Minister of Treasury, ul. Krucza 36/Wspólna 6, postal code: 00-522 Warszawa, acting on behalf of the State Treasury, pursuant to Article 31a, and in relation to Article 33 (1)(5) of the Act of 30 August 1996 on Commercialisation and Privatisation (Journal of Laws of 2002, No. 171, item 1397, as amended), hereinafter referred to as the “Act”, and pursuant to the Resolution of the Council of Ministers of 17 February 2009 on detailed procedure of disposal of State Treasury-owned shares (Journal of Laws No. 34, item 264) hereinafter extends an invitation to auction to all interested parties regarding the purchase of:

The reserve price for the block of 18,700 shares is PLN 16,960,900.00 (say: sixteen million nine hundred sixty thousand and nine hundred Polish zlotys). The reserve price per share is PLN 907.00.

Minimum bidding increment value for the entire block of 18,700 shares is determined as PLN 85,000.00 (say: eighty-five thousand Polish zlotys).
 

If none of the potential investors increments the bid, then the highest bid will be called in 1‑minute intervals.

The Bidder who offers the highest price shall be obliged to purchase the shares which have not been taken by the eligible employees free of charge, as provided for by the Act, pursuant to the terms and conditions stipulated in the Share Purchase Agreement attached hereto.

The object of the Company is the provision of services in the area of developing comprehensive design documentation/ Bills of Quantity for the construction, extension and upgrading industrial, residential and general construction structures, also as a project management company as well as letting of own property. The value of the Company is increased by joint perpetual usufruct to land and joint (64.03%) ownership of the office building located at 12 Aleja Piłsudskiego in Łódź.
 

The Shares Purchase Agreement shall be concluded with the Bidder who offers the highest price, within 5 working days from the date of payment of the total amount equal to the share purchase price reduced by the amount of security paid by bank transfer to the MST account no. 03 1010 1010 0025 1213 3920 0000 kept by the National Bank of Poland, Regional Branch in Warsaw.
 

The payment shall be made in full within 10 working days from the date the highest bidder is announced.

In the case where the purchase of shares requires:

1.        a decision of the President of the Office of Competition and Consumer Protection on no objections to the intention of entrepreneurs to merge;

2.        an acceptance of the minister responsible for internal affairs

- the payment shall be made in full within 5 working days from the day of submitting the above mentioned decisions to the Minister of Treasury.

The Share Purchase Agreement will be concluded after the payment of the price is confirmed by the organizational unit of the Ministry of Treasury responsible for budget and finance.

The Share Purchase Agreement will be executed in the seat of the Ministry of Treasury, ul. Krucza 36/Wspólna 6, 00-522 Warsaw.

The adjudication to the highest bidder shall occur at the moment of signing the Share Purchase Agreement.

Bid Security in the amount of PLN 1,696,090.00 (say: one million six hundred ninety-six thousand and ninety Polish zlotys) which accounts for 10 % of the reserve price, shall be deposited via bank transfer to the account of the Ministry of Treasury no. 13 1130 1017 0019 9426 2520 0007 at Bank Gospodarstwa Krajowego, First Office in Warsaw until 26 October 2009.

Bid Security shall not be returned in the event that the highest bidder refuses to conclude the agreement or resigns from participating in the auction after the deadline for responses.
 

The reserve price for the block of 867,000 shares is PLN 30,483,720.00 (say: thirty million four hundred eighty three thousand and seven hundred twenty Polish zlotys). The reserve price per share is PLN 35.16.

Minimum bidding increment value for the entire block of 867,000 shares is determined as PLN 250,000.00 (say: two hundred fifty thousand Polish zlotys).
 

If none of the potential investors increments the bid, then the highest bid will be called in 1‑minute intervals.

The Bidder who offers the highest price shall be obliged to purchase the shares which have not been taken by the eligible employees free of charge, as provided for by the Act, pursuant to the terms and conditions stipulated in the Share Purchase Agreement attached hereto.

The Company is a mining and manufacturing entity involved in dolomite mining and production.
 

