The Minister of Treasury, ul. Krucza 36/Wspólna 6, post code: 00-522 Warszawa, acting on behalf of the Treasury, pursuant to Article 31(a), in conjunction with Article 33(1)(5) of the Commercialisation and Privatisation Act of 30 August 1996 (Journal of Laws of 2002 No. 171 item 1397, as amended), hereinafter referred to as the “Act”, and the Resolution of the Council of Ministers of 17 February 2009 on the Detailed Procedure of Disposal of Treasury-owned Shares (Journal of Laws No. 34 item 264) extends to all interested parties an invitation to an auction for the purchase of 132,175 ordinary registered shares of series ”A”, with numbers from: 000000001 to 000155500, for one buyer, of a nominal value of PLN 10.00 each, constituting 85.00% of the share capital of the company Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A. with registered office in Żyrardów, ul. 1 Maja 65, 96-300 Żyrardów, hereinafter referred to as the “Company”.
 

The starting price for the stake of 132,175 shares is PLN 3,404,828.00 (say: three million four hundred and four thousand eight hundred and twenty-eight zloty).

The starting price for one share, rounded off, is PLN 25.76 (say: twenty five zloty and seventy six groszy).

The minimum bidding increment for the entire stake of 132,175 shares is PLN 35,000.00 (say: thirty five thousand zloty) .

In case no further bids are placed by the bidders during the auction, subsequent calls of the highest bid shall be made every three minutes.

The objects of the Company include:

-         scheduled passenger land transport;

-         non-scheduled passenger land transport (including the so called transport on-request, i.e. transport of employees to workplace, children to school, as well as national and international transport of tourists);

-         service and repair of motor vehicles;

-         letting of own or leased property;

-         technical research and analysis, advertising.
 

The Share Purchase Agreement will be concluded with the entity placing the highest bid during the auction within up to 5 working days from the date of payment of the full purchase price of the shares, reduced by the amount of the bid security paid by a bank transfer to the account of the Ministry of Treasury, account no. 03 1010 1010 0025 1213 3920 0000, maintained with Narodowy Bank Polski, Branch in Warsaw.

Payment must be made in full within 10 working days from the date of announcing the highest bidder.

In the case when the purchase of shares requires:

1)       the decision of the President of the Office of Competition and Consumer Protection (UOKiK) on the absence impediments to the intended merger of companies;

2)       the consent of the Minister of Internal Affairs

-         payment must 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 at the organisational unit of the Ministry of Treasury responsible for budget and finance after receipt of the full payment for the shares has been confirmed.
 

The Share Purchase Agreement will be concluded at the Ministry of Treasury, ul. Krucza 36/Wspólna 6, 00-522 Warszawa.

The auction shall be closed upon signing the Share Purchase Agreement for the Company’s shares.
 

The bid security of PLN 340,482.80 (say: three hundred and forty thousand four hundred and eighty-two zloty and eighty groszy), which corresponds to 10 % of the starting price of the stake of shares, shall be paid by bank transfer to the account of the Ministry of Treasury, account no. 13 1130 1017 0019 9426 2520 0007, maintained with Bank Gospodarstwa Krajowego S.A., Branch No. 1 in Warsaw, by 16 November 2009.

The bid security is non-refundable in the event that the highest bidder refuses to sign the Share Purchase Agreement or decides not to participate in the auction after application submission deadline.

The entities interested in the purchase of the Company’s shares during the publicly announced auction may purchase the document called the “Memorandum”.

To do so, the interested entity should:

·        approach the Ministry of Treasury, room 461, on a working day, from 26 October 2009 to 16 November 2009, between 12.00 noon and 2.00 PM,

·        produce a transcript from the Register of Entrepreneurs from the National Court Register / certificate of entry in the register of business activity, reflecting the current standing of the entity (issued not earlier than three months prior to the date of submission), and in the event that the interested party is a natural person who is not an entrepreneur – produce the ID card,

·        sign the “Confidentiality Obligation” document

 -       through the duly authorized representatives of the interested entities.
 

The “Memorandum” contains the information concerning the Company’s legal, financial and economic standing. The price for the Memorandum is PLN 100.00, and is payable at the cashier’s desk, room 372, Division of General Accountancy and Reporting of the Department of Budget and Finances of the Ministry of Treasury from 12.00 noon to 2.00 PM or to the account of the Ministry of Treasury no. 83 1130 1017 0019 9426 2520 0008, maintained in Bank Gospodarstwa Krajowego, Branch No. 1 in Warsaw.
 

To avoid all and any doubts, the Minister of Treasury represents that the “Memorandum” will be handed over upon signing of the “Confidentiality Obligation”.
 

The person responsible for providing access to the said documentation is:

-         Ms. Monika Białogrodzka, room 461, phone: (022) 695 83 46

Entities interested in the purchase of the Shares shall, upon appointment with the Ministry of Treasury, be authorized to inspect documents relating to the Company and its enterprise. To obtain the permission, entities shall file an application for inspection at the front office of the Department of Ownership Supervision and Privatisation I, room 447, fax: 0-22 629 80 97, at the Ministry of Treasury, 00-522 Warszawa, ul. Krucza 36/Wspólna 6. Deadline for submitting applications is 2 November 2009.
 

