The Minister of Treasury, ul. Krucza 36/Wspólna 6, 00-522 Warszawa, acting on behalf of the Treasury, pursuant to Article 31a, 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 Selling Treasury Shares (Journal of Laws No. 34, item 264, as amended), hereby invites all interested parties to participate in an auction to purchase 3,825 shares for one buyer, of a nominal value of PLN 100.00 each, constituting 85% of the share capital of the company Białostockie Przedsiębiorstwo Robót Zmechanizowanych i Maszyn Budowlanych Sp. z o.o. with registered office in Białystok (hereinafter referred to as the “Shares”), ul. gen. Fr. Kleeberga 12, 15-691 Białystok, registered under number KRS 0000318905, VAT reg. no. (NIP): 5420208098, hereinafter referred to as the “Company”.

The objects of the Companny include hire and operation of tower cranes and other building machinery; repair of building machinery and power hydraulics devices, overhaul of rail and fixed-base tower cranes, gantry cranes and the manufacture of rope slings in accordance with the licnense granted by the Office of Technical Inspection; manufacture and installation of steel structures.
 

The starting price for the stake of 3,825shares is PLN 9,459,225.00 (say: nine million four hundred and fifty-nine thousand two hundred and twenty-five zloty).

The starting price for one Share is PLN 2,473.00(say: two thousand four hundred and seventy-three zloty).

The minimum bidding increment for the entire stake of 3,825 Shares is 47,297.00 (say: forty‑seven thousand two hundred and ninety-seven zloty).The bidders shall place their bids orally. If no further bids are placed, subsequent calls of the highest bid shall be made every one minute.

The highest bidder shall be obliged to purchase the Shares that will not be acquired by the eligible employees entitled to acquire such Shares on a free-of-charge basis in accordance with the Act, under the terms and conditions set forth in the agreement enclosed hereto, hereinafter referred to as the “Share Purchase Agreement”.

The entities interested in the purchase of Company Shares during the public auction may purchase the “Company Memorandum”. To do so, interested entities should:

·    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 “Company 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.

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

-           Ms. Anna Arcimowicz-Kołeczek, room 729, phone: (022) 695 86 61

-           Ms. Agnieszka Kazalska, room 729, phone: (022) 695 97 09.

 

Auction applications 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.        Regon No.;

3.        NIP No.;

4.        e-mail address;

5.        address for correspondence;

6.        telephone number;

7.        fax number;

8.        attached proof of payment of the bid security, along with an indication of the bank account to which the bid security should be refunded;

9.        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 or as a certified copy made by a notary public,

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

10.    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 10(b),

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

11.    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 concluded to date 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.

The documents specified in the Invitation must be submitted in hard copy, in original or as a certified copy made by a notary public.

Documents made in a foreign language must be submitted together with their translations into the Polish language, made by a certified translator.

Official documents – within the meaning of the Hague Convention of 5 October 1961 (Journal of Laws of 2005 No. 112, item 938) waiving the requirement of legalisation of foreign official documents – made under the applicable laws of the state being the signatory to the Convention, must by supported by an apostille.

Official documents (within the meaning of the Convention waiving the requirement of legalisation of foreign official documents) made under the applicable laws of the state not being the signatory to the Convention, must by submitted after their prior legalisation.

Legalisation or issuance an apostille shall not be required within the scope in which the bilateral or multilateral agreement signed by Poland waived or simplified the process of legalisation or waived the requirement to legalise documents in matters covered by the scope of these agreements.
 

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 5 February 2010.

Auction applications 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 8 February 2010.

The envelope should be marked as follows:

 

 

 

Applications to participate in the auction will not be accepted after the expiry of the stipulated date and/or if the envelopes are not marked as indicated above.

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

The bid security of PLN 945,922.50 (say: nine hundred forty-five thousand nine hundred and twenty-two zloty and fifty groszy), which corresponds to 10% of the starting price shall be paid by bank transfer to the account of the Ministry of Treasury held with Bank Gospodarstwa Krajowego S.A., Branch No. 1 in Warsaw, account no. 13 1130 1017 0019 9426 2520 0007, by 5 February 2010.

The bid security is not refundable in the event that the highest bidder refuses to sign the Share Purchase Agreement and when the entity which deposited the required bid security decides not to participate in the auction after the date for submitting applications has passed.

Failure by an eligible entity to attend the auction shall be considered as withdrawal from the auction. Likewise, failure of the auction participants to offer the starting price during the auction shall also constitute a withdrawal from the auction.

The Share Purchase Agreement will be concluded with the entity which placed the highest bid, 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, by a bank transfer to the account of the Ministry of Treasury, account no. 03 1010 1010 0025 1213 3920 0000, held with the National Bank of Poland (NBP), 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 Chairman of the Office of Competition and Consumer Protection (UOKiK) on no impediments to the intended merger of companies;

2.      the consent of the Minister of Internal Affairs

the highest bidder shall immediately, however not later than within 60 days from announcing the highest bidder, apply to appropriate authorities for issuing the above decisions. In such case, the 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 (ul. Krucza 36/Wspólna 6, 00-522 Warszawa) responsible for budget and finance after receipt of the full payment for the shares has been confirmed.

The auction shall be closed upon signing the Share Purchase Agreement.