The Shares Purchase Agreement shall be concluded with the Bidder who offers the highest price, within 5 working days from the date of payment of the total amount equal to the share purchase price reduced by the amount of security paid by bank transfer to the MST account no. 03 1010 1010 0025 1213 3920 0000 kept by the National Bank of Poland, Regional Branch in Warsaw.
 

The payment shall be made in full within 10 working days from the date the highest bidder is announced.
 

In the case where the purchase of shares requires:

1.      an acceptance of the President of the Office of Competition and Consumer Protection on no objections to the intention of entrepreneurs to merge;

2.      an acceptance of the minister responsible for internal affairs

- the payment shall be made in full within 5 working days from the day of submitting the above mentioned decisions to the Minister of Treasury.

The Share Purchase Agreement will be concluded after the payment of the price is confirmed by the organizational unit of the Ministry of Treasury responsible for budget and finance.

 

The Share Purchase Agreement will be executed in the seat of the Ministry of Treasury, ul. Krucza 36/Wspólna 6, 00-522 Warsaw.

The adjudication to the highest bidder shall occur at the moment of signing the Share Purchase Agreement.
 

Bid Security in the amount of PLN 3,048,372.00 (say: three million forty-eight thousand three hundred and seventy two Polish zlotys) which accounts for 10 % of the reserve price, shall be deposited via bank transfer to the account of the Ministry of Treasury no. 13 1130 1017 0019 9426 2520 0007 at Bank Gospodarstwa Krajowego, First Office in Warsaw until 26 October 2009.

Bid Security shall not be returned in the event that the highest bidder refuses to conclude the agreement or resigns from participating in the auction after the deadline for responses.

 

Entities interested in purchasing shares of any of the Companies through public auction, may purchase a “Company’s Information Memorandum”. The interested Parties should:

·          submit a transcript from the Register of Entrepreneurs of the National Court Register/Certificate of entry in the Register of Business Activity specifying the current representation of the entity (with the date of issue not earlier than three months prior to the document presentation date) and where the individual interested in the auction is a non-entrepreneur natural person – an ID card,

·          have a document entitled “Confidentiality Statement” signed by duly authorised representatives of the interested entities.

“Company’s Information Memorandum” contains information on its legal, economic and financial situation. The purchase price for “Company’s Information Memorandum” is PLN 100.00 and is payable at Cashier’s Office, room 372, General Accounting and Reporting Division of MST Department of Budget and Finance between 12:00 PM and 02:00 PM or to the MST account no. 83113010170019942625200008 kept in Bank Gospodarstwa Krajowego, First Office in Warsaw.

For the avoidance of doubt, the Minister of Treasury represents that the “Company’s Information Memorandum” is issued individually for each Company after the “Confidentiality Statement” is signed by each Company separately, and that the privatization process shall be carried out individually for each Company.

 

Persons responsible for making the above documentation available are:

-   Ms. Irena Walczak, room 727, phone (022) 695 81 50 for company „BIPROWŁÓK” Sp. z o. o. with registered office in Łódź,

-         Mr. Tomasz Cajzner, room 727, phone (022) 695 81 56 for company Kopalnia i Prażalnia Dolomitu „Żelatowa” S.A. with registered office in Chrzanów and company „BIPROWŁÓK” Sp. z o. o. with registered office in Łódź.

Entities interested in purchasing shares of Kopalnia i Prażalnia Dolomitu „Żelatowa” S.A. with registered office in Chrzanów, may be awarded right to perform a due diligence with respect to the Company and its business undertakings. In order to do so, the entity should:

·        submit by 12 October 2009 a due diligence motion to the Privatization Projects Department at the Ministry of Treasury (room 739, fax no. (22) 695 88 18) along with information from a bank or a co-operative savings and credit union, where the entity’s account is held, showing that the entity has financial resources in the amount equal to Bid Security or that the entity maintains credit capacity at least equal the amount of Bid Security. This information should be issued after 30 June 2009.

