1
Exhibit 10.17
Dated October 20, 1999
PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI SPOLKA AKCYJNA
and
FUNDACJA NA RZECZ NAUKI POLSKIEJ
and
T.O.N. AGRO S.A.
and
VIENNA LEAS INTERNATIONAL S.A.
and
PIONEER REAL ESTATE ADVISORS POLAND SP. Z O.O. & CO.
SPOLKA KOMANDYTOWA
and
PIONEER PIERWSZE POLSKIE TOWARZYSTWO FUNDUSZY INWESTYCYJNYCH S.A.
and
PIONEER REAL ESTATE ADVISORS, INC.
and
CADIM SERVOTECH B.V.
and
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
----------------------------------------------------
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT
in respect of
PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
----------------------------------------------------
CAMERON MCKENNA SP. Z O.O.
Warsaw Financial Center
xx. Xxxxxx Xxxxxx 00
00-000 Xxxxxx
T x00 (00) 000 0000
F x00 (00) 000 0000
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THIS AGREEMENT is made the 20th day of October, 1999
BETWEEN
1. PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A. a joint stock company with its
seat in Xxxxxx, Xxxxxx, xx Xxxx Xxxxxx Xxxxxx 0, represented by Ms. Xxxxxx
Xxxxxxx-Xxxxxxx as Vice-President of the Management Board and Mr. Xxxx X.
Xxxxxx III as a member of the Board of Management, as reflected in the
extract from the Commercial Register maintained at the District Court of
Warsaw XVI Commercial Registry Division under no. RHB 50 879 attached as
Exhibit 1 to this Agreement (the "FUND");
2. FUNDACJA NA RZECZ NAUKI POLSKIEJ (the Foundation for Polish Science) with
its seat in Warsaw, Poland, represented by Mr. Xxxxxxxx Xxxