier's cheque (rozrachunkowy) payable upon
presentation, certified by a reputable bank,
operating in Poland or a document issued by BRE Bank
evidencing that the Seller's account number
11401010-00-208713-PLNCURR01-66 has been credited
with the sum of the Total Purchase Price less the
Escrow Amount and the First Part of Purchase Price,
and increased or decreased in the events as described
in Articles 2.5 and 2.6;
30
(f) confirmation of collection of the Shares from the
Seller, stating that the Shares were purchased in
accordance with the terms and conditions of the
Agreement.
5.2.6 The Notary, upon receipt of the documents referred to in
Article 5.2.5 will present such documents to the Seller for it
to accept their contents and confirm that they are complete.
5.2.7 Unless the Parties decide otherwise, the Notary will return to
each Party all the documents it received from it, if the
Notary finds that any of the Parties did not accept either the
contents or did not confirm the completeness of the documents
presented for its acceptance, or finds that he/she did not
receive all the documents specified in Article 5.2.3 and in
Article 5.2.5 until the close of business on the Closing Date.
In the event that the Closing does not occur due to any of the
reasons described above and the Parties do not decide
otherwise, the Notary will return to the Parties the documents
he/she received from them, and if the Notary received any
specific documents from a Bank's Representative, the Notary
shall return such documents directly to the Bank's
Representative from which he/she has originally received them.
5.2.8 If both Parties accepted all the documents presented to them,
the Notary will destroy the five blank promissory notes
referred to in Article 5.2.5 (a) in the presence of the
Parties and will release to the Seller all the other documents
referred to in Article 5.2.5, while the documents referred to
in Article 5.2.3 will be released to the Buyer.
5.2.9 The Parties will sign a notice addressed to the Company of the
change of the dominating entity for the Company, in compliance
with Article 6 of the Commercial Companies Code.
5.2.10 The Buyer and the Seller will take any and all actions to
cause registration of the Buyer in the Company's share
register as a new shareholder.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE BUYER
6.1 Catalogue of Representations and Warranties. The Buyer hereby
represents and warrants to the Seller that:
6.1.1 The Buyer is a company duly organized, existing and operating
under the laws of the Swiss Confederation;
6.1.2 The Buyer has all the authorizations which are required by law
to enter into the Agreement and to perform the specific
obligations of the Buyer defined herein. The Agreement was
properly entered into by the Buyer, it is binding and may be
enforced against the Buyer in accordance with its terms.
31
6.1.3 Buyer's execution of the Agreement is not in breach of any
laws binding the Buyer nor any agreements, commitments,
decisions and orders binding the Buyer or such which apply to
its assets.
6.1.4 Except as provided in Article 3.1.3 and 3.1.4 of the
Agreement, the Buyer is not obliged to obtain any additional
consents or permits or to make any additional notifications in
relation to the execution or performance of this Agreement.
Nevertheless, the Buyer represents that although there are no
corporate requirements in this respect, it did obtain consent
for execution of this Agreement from its parent company,
Commercial Metals Company with its offices in Irving, Texas,
USA, such consent conditioning execution of this Agreement on
having negotiated, in the Buyer's management opinion,
satisfactory conditions of this Agreement. The Buyer
represents further that on the Execution Date it received,
according to its knowledge, all documents and information
which should be presented to the UOKiK President in relation
to commencement of proceedings aimed at obtaining the permit
of that authority for purchase of the Shares.
6.1.5 The persons signing the Agreement on behalf of the Buyer are
duly authorized and empowered to execute the Agreement on
behalf of the Buyer.
6.1.6 No court, arbitration or any other proceedings are pending
against the Buyer before any court, administration body or
government authority or a court of arbitration which could
influence performance of any transactions contemplated hereby;
6.1.7 The Buyer has the required creditability to raising financing
or has funds required to perform the financial obligations of
the Buyer resulting from this Agreement.