·        sign a document entitled “Confidentiality Statement”.

The Minister of Treasury can award the right to perform due diligence with respect to the Company and its business undertakings to an entity which submitted all necessary documents after 12 October 2009.

Replies to the invitation to participate in an auction should be drawn up in Polish and contain:

1.      full name and address or business name (for a company) and registered office of the entity interested in participating in the auction;

2.      address for correspondence;

3.      a confirmation of security payment with indication of a bank account to which the security should be returned;

4.      in the event where the entity interested in participating in an auction is a natural person:

a.       a photocopy of an ID card, confirmed to be a true copy of the original ID card by a notary public;

b.      in the case of a natural person – entrepreneur, a valid certificate of entry in the Economic Activity Records, if separate provisions of law require the entity to be entered in the Economic Activity Records, submitted in original, transcript or a copy confirmed to be a true copy of the original by a notary public;

c.       information on the method of financing the purchase of shares;

5.        in the event where the entity interested in participating in an auction is a legal person:

a.       a valid transcript from the relevant register;

b.      particulars of person(s) authorised to participate in the auction along with the power of attorney;

c.       particulars of person(s) authorised to represent the entity for the purpose of agreement conclusion in case such person is another person than specified in sub-item 1, along with the power of attorney, drawn up in the form required to carry out the transaction;

d.      information on the method of financing the purchase of shares;

6.      statement that the entity interested in participating in the auction:

a.       is not in arrears in tax payment, or a statement that it has obtained an exemption, deferment, or an allowance to pay outstanding payments by instalments, or a complete suspension to enforce a decision of a competent authority, as provided for in law;

b.      is not in arrears in the payment of social security, or health insurance charges or contributions, or a statement that it has obtained an exemption, deferment, or an allowance to pay outstanding payments by instalments, or a complete suspension to enforce a decision of a competent authority as provided for in law;

c.       has fulfilled previous privatisation contracts, and is not a party to the relevant litigations;

d.      has fulfilled other contracts made with the State Treasury and is not a party to the relevant litigation;

e.       is neither a subject of a liquidation proceedings, nor declared bankrupt, except for entities which following a bankruptcy have concluded arrangements with creditors confirmed by a final court decision unless such arrangement provides for liquidation of assets of the bankrupt;

f.        is not entered in the register of insolvent debtors;

g.       is not registered as unreliable debtor by the Loan Information Office.

In the event where the entity interested in participating in an auction is a foreign entity, submitted documents made in a foreign language shall be translated into the Polish language by a sworn translator. Documents including a transcript from the relevant register, a power of attorney to act on behalf of the entity interested in participating in the auction should be certified by a Consulate/the Embassy of the Republic of Poland in the country where the entity responding to the invitation has its registered office, unless otherwise required by law.

Responses to the invitation to auction should be submitted in one copy in sealed envelopes to the Ministry of State Treasury, 00-522 Warsaw, ul. Krucza 36/Wspólna 6, to the front office of the Ministry of Treasury, or the front office of the Department of State Real Property and Minority Stakes, room no. 447, on business days, in business hours i.e. between 8:15 AM and 4:15 PM, until 26 October 2009.

A respective inscription should be placed on the envelope:

 

A Response to the invitation to auction shall not be accepted if not submitted before the above stipulated deadline and without the above respective inscription.

Invitation to participate in the auction as well as auction conditions may be altered or cancelled by the Minister of Treasury.

..........................................................................................................................................................

The Purchase Agreement has the following contents:

 

 

 

concluded on .........., in Warsaw (hereinafter referred to as the “Agreement”),

by and between:

State Treasury of the Republic of Poland represented by the minister competent to handle State Treasury matters, Mr. ..............................., hereinafter referred to as the “Seller”

and

...................................... ...................................... (company / name of the buyer) with the registered office in........................., at .....................(address), entered into the Register of Entrepreneurs kept by the District Court for ............................. in ..........................., ...... Commercial Division of the National Court Register under KRS no. ........................., represented by ...................................., authorised to represent the Buyer in accordance with the enclosed transcript from the register (or power of attorney drawn up in due form in the event that the persons entitled to represent the Buyer have authorised another person/other persons to act on their behalf by means of a power of attorney), constituting Appendix 1 hereto, hereinafter referred to as the “Buyer”.