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

Text of the Share Purchase Agreement:

 

 

 

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

by and between:

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

and

...................................... (company name of buyer) with registered office in ........................., address ................................................................., entered into the Register of Entrepreneurs kept by the District Court for ............................. in ..........................., Commercial Division ........ of the National Court Register, under KRS number ........................., represented by .........................................., authorised to represent the Buyer in accordance with the enclosed transcript from the register (or a 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), attached hereto as Annex No. 1, hereinafter referred to as the “Buyer” .................................... .

............................................................. (names and surname), residing in ........................, address: ..........................................................., holder of Identity Card series .......... no. ............................... (and in the event that the natural person is conducting business activity – the entry number ....................... in the Register of Business Activity kept by ................................................., in accordance with the certificate of entry in the Register of Business Activity, attached hereto as Annex No. 1), 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 4,500.00 (say: four thousand five hundred) shares of a nominal value of PLN 100.00 (say: one hundred zloty) each, constituting 100% of the share capital of the company under the business name of Białostockie Przedsiębiorstwo Robót Zmechanizowanych i Maszyn Budowlanych Sp. z o.o. with registered office in Białystok, entered into the Register of Entrepreneurs maintained by the District Court in Białystok, Commercial Division XII of the National Court Register, under KRS number 0000318905, hereinafter referred to as the “Company”, of which 675 (say: six hundred and seventy-five) of the Company’s shares of a nominal value of PLN 100.00 (say: one hundred zloty) each, constituting up to 15% of the Company’s share capital, shall be made available free‑of-charge to eligible employees of the Company. The Company’s transcript from the Register of Entrepreneurs is attached hereto as Annex No. 2;

2.      The Seller represents that to the best of his knowledge the Shares to be disposed of referred to in section 3 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 in auction no. ............. to sell 3,825 (say: three thousand eight hundred and twenty-five) shares held by the Treasury, constituting 85% of the share capital of the Company operating under the business name of Białostockie Przedsiębiorstwo Robót Zmechanizowanych i Maszyn Budowlanych Sp. z o.o. with registered office in Białystok, hereinafter referred to as the “Shares”, held in accordance with applicable laws.

The Parties have mutually agreed as follows:

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

3.      The total Share purchase price shall be PLN ................ (say: ..................................... zloty) and shall be calculated as the product of the Price per Share and the number of the Shares purchased by the Buyer.

1.      The Seller confirms that the Buyer has paid the amount specified in Article 1(3) of the Agreement, reduced by the amount of the bid security of PLN 945,922.50 (say: nine hundred forty-five thousand nine hundred and twenty-two zloty and fifty groszy), i.e. the amount of PLN .................. (say: ............................. zloty), paid by bank transfer to the account of the Ministry of Treasury held with the National Bank of Poland (NBP), Branch in Warsaw, account no. 03 1010 1010 0025 1213 3920 0000.

2.      The Seller hereby confirms that it has received the amount of the total Share purchase price.

1.      The shares shall be transferred by the Seller to the Buyer upon conclusion of this Agreement with all related rights and obligations.

2.      Immediately upon conclusion of this Agreement, the Buyer shall be obliged to notify the Company’s Management Board in writing of conclusion of this Agreement and purchase of the Shares, as well as to submit a copy of the Agreement in order to make a relevant entry in the Company’s Shareholders’ Register.

1.      The Buyer represents that the conclusion and performance of this Agreement by the Buyer does not violate any provisions of the Polish law nor does it violate any provisions of any award, decision, permit, authorisation or exemption issued by the judicial authorities or the 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 behalf of the Seller.

3.      The Buyer represents that it has full knowledge of the Company’s legal, financial and economic standing, and in making the decision to purchase the Shares it relies solely 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 with respect to nondisclosure of substantive information concerning the Company’s legal, financial and economic standing.

4.      The Buyer agrees to purchase (in accordance with the provisions of this Agreement) the shares not acquired by eligible employees on a free-of-charge basis (hereinafter referred to as the “Remaining Shares”) offered by the Seller within 3 years from the date of expiry of the rights 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 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 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 laws of Poland.

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, with signatures authenticated by a notary, on pain of nullity.

4.      The Parties shall endeavour to resolve any disputes arising out of or in connection with this Agreement amicably.

5.      All claims or disputes between the Parties arising out of or in connection with this Agreement, including concerning its validity and construction, that cannot be resolved amicably shall be submitted for resolution by a common court having jurisdiction over the Seller.

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

7.      All notifications and communication related hereto shall be made in writing and submitted personally, by courier or registered mail (with return receipt requested) to the addresses of the Parties:

for the Seller:                                                  for the Buyer:

Ministerstwo Skarbu Państwa                             ........................

ul. Krucza 36/ Wspólna 6

00-522 Warszawa

8.      Each Party shall inform the other Party in writing in case of any change of the address for notifications and communications related hereto. If any of the Parties fails to inform the other Party as required, the notifications and communications sent to the former address shall be deemed delivered.

 

Signed by:

The Seller:                                                                              The Buyer:

1.      Buyer’s Transcript from the Register of Entrepreneurs kept by the National Court Register, or Certificate of Entry in the Register of Business Activity and the Power of Attorney (if any).

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