6.1.8 The Buyer reviewed the condition of the Company's enterprise
and conducted a due diligence of the Company in the period
between March 3 - 6, 2003 and June 23 - 26, 2003. The Buyer
conducted such due diligence and analysis of the Company's
enterprise which it considered appropriate and necessary in
relation to its decision to enter into the Agreement. The
Buyer was able to access sources of information within the
scope it thought necessary, particularly the employees
(including the executives), books, records and files of the
Company.
6.1.9 The Buyer represents that it reviewed: (i) the agreement of
June 24, 2003 for construction works made between the Seller
and Scrapena S.A.; (ii) the agreement of June 4, 2003 entered
into between the Company and OSTRANA Internationale
Handelsges.m.b.H with its registered seat in Vienna, Austria;
(iii) the agreement of June 4, 2003 entered into between the
Company and FLT - METALL HmbH with its registered seat in
Dusseldorf, Germany; (iv) the Cooperation Agreements; and (v)
other agreements between the entities of the Company Group and
the Seller and entities of the Seller's Group which were
binding on May 31, 2003. Furthermore, the Buyer represents
that it reviewed the Know-How Agreement. Complete copies of
such agreements referred to in this clause
32
and presented to the Buyer are attached hereto as Schedule No.
13 and Schedule No. 25.
6.1.10 In relation to execution and performance of the Cooperation
Agreements and the Know-How Agreement, the Buyer, following
the Closing Date, will not raise any indemnity claims against
the Seller or members of the Company's management board and
will cause that no such claims are raised by the Company.
Should the Buyer or the Company raise any such claims, the
Buyer will pay a contractual penalty to the Seller in the
amount equal to the sum of the damages adjudged in this
respect, interest and costs of proceedings incurred by the
defendant. For avoidance of doubts, the Parties jointly agree
that no obligation to pay the contractual penalty as referred
to above shall be created if such claims are raised by a third
party; or any shareholder other than the Buyer.
6.1.11 The Buyer reviewed Schedule No. 26 and is not aware of any
information relating to the Company holding any other
ownership titles or the rights of perpetual usufruct to any
real property or a fractional part of a real property nor
separate rights to premises other than those listed in
Schedule No. 26.
6.1.12 Subject to Article 7.1.14 the Information provided in the
Information Memorandum and all other information obtained by
the Buyer for the purposes of execution of the Agreement,
apart from the information contained in representations and
warranties of the Seller included in Article 7 of the
Agreement, may not be relied on in raising any claims against
the Seller or any other persons acting on behalf of the Seller
or the Company, and in particular any of their:
representatives, advisors and consultants.
6.2 Validity of Representations and Warranties. All the representations and
warranties of the Buyer made in this Article shall remain valid and
up-to-date until the Closing Date and thereafter, unless a change or
expiry thereof results from the terms and conditions hereof.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE SELLER
7.1 Catalogue of Representations and Warranties. The Seller hereby
represents and warrants to the Buyer that:
7.1.1 The Seller is a joint-stock company duly organized, existing
and operating under the laws Poland;
7.1.2 The Seller has all the authorizations which are required by
law to enter into the Agreement and to perform the specific
obligations of the Seller defined herein. The Agreement was
properly entered into by the Seller, it is binding and may be
enforced against the Seller in accordance with its terms.
7.1.3 Seller's execution of the Agreement is not in breach of any
laws binding the Seller nor any agreements, commitments,
decisions and orders binding the Seller or such which apply to
its assets.
33
7.1.4 Except as provided in Article 3.1.3, 3.1.4 and in Article
5.2.3 subsection (a), the Seller is not obliged to obtain any
additional consents or permits or to make any additional
notifications in relation to the execution or performance of
this Agreement. The Seller represents further that on the
Execution Date it delivered or caused delivery of, according
to its knowledge, all documents and information which should
be presented to the UOKiK President in relation to
commencement of proceedings aimed at obtaining the permit of
that authority for purchase of the Shares.