 

(where the buyer is a natural person)

.......................................................................................................... (names and surname), with the place of residence in .................................. at.............................., holder of the ID card of series ....... no. ............................ (in the event that the natural person is engaged in economic activity, the entry in the economic activity records under number ................. kept by ............................................, in accordance with the certificate of entry in the economic activity records, constituting Appendix 1 hereto), hereinafter referred to as the “Buyer”.

 

The Seller and the Buyer are hereinafter jointly referred to as the “Parties” or separately as the “Party”.

 

Whereas:

1.      The Seller owns 22,000 (say: twenty two thousand) shares with nominal value of PLN 50.00 (say: fifty Polish zlotys) each, constituting 100 % of the share capital of the company operating under the business name of “BIPROWŁÓK” Spółka z ograniczoną odpowiedzialnością with registered office in Łódź, entered in the Register of Entrepreneurs kept by the District Court for Łódź-Śródmieście in Łódź, 20th Commercial Division of the National Court Register under KRS no. 0000286937, hereinafter referred to as the “Company”, with the reservation that 3,300 (say: three thousand and three hundred) shares with nominal value of PLN 50.00 (say: fifty Polish zlotys) each, constituting up to 15% of the share capital of the Company will be made available free of charge to the eligible employees of the Company. Company’s transcript from the Register of Entrepreneurs constitutes Appendix 2 hereto;

2.      The Seller represents that the shares to be disposed of are free of any restrictions on sale or other encumbrances and are not subject to any third party claims.

3.      The Buyer has placed the highest bid during auction no. .................., regarding the sale of 18,700 (say: eighteen thousand and seven hundred) shares, constituting 85% of the share capital owned by the State Treasury in the company operating under the business name of “BIPROWŁÓK” Spółka z ograniczoną odpowiedzialnością with registered office in Łódź, hereinafter referred to as the “Shares”, carried out in accordance with the applicable laws.

The Parties have mutually agreed as follows:

2.      Purchase price per Share shall be PLN .... (say:.........), hereinafter referred to as “Share Unit Price”.

3.      Total share purchase price shall be PLN ................................................................. (say:.......................................................) and it shall be the product of the Share Unit Price multiplied by the number of Shares purchased by the Buyer.

1.      The Seller confirms that the Buyer has paid the amount specified in § 1 (3) of this Agreement, reduced by the security in the amount of PLN 1,696,090.00 (say: one million six hundred ninety-six thousand and ninety Polish zlotys) paid by means of the bank transfer to the account of the Ministry of Treasury No. 03 10101010 0025 1213 3920 0000 kept by the National Bank of Poland, Regional Branch in Warsaw.

2.      The Seller hereby confirms that it has received the amount that constitutes the total share purchase price.

1.      The Shares shall be transferred to the Buyer at the moment of conclusion of this Agreement. All rights and obligations arising from obtaining the Shares shall be assigned and delegated to the Buyer.

2.      Upon conclusion of this Agreement, the Buyer shall be obliged to notify the Company’s Management Board immediately in writing of conclusion of this Agreement and the transfer of Shares as well as to submit the application to make the relevant entry in the Company’s Shareholders’ Register.

 

1.      The Buyer represents that the conclusion hereof by the Buyer is neither in breach of Polish Law, nor provisions of any licence, permission, or exemption issued by public administration authorities of the Republic of Poland.

2.      The Buyer did not rely on express or implied statements or assurances, made or given by the Seller, or on his behalf.

3.      The Buyer declares to be fully knowledgeable of the legal, financial and economic situation of the Company, and the decision to buy the Shares was only made on the basis of knowledge acquired about the Company. Therefore the Seller waives and undertakes to make no claim whatsoever against the Seller, which may arise in relation to a non-disclosure of relevant information concerning the legal, financial and economic situation of the Company.