The Minister of Treasury shall have the right to authorise inspection of the documents relating to the Company and its enterprise by entities whose applications were filed after 2 November 2009.   

Applications for participation in the auction should be made in the Polish language and should contain:

1)      name, surname and address or name and registered office of the entity interested in participating in the auction;

2)      address for correspondence;

3)      attached evidence of payment of the bid security, along with an indication of the bank account to which the bid security should be refunded;

4)      If the entity interested in participating in the auction is a natural person:

a)      a photocopy of an identity document confirming the identity of such person, certified by a notary public to be a true copy of the original,

b)      if the natural person is engaged in a business activity – a valid certificate confirming entry in the Register of Business Activity, if separate provisions of law require the entity to be entered in the Register of Business Activity, submitted in original, as an extract or as a certified copy made by a notary public,

c)      information on the method of financing of the share purchase transaction;

5)      If the entity interested in participating in the auction is a legal person:

a)      a valid extract from the relevant register,

b)      details of the person(s) entitled to participate in the auction, along with a power of attorney,

c)      details of the person(s) entitled to represent the entity in signing the agreement, along with a duly executed power of attorney, in the event that the identity of the signee is different than the identity of the person specified in item 1,

d)      information on the method of financing of the share purchase transaction;

6)      declaration that the entity interested in participation in the auction:

a)     is not in default with payment of any taxes, or a declaration that the entity obtained, in accordance with the law, the required exemption, deferral, division of overdue amounts into instalments or a stay of execution (in full) of the decision of a relevant authority,

b)      is not in default with payment of fees or premiums for social or medical insurance, or a declaration that the entity obtained, in accordance with the law, the required exemption, deferral, division of overdue amounts into instalments or a stay of execution (in full) of the decision of a relevant authority,

c)      is not in breach of any other privatisation agreements and that the entity is not a party to any court disputes in this regard,

d)      is not in breach of any other agreements concluded with the Treasury, and that the entity is not a party to any court disputes in this regard,

e)     is not a subject of liquidation proceedings and that no bankruptcy was announced, apart from entities which upon announcement of bankruptcy made an arrangement approved under a valid court decision, provided that such arrangement does not provide for satisfaction of creditors by liquidation of the assets of the bankrupt entity,

f)       is not entered in the Register of Insolvent Debtors,

g)      is not registered in the Credit Information Bureau as an unreliable borrower.
 

In the event that the entity interested in participation in the auction is a foreign entity, the submitted documents in a foreign language must be translated into the Polish language by a sworn translator. Documents such as an extract from the relevant register, a power of attorney to act on behalf of the entity interested in participation in the auction should be certified by a Consulate/the Embassy of the Republic of Poland in the country where the entity interested in participation in the auction has its registered office, unless specified otherwise by applicable law provisions.
 

Applications for the auction must be submitted in one copy, in a sealed envelope, to the Ministry of Treasury, 00-522 Warszawa, 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 447, on business days, during office hours 8:15 AM – 4:15 PM, by 16 November 2009.

A respective inscription should be placed on the envelope:

“Application to participate in the auction for the purchase of shares of the company Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A. with registered office in Żyrardów – Do not open”

 

Applications to participate in the auction will not be accepted after the expiry of the stipulated date and/or if no inscriptions, as indicated above, have been placed on the envelopes.

The auction will commence on 20 November 2009 at 12.00 noon, room 116 at the Ministry of Treasury, ul. Krucza 36/Wspólna 6, Warsaw.

The invitation to participate in the auction and the terms and conditions of the auction are subject to change or withdrawal by the Minister of Treasury.

 

Share purchase agreement:

 

SHARE PURCHASE AGREEMENT

NO. MSP /.......................................................

 

CONCERNING THE PURCHASE OF SHARES OF

Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A.

with registered office in Żyrardów

 

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

by and between:

State Treasury of the Republic of Poland, represented by the Minister of Treasury, Mr. ..............................., hereinafter referred to as the “Seller”

and

where the buyer is a legal person *

...................................... (company/name of the buyer) with the registered office in ........................., at ul. ....................., ................................., 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 prepared in due form in the event that the person(s) is/are acting pursuant to the power of attorney granted by the persons authorised to represent the Buyer), 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 ul. .............................., holder of the ID card of series ....... no. ............................ (and in the event that the natural person is engaged in economic activity, the entry in the economic activity records under the 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 collectively referred to as the “Parties”, and each of them individually as a “Party”.