7.1.5 No court, arbitration or any other proceedings are pending
against the Seller before any court, administration body or
government authority or a court of arbitration which could
influence performance of any transactions contemplated hereby;
7.1.6 All the Shares have been properly subscribed for or purchased
and they are fully paid.
7.1.7 No offers of sale, preemptive rights, promises to sell or
purchase or any other type of third party authorization or
third party liability with respect to the Shares owned by the
Seller exist, including any which would authorize anyone to
demand an increase or redemption of share capital of the
Company.
7.1.8 The Seller is the sole owner of its Shares and it does not
have any other rights to any share in the Company's share
capital. According to the best knowledge of the Seller,
remaining shareholders of Company other than the Seller do not
have any rights to a share in the Company's share capital,
including any right to dividends, except for the rights as
defined in the Statute.
7.1.9 There are no Company shareholders agreements which the Seller
would be party to and, according to the Seller's knowledge,
there are no other Company shareholders agreements between
other shareholders of the Company.
7.1.10 Subject to the encumbrances disclosed in Schedule No. 27, the
Company shares are free of any encumbrances consisting of any
limited property rights or other commitment related rights
created in favor of any third parties created directly or
indirectly by an agreement, a unilateral representation of
will or by operation of law.
7.1.11 Subject to the resolutions disclosed in Schedule No. 28 to the
Agreement, such resolutions being subsequently revoked or
otherwise becoming invalid, in the period since the Company
has been transformed from a state enterprise into a joint
stock company and until the Execution Date the General Meeting
of Shareholders of the Company has not adopted any resolution
on:
(a) increase, decrease or change of capital structure of
its share capital; orb
34
(b) issuance of securities or other instruments
convertible to company Shares or authorizing to share
Company profits or to exercise any corporate
authority in the Company.
7.1.12 The Seller represents that apart from: (i) the agreement of
June 24, 2003 for construction works made between the Seller
and Scrapena S.A.; (ii) the agreement of June 4, 2003 entered
into between the Company and OSTRANA Internationale
Handelsges.m.b.H with its registered seat in Vienna, Austria;
(iii) the agreement of June 4, 2003 entered into between the
Company and FLT - METALL HmbH with its registered seat in
Dusseldorf, Germany; (iv) the Cooperation Agreements; and (v)
other agreements between the entities of the Company Group and
the Seller or entities from the Seller's Group, which were in
force as of May 31, 2003, the entities of the Company Group
have not entered into any other agreements and have not
performed any actions resulting in any payments or the need to
satisfy any in-kind obligations in favor of the Seller or
entities from the Seller's Group. Complete copies of the
agreements referred to in this clause have been presented to
the Buyer and are attached to this Agreement in Schedule No.
13 and in Schedule No. 25.
7.1.13 The Seller represents that it reviewed the Company's
representation attached to this Agreement as Schedule No. 26
and that it is not aware of any information with regards to
the Company having any other ownership titles or rights of
perpetual usufruct to any real property or a fractional part
of a real property or a separate right to premises, other than
those disclosed in Schedule No. 26.
7.1.14 Subject to temporary concealment of certain information and
documents relating to entities of the Company Group prior to
23 June, 2003 to which the Buyer has then obtained access
within the scope it thought necessary, the Seller represents
that:
(a) it did not conceal from the Buyer or its advisors any
information or documents relating to the entities of
the Company Group for the disclosure of which the
Buyer or its advisors applied, either in writing or
electronically, to the Seller, its representatives,
advisors, and, in particular to BRE Corporate Finance
S.A. with its registered seat in Warsaw;
(b) it did not take any actions aimed at concealing from
the Buyer or its advisors by the entities of the
Company Group, their representatives of any
information or documents relating to the entities of
the Company Group for the disclosure of which the
Buyer or its advisors applied to the entities of the
Company Group and their representatives;
(c) it did not conceal from the Buyer or its advisors,
any documents relating to any factual or legal
actions taken or omitted by the entities of the
Company Group which could be reasonably deemed as
material for the operations of the Company Group and
of which it was aware that they are not known to the
Buyer and its advisors.