4.      The Buyer undertakes to purchase the shares not taken by the eligible employees under the process of free of charge acquisition (hereinafter referred to as: the “Remaining Shares”) immediately following the expiry of the right to acquire free of charge, within 60 days of them being offered by the Seller.

5.      The purchase of the Remaining Shares shall be made for the amount equal to the product of the number of purchased Remaining Shares multiplied by the Share Unit Price, indexed on the basis of the weighted average of the base rate determined by the European Commission for each annual (12 monthly) period and published in the Official Journal of the European Union, increased by 100 base points i.e. by 1 percentage point calculated for the period from the first day of the month in which the Agreement was concluded until the last day of the month preceding the month in which the Remaining Shares will be purchased, with annual capitalisation (12 months), however not lower than the book value of a single Share as at the end of the Company’s financial year preceding the sale of the Remaining Shares.

1.      This Agreement shall be governed by the provisions of the Polish law.

2.      The costs of taxes and fees related to conclusion of this Agreement shall be borne by the Buyer.

3.      No amendment hereof shall be binding unless made in writing with notarially certified signatures.

4.      The Agreement has been made in the Polish language, in two identical counterparts, one for either party.

5.      All notifications and communication related to this Agreement shall be made in writing and submitted personally, by courier or registered mail upon confirmation of receipt, to the address of:

the Seller                                                                the Buyer

Ministry of Treasury                                              ........................

ul. Krucza 36 / Wspólna 6

00-522 Warszawa

 

6.      Each party shall inform the other Party in writing in case of the change of the address for notifications and communications related to this Agreement. In case of failure to do so, all notifications and communication sent to the previous address shall be deemed to have been served.

 

Signed by:

1.      Transcript of Buyer’s entry in the Register of Entrepreneurs of the National Court Register, or a certificate of entry in the economic activity records, and power of attorney (if applicable).

2.      Transcript of Company’s entry in the National Court Register.

.....................................................................................................................................................

 

The Purchase Agreement has the following contents:

Kopalnia i Prażalnia Dolomitu „Żelatowa” S.A.

with registered office inChrzanów

 

concluded on .........., in Warsaw, hereinafter referred to as the “Agreement”,

by and between:

State Treasury of the Republic of Poland represented by the minister competent to handle State Treasury matters, Mr. ..............................., hereinafter referred to as the “Seller”

and

...................................... ...................................... (company / name of the buyer) with the registered office in........................., at .....................(address), entered into the Register of Entrepreneurs kept by the District Court for ............................. in ..........................., ...... Commercial Division of the National Court Register under KRS no. ........................., represented by ...................................., authorised to represent the Buyer in accordance with the enclosed transcript from the register (or power of attorney drawn up in due form in the event that the persons entitled to represent the Buyer have authorised another person/other persons to act on their behalf by means of a power of attorney), constituting Appendix 1 hereto, hereinafter referred to as the “Buyer”.

 

(where the buyer is a natural person)

.......................................................................................................... (names and surname), with the place of residence in .................................. at.............................., holder of the ID card of series ....... no. ............................ (in the event that the natural person is engaged in economic activity, the entry in the economic activity records under number ................. kept by ............................................, in accordance with the certificate of entry in the economic activity records, constituting Appendix 1 hereto), hereinafter referred to as the “Buyer”.

 

The Seller and the Buyer are hereinafter jointly referred to as the “Parties” or separately as the “Party”.

 

Whereas:
 

The Parties have mutually agreed as follows:

2.      Purchase price per Share shall be PLN .... (say:.........), hereinafter referred to as “Share Unit Price”.

3.      Total share purchase price shall be PLN ................................................................. (say:.......................................................) and it shall be the product of the Share Unit Price multiplied by the number of Shares purchased by the Buyer.