Whereas:

1.      The Seller owns 155,500 (say: one hundred and fifty five thousand five hundred) ordinary registered shares of series “A”, with numbers from: 000000001 to 000155500, with nominal value of PLN 10.00 (say: ten zloty) each, constituting 100% of the share capital of the company Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A. with registered office in Żyrardów, entered in the Register of Entrepreneurs kept by the District Court for the capital city of Warsaw, 14^th Commercial Division of the National Court Register under KRS No. 0000051992, hereinafter referred to as the “Company”. The Seller reserves the right to transfer, free of charge, to eligible employees of the Company, 23,325 (say: twenty three thousand three hundred and twenty-five) Shares with nominal value of PLN 10 (say: ten zloty) each, constituting up to 15% of the Company’s share capital. 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 the auction no. ..., regarding the sale of 132,175 (say: one hundred and thirty two thousand one hundred and seventy-five) ordinary registered shares of series “A” with numbers from: 000000001 to 000155500, constituting 85% of the share capital owned by the Treasury in the Company Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A. with registered office in Żyrardów, hereinafter referred to as the “Shares”, carried out in accordance with the applicable laws;

 

The Parties have mutually agreed as follows:

§ 1

1.      The Seller sells, and the Buyer buys the Shares.

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

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

§ 2

1.      The Seller confirms that the Buyer has paid the amount specified in § 1 (3) of the Agreement, reduced by the security in the amount of PLN 340,482.80 (say: three hundred and forty thousand four hundred and eighty-two zloty and eighty groszy), paid by means of the bank transfer to the account of the Ministry of Treasury no. 03 1010 1010 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.

§ 3

1.      The shares shall be transferred by the Seller to the Buyer on the day of conclusion of this Agreement, by handing over of multiple-share certificates to the Buyer by the Seller along with the Seller’s representation concerning the transfer of shares to the Buyer (constituting Appendix 3 hereto) along with all rights and obligations arising therefrom.

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 to the Buyer as well as to submit the application that a relevant entry be made in the Company’s Shareholders’ Register.

§ 4

1.     The Buyer represents that the conclusion of this Agreement by the Buyer does not violate the provisions of the Polish law nor does it violate any provisions of any permit, authorisation or exemption issued by public administration bodies of the Republic of Poland.

2.     The Buyer did not rely on any representations or declarations, whether explicit or implied, issued or submitted by the Seller or on its behalf.

3.     The Buyer represents that it has a complete knowledge of the Company’s legal, financial and economic standing, and in making the decision to purchase the Shares it relies only on its knowledge of the Company. In consideration of the above, the Buyer waives the right to and agrees not to pursue any claims against the Seller, which the Buyer could pursue with respect to nondisclosure of substantive information concerning the Company’s legal, financial and economic standing.

4.      The Buyer undertakes to purchase the shares not acquired by eligible employees of the Company on a free of charge basis (hereinafter referred to as the “Remaining Shares”) immediately upon the expiry of the right for such free of charge acquisition, within 60 days after the Remaining Shares were offered for sale by the Seller.

5.     The Remaining Shares shall be purchased at a price calculated as the product of the number of the Remaining Shares purchased by the Buyer and the Price Per Share, indexed by a weighted average for each period of one year (12 months) of a base rate set by the European Commission and published in the Official Journal of the European Union, increased by 100 basis points, i.e. by 1 percentage point calculated for the period starting from the first day of the month when the Agreement was concluded to the last day of the month preceding the month when the Remaining Shares will be purchased, subject to annual (12 month) capitalisation. The said price, however, shall not be lower than the book value of a single Share as at the end of the financial year of the Company preceding the sale of the Remaining Shares.

§ 5

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

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

3.      All changes to this Agreement shall be made in writing on pain of nullity.

4.      This Agreement has been made in the Polish language, in two identical copies, one for each of the Parties.

5.      All notifications and communication related hereto 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:

Ministerstwo Skarbu Państwa                                                                                  

ul. Krucza 36/ Wspólna 6                                                                         ........................

00-522 Warsaw

 

6.      Each Party shall inform the other Party in writing in case of the change of the address for notifications and communications related hereto. In the event that this duty is neglected, notifications and communications sent to the former address shall be considered to have been delivered.

 

Signed by:

The Seller:                                         The Buyer:

 

Simultaneously confirming the receipt of multiple-share certificates

Appendices:

1.      Buyer’s Transcript from the Register of Entrepreneurs from the National Court Register or Certificate of Entry in the economic activity records and the power of attorney (if any).

2.      Company’s Transcript from the Register of Entrepreneurs from the National Court Register.

3.      The Seller’s representation concerning the transfer of shares.

 

 

Appendix .....

to the Share Purchase Agreement

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

 

THE SELLER’S REPRESENTATION CONCERNING THE TRANSFER OF SHARES

 

I, the undersigned, acting pursuant to Article 339 of the Code of Commercial Companies, hereby transfer 132,175 (say: one hundred and thirty two thousand one hundred and seventy‑five) ordinary registered shares of series “A” with numbers from: 000000001 to 000155500 of nominal value PLN 10.00 (say: ten zloty) each, constituting 85% of the share capital of the company Przedsiębiorstwo Komunikacji Samochodowej w Żyrardowie S.A. with registered office in Żyrardów, along with all rights and obligations arising therefrom to ........................................................................