35
7.1.15 According to the Seller's knowledge, the entities of the
Company Group, in the period between June 26, 2003 and the
Execution Date, conducted their operations in the manner in
which such operations were conducted in the past, and no
events occurred in such period which would have a material
adverse effect on the condition of such entities' enterprises.
7.1.16 The representations and warranties contained in this Agreement
are the only representations and warranties made by or in the
name of the Seller in relation to execution and performance of
the Agreement.
7.2 Validity of Representations and Warranties. All the representations and
warranties of the Seller made in this Article shall remain valid and
up-to-date until the Closing Date and thereafter, unless a change or
expiry thereof results from the terms and conditions hereof.
ARTICLE 8
TERMS OF SELLER'S LIABILITY
8.1 Scope of Seller's Liability. The Seller's representations and
warranties contained in Article 7 of the Agreement are the only
representations and warranties made by the Seller to the Buyer in
relation to execution and performance of this Agreement. For avoidance
of doubt the Parties agree that the Buyer will not relay on any
representations and warranties, expressed or implied, made by or on
behalf of the Seller, other than the representations and warranties
made by the Seller in this Agreement.
8.2 Exclusion of Liability. The Seller shall not be liable for breach of
Seller's representations and warranties, if the Buyer's indemnity
claim:
8.2.1 would not have existed in full or in part but for actions or
omissions by the Company after the Closing Date, however not
earlier than after Buyer's effective assumption of control
over the Company's Management Board (for the purposes of this
clause effective assumption of control over the Company's
Management Board shall mean the appointment of such a number
of Buyer's representatives to the Company's Management Board
which will ensure it majority on the Management Board), or
after the date on which such appointment would have been
possible, but was not made due to circumstances for which the
Buyer is liable; or
8.2.2 would not have existed in full or in part but for actions or
omissions by the Company after the Execution Date, due to
actions taken by the Seller or the Seller's Representative in
relation to Seller's due performance of the obligations
defined in Article 4 of the Agreement;
8.2.3 would not have existed in full or in part but for actions or
omissions of the Buyer or the Buyer's Representative after the
Execution Date; or
8.2.4 results from any event which has been previously presented to
the Buyer by the Seller, any of its advisors or the Company,
or an event of which the Buyer is aware in relation to its own
due diligence of the Company made prior to the Execution Date.
36
8.3 Term of Liability. Except for any indemnity claims due to breach of
representations and warranties referred to in Article 7.1.6, 7.1.8
first sentence and Article 7.1.13, the Seller shall not be liable for
any claims for breach of any Seller's representations and warranties
provided in the Agreement after 24 (twenty four) months from the
Closing Date.
ARTICLE 9
VALIDITY, RIGHT TO WITHDRAW
9.1 Failure to Satisfy Conditions to Purchase. Unless the Parties provide
otherwise, in the event of failure to satisfy any of the Conditions to
Purchase referred to in Article 3.1 by December 15, 2003 due to
circumstances for which none of the Parties is liable, this Agreement
shall be terminated and the Parties shall have no claims against each
other resulting from termination of the Agreement. Furthermore, between
the Execution Date and December 15, 2003, the Buyer shall, within seven
(7) days from the date of becoming aware of occurrence of a Material
Adverse Change, have the right to withdraw from the Agreement without
designating any grace period (Buyer's representation on withdrawal due
to occurrence of a Material Adverse Change should be made in writing
with signatures of the Buyer's representatives certified by a notary).
In the event of such termination this Agreement shall be terminated and
the Parties shall have no claims against each other in this respect.