1.      The Seller confirms that the Buyer has paid the amount specified in § 1 (3) of this Agreement, reduced by the security in the amount of PLN ....................(say:...............) paid by means of the bank transfer to the account of the Ministry of Treasury No. 03 10101010 0025 1213 3920 0000 kept by the National Bank of Poland, Regional Branch in Warsaw.

2.      The Seller hereby confirms that it has received the amount that constitutes the total share purchase price.

1.      The Shares shall be transferred to the Buyer at the moment of conclusion of this Agreement, by the Seller issuing multiple-share certificates to the Buyer and a statement of transfer of shares to the Buyer along with all rights and obligations arising from obtaining the Shares, which constitute Appendix 3 hereto.

2.      Upon conclusion of this Agreement, the Buyer shall be obliged to notify the Company’s Management Board immediately in writing of conclusion of this Agreement and the transfer of Shares as well as to submit the application to make the relevant entry in the Company’s Shareholders’ Register. 

1.      The Buyer represents that the conclusion hereof by the Buyer is neither in breach of Polish Law, nor provisions of any licence, permission, or exemption issued by public administration authorities of the Republic of Poland.

2.      The Buyer did not rely on express or implied statements or assurances, made or given by the Seller, or on his behalf.

3.      The Buyer declares to be fully knowledgeable of the legal, financial and economic situation of the Company, and the decision to buy the Shares was only made on the basis of knowledge acquired about the Company. Therefore the Seller waives and undertakes to make no claim whatsoever against the Seller, which may arise in relation to a non-disclosure of relevant information concerning the legal, financial and economic situation of the Company.

4.      The Buyer undertakes to purchase the shares not taken by the eligible employees under the process of free of charge acquisition (hereinafter referred to as: the “Remaining Shares”) immediately following the expiry of the right to acquire free of charge, within 60 days of them being offered by the Seller.

5.      The purchase of the Remaining Shares shall be made for the amount equal to the product of the number of purchased Remaining Shares multiplied by the Share Unit Price, indexed on the basis of the weighted average of the base rate determined by the European Commission for each annual (12 monthly) period and published in the Official Journal of the European Union, increased by 100 base points i.e. by 1 percentage point calculated for the period from the first day of the month in which the Agreement was concluded until the last day of the month preceding the month in which the Remaining Shares will be purchased, with annual capitalisation (12 months), however not lower than the book value of a single Share as at the end of the Company’s financial year preceding the sale of the Remaining Shares.

1.    This Agreement shall be governed by the provisions of the Polish law.

2.    The costs of taxes and fees related to conclusion of this Agreement shall be borne by the Buyer.

3.    No amendment hereof shall be binding unless made in writing with notarially certified signatures.

4.    The Agreement has been made in the Polish language, in two identical counterparts, one for either Party.

5.    All notifications and communication related to this Agreement shall be made in writing and submitted personally, by courier or registered mail upon confirmation of receipt, to the address of:

the Seller                                                                the Buyer

Ministry of Treasury                                              ........................

ul. Krucza 36 / Wspólna 6

00-522 Warszawa

 

6.      Each party shall inform the other Party in writing in case of the change of the address for notifications and communications related to this Agreement. In case of failure to do so, all notifications and communication sent to the previous address shall be deemed to have been served.

Signed by:

1.      Transcript of Buyer’s entry in the Register of Entrepreneurs of the National Court Register, or a certificate of entry in the economic activity records, and power of attorney (if applicable).

2.      Transcript of Company’s entry in the National Court Register.

3.      Seller’s statement about transfer of Shares.

 

Appendix 3

to Share Purchase Agreement

...........................................

 

 

I, the undersigned, acting pursuant to art. 339 of Commercial Companies Code hereby transfer 867,000 series A ordinary registered shares with numbers from 000000001 to 000867000 with nominal value of PLN 10.00 (say: ten Polish zlotys) each, constituting 85% of the share capital of the company operating under the business name of Kopalnia i Prażalnia Dolomitu „Żelatowa” S.A. with registered office in Chrzanów with all rights an obligations attached thereto to ………………………………………………………………………..