9.2 Failure to Satisfy Conditions Due to Action or Omission by the Parties.
Failure to Perform Obligations. If (i) any of the Conditions to
Purchase referred to in Article 3.1 are not satisfied due to
circumstances for which the Buyer is liable or (ii) any of the
Conditions to Purchase referred to in Article 3.1 are not satisfied due
to circumstances for which the Seller is liable or (iii) in the event
of non-performance or improper performance of the Buyer's obligations
referred to in Article 2.7.2 through the end of 2.7.8; (iv) in the
event of non-performance or improper performance of the Seller's
obligations referred to in Article 2.8.2 through the end of 2.8.9
("BREACH OF AGREEMENT") - the other Party may withdraw from the
Agreement without designating any grace period and demand from the
Party Breaching the Agreement payment of an amount equal to the Escrow
Amount. If it is the Seller who is the withdrawing Party, it may demand
to be paid the Escrow Amount from the Escrow Account. If it is the
Buyer who is the withdrawing Party, it may demand payment in its favor
of an amount equal to the Escrow Amount and demand release of the
Seller's promissory note from the Deposit, such promissory note
securing payment of the above amount. The contractual right of
withdrawal referred to in this Article may be exercised on or before
December 15, 2003.
9.2.1 The Seller shall have the right to withdraw from the Agreement
and demand payment of the Escrow Amount also in the following
circumstances:
(a) Buyer's failure to notify, within seven (7) days of
the Execution Date, of the intention to effect
concentration in accordance with the requirements of
the Protection of Competition and Consumers Act of
December 15, 2000 (Dz.U. 2000, No. 122, item 1319, as
amended); or
37
(b) Buyer's failure to file, within fourteen (14) days of
the Execution Date, an application to the Minister of
Internal Affairs and Administration for a permit for
the Buyer to purchase the Shares in accordance with
the requirements of the Acquisition of Real Estate by
Foreigners Act of March 24, 1920 (Dz.U. 1996, No. 54,
item 245, as amended), unless the failure to file the
motion results from circumstances for which are
beyond the Buyer's control.
9.2.2 For avoidance of doubt, the Parties jointly represent that the
following shall not be considered failure to satisfy
Conditions to Purchase due to circumstances for which a given
Party is liable:
(a) issuance by the UOKiK President of a decision
prohibiting concentration or a conditional consent
for concentration consisting of Buyer's purchase of
the Shares, unless such decision, or a conditional
decision was issued in result of circumstances for
which the relevant Party is liable; or
(b) issuance by the Minister of Internal Affairs and
Administration of a decision denying consent for
Buyer's purchase, on the basis of the Acquisition of
Real Properties by Foreigners Act of March 24, 1920,
unless such decision was issued in result of
circumstances for which the relevant Party is liable;
or
(c) failure to perform the BRE Bank obligations referred
to in the BRE Bank Agreement; or
(d) occurrence of a Material Adverse Change; or
(e) failure to satisfy any of the Conditions to Purchase
defined in Article 3.1 due to one Party's failure to
perform its obligations if performance thereof is
directly conditional upon prior performance of
obligations by the other Party and such obligation
has not been performed.
9.3 Contractual Penalty due to Buyer's Delay. If the Buyer fails to pay the
Escrow Amount to the Escrow Account within three (3) business days from
the Date of Execution of this Agreement, however not earlier than
within three (3) business days from the date of execution of the Escrow
Agreement, the Seller shall be authorized to demand that the Buyer pays
a contractual penalty of PLN 10,000,000 (ten million).
ARTICLE 10
CONFIDENTIALITY
10.1 Confidential Information. The Parties mutually agree to treat as
confidential: (i) any and all information and documents held by a given
Party, its employees, representatives and advisors and relating to the
entities of the Company Group, and (ii) the information relating to
this Agreement (jointly referred to as ,,CONFIDENTIAL INFORMATION").
The Confidential Information shall include in particular any data,
materials, technical and financial documentation and any documentation
related to
38
conducted operations, all the ideas, inventions, trade secrets,
designs, business plans and other written or oral information relating
to the entities of the Company Group, including those relating to the
principles of pricing and sales, products, clients and suppliers of the
entities of the Company Group.
10.2 Disclosure of Confidential Information. The Parties agree that without
the prior written consent of the other Party (i) they shall not copy,
disseminate or disclose any Confidential Information to any persons
other than the members of the Parties' authorities, their employees,
advisors, banks and representatives which must have such information
for the purposes of reviewing, evaluating or conducting negotiations in
relation to the transaction to be entered between the Parties; (ii)
they will not use the Confidential Information for any purposes other
than provided under this Agreement.
10.3 Breach of Confidentiality Obligation. Should the terms of this Article
be breached by any of the Parties, the Party in breach shall be
obligated to pay to the other Party, a contractual penalty of PLN
500,000 (five hundred thousand) for any such event with no obligation
to prove that in result of such breach it did incur damage.
10.4 Exclusions. The obligations relating to observing confidentiality as
provided in the Agreement do not apply:
10.4.1 if application thereof would result in the inability of the
Parties or their dominating entities of subsidiaries to
disclose information required by applicable laws or by a
court, an administrative authority or a stock exchange, and in
particular in relation to the duty to disclose all the
material events having the influence on legal and financial
position, which the given Party, its dominating entity or
subsidiary is obliged to disclose by operation of law or
should disclose because of standard practice on any specific
securities market ensuring transparency of the operations of
the Party, its dominating entity or subsidiary as a public
company;
10.4.2 with regards to publicly available information or information
which were made public otherwise than in violation of the
terms and conditions hereof.
10.5 New Undertakings. Should the Buyer commence any new market ventures
competitive to the operations of the entities of the Company Group,
conducted with due observance of fair competition, it shall not be
considered as breach of the confidentiality clause contained in the
Agreement. Except for (i) information which is generally accessible or
disclosed to the public otherwise than in result of breach of this
Agreement; (ii) other information which is not subject to
confidentiality restrictions applying to the enterprise and protected
by laws in force or (iii) information disclosed on the basis of Article
10.4.1; if the Closing does not occur, the Buyer covenants to:
10.5.1 destroy all Confidential Information in possession of the
Buyer or its representatives and advisors, fixed on any
tangible or intangible media, including those in the form of
electronic entries, compilations of documents, correspondence,
notes, etc.; and
39
10.5.2 refrain from using and procure that the Buyer's subsidiaries
and affiliates (as defined in the Commercial Companies Code)
will refrain from using any of the Confidential Information in
any activities competitive to the Seller or the Company.
10.6 Term. The above obligation to maintain confidentiality shall be biding
to:
10.6.1 the Buyer, with respect to Confidential Information defined in
Article 10.1, subsection (i) until the Closing Date only;
10.6.2 the Seller, with respect to Confidential Information defined
in Article 10.1, subsection (i) for a period of 5 (five) years
from the Execution Date;
10.6.3 the Parties with respect to Confidential Information referred
to in Article 10.1, subsection (ii) for the period of three
(3) years from the Execution Date.
ARTICLE 11
FINAL PROVISIONS
11.1 Notices.
11.1.1 Any and all notices, documents, information and other
correspondence made in relation to this Agreement must be in
writing (otherwise being null and void), in two language
versions, English and Polish, and shall be deemed as properly
served if delivered by hand, by courier or by registered
letter, return receipt requested, to the following addresses
for delivery:
To the Seller:
Impexmetal S.A.
▇▇. ▇ ▇▇▇▇ ▇/▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Tel.: ▇▇▇ (▇▇) ▇▇▇ ▇▇ ▇▇
Fax: ▇▇▇ (▇▇) ▇▇▇ ▇▇▇ ▇▇▇
e-mail: ▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Att.: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
To the Buyer:
Commercial Metals (International) AG
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Tel.: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
e-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Att.: ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Auf der Maur, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
11.1.2 Each of the Parties covenants further to immediately advise
the Parties of any change of address, otherwise correspondence
sent to such Party to the last known address shall be deemed
as effectively delivered.
11.1.3 Furthermore, each of the Parties covenants, respectively:
40
(a) the Seller, to deliver copies of all notices,
documents and correspondence related to this
Agreement which will be addressed to the Buyer, also
for the attention of ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇ to:
Weil, Gotshal & ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ Sp.k., ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇. The Parties jointly
represent that deliveries of notices, documents and
other correspondence to the Buyer shall have legal
effects as of the date of such delivery to the Buyer,
and delivery to Weil, Gotshal & ▇▇▇▇▇▇ - ▇▇▇▇▇
▇▇▇▇▇▇ Sp.k. as referred to in this Article, shall be
for information purposes only;
(b) the Buyer, to deliver copies of all notices,
documents and correspondence related to this
Agreement which will be addressed to the Seller, also
for the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇,
to: BRE Corporate Finance S.A., ▇▇. ▇▇▇▇▇▇▇ ▇▇/▇▇,
▇▇-▇▇▇ ▇▇▇▇▇▇. The Parties jointly represent that
deliveries of notices, documents and other
correspondence to the Seller shall have legal effects
as of the date of such delivery to the Seller, and
delivery to BRE Corporate Finance S.A as referred to
in this Article, shall be for information purposes
only.
11.2 Settlement of Disputes. Any and all disputes resulting from the
Agreement or related to execution thereof shall be settled amicably
through direct negotiations of the Parties within thirty (30) days from
the date on which the Company advised the other Party of the intention
to settle the dispute amicably. If no amicable solution is reached
within the time specified above, the dispute shall be settled by the
Court of Arbitration at the Polish Chamber of Commerce in Warsaw in
accordance with the Rules of such Court valid on the date of the
Parties' request for such Court to settle the dispute.
11.3 Assignment of Rights and Duties.
11.3.1 None of the Parties shall not be authorized to transfer any of
its rights or duties resulting from this Agreement without the
written consent of the other Party, otherwise being null and
void.
11.3.2 If effective assignment of rights and obligations referred to
in Article 11.3.1 above requires execution of any legal or
factual actions, the Parties, following consenting to such
assignment, hereby covenant to execute the required actions on
as soon as possible basis. Furthermore, in case of execution
of any such assignment the Party which assigned its rights and
obligations under this Agreement shall remain jointly and
severally liable for proper performance of this Agreement with
the entity in favor of which such assignment was made.
11.4 Governing Law. This Agreement shall be governed by Polish law.
11.5 Costs. Unless otherwise provided by this Agreement, each of the Parties
will cover its own costs and expenses related to execution and
performance of this Agreement.
41
11.5.1 The fee of the Notary referred to in Article 5 shall be paid
by the Parties in equal parts.
11.5.2 To avoid any doubt, the Seller represents that it none of the
entities of the Company Group was or will be charged for any
costs or expenses related to the preparation, negotiation,
execution or performance of this Agreement or any other
agreements referred to herein which are to be performance by
the Seller. In particular, it applies to the costs of advice
provided by BRE Corporate Finance S.A. with its registered
seat in Warsaw, the law office Biuro Adwokackie BMK with its
registered seat in Lodz and other advisors or consultants
retained by the Seller in relation to the preparation of the
tender procedure for the sale of the Shares. This
representation does not apply to costs and expenses incurred
by the Company within the scope in which it was necessary in
relation to allow the due diligence of the Company by the
Buyer and other entities participating in the tender procedure
relating to the sale of Company Shares, organized by BRE
Corporate Finance S.A. with its registered seat in Warsaw, as
well as costs and expenses incurred by the Company in relation
to the preparation and delivery of information and documents
on behalf of the Seller and its advisors, in relation to such
procedure.
11.5.3 The Parties jointly represent that the transfer tax due with
respect to purchase of the Shares by the Buyer shall be borne
by the Buyer.
11.6 Entire Agreement. This Agreement and the schedules thereto constitute
the entire understanding between the Parties and they supersede all
prior agreements and understandings between the Parties with regards
thereto, unless otherwise provided by the Agreement. Should any of the
clauses of the Agreement become invalid or unenforceable, it shall not
influence the validity and enforceability of the other clauses. Should
any of the clauses of the Agreement be found invalid the other clauses
of the Agreement shall remain valid and effective, unless the
circumstances indicate that without such invalid clauses the Agreement
would not have been made. Furthermore, the Parties jointly agree that
if due to circumstances for which none of the Parties is liable, any of
the transactions contemplated by this Agreement become ineffective or
invalid, the Parties will take all reasonable action to repeat such
action.
11.7 Amendments. Any and all amendments to the Agreement must be in writing,
otherwise being null and void.
11.8 Counterparts. The Agreement was signed in four (4) counterparts: (i)
two in Polish and (ii) two in English, one language copy for each of
the parties. In case of any discrepancies between the Polish and
English version, the Polish version shall prevail.
42
For the Seller: For the Buyer:
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------- -----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ Ruedi Auf der Maur
--------------------- ----------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ruedi Auf der Maur
LIST OF SCHEDULES:
Schedule No. 1 - List of Shares which are being sold by the Seller.;
Schedule No. 2 - Extract form the Register of Commercial Registers
Office of the the Zug Canton relating to the Buyer;
Schedule No. 3 - Form of Representation with Instructions Relating to
the First Part of the Purchase Price;
Schedule No. 4 - Form of Waiver Notice of BRE Bank's Security Interest;
Schedule No. 5 - Form of Waiver of PKO BP's Security Interest;
Schedule No. 6 - Form of Waiver of the WFOS's Security Interest;
Schedule No. 7 - Copy of the Agreement with BRE Bank;
Schedule No. 8 - Extract form the Register of Entrepreneurs of the
National Court Register relating to the Company;
Schedule No. 9 - Extract form the Register of Entrepreneurs of the
National Court Register relating to the Seller;
Schedule No. 10 - Company's Statute with all amendments;
Schedule No. 11 - Form of Deposit Agreement;
Schedule No. 12 - Form of Escrow Agreement;
Schedule No. 13 - Copies of the Cooperation Agreements (including
know-how agreement);
Schedule No. 14 - Form of the Notification of Settlement;
Schedule No. 15 - Form of the Notification of the Settlement of the
Cooperation Agreements;
Schedule No. 16 - Form of the Seller's surety (Poreczenie) for the
repayment of the Impex Debt Value or the Buyer's surety
for the repayment of the HZ Debt Value, respectively;
Schedule No. 17 - Form of surety (Poreczenie) of the Company's repayment
of the Settlement Amount of the Cooperation Agreements;
Schedule No. 18 - Form of the Seller's consent for the Buyer to apply to
the relevant tax office for a certificate stating the
Seller's outstanding tax liabilities pursuant to
Article 306G of the Tax Ordinance;
Schedule No. 19 - Form of the Seller's consent for the Buyer to apply to
the relevant social insurance office (ZUS) for a
certificate stating the Seller's outstanding
liabilities with respect to social insurance premiums,
health insurance premiums and other premiums, payables
and public dues which ZUS is authorized to collect;
Schedule No. 20 - List of capital expenditures;
43
Schedule No. 21 - Additional rights which may be granted to Company's key
employees (excluded from restrictions resulting from
Article 4.1.15 of the Agreement);
Schedule No. 22 - Form of the termination of the Cooperation Agreements;
Schedule No. 23 - Form of Supervisory Board resolutions;
Schedule No. 24 - Form of resignation of the Company Supervisory Board
Member;
Schedule No. 25 - Copies of agreements between the entities of the
Company Group and the Seller and entities of the
Seller's Group which were binding on May 31, 2003;
Schedule No. 26 - Representation of the Company containing the list of
Company's real properties;
Schedule No. 27 - List of encumbrances on the Shares;
Schedule No. 28 - list of shareholders' meetings resolutions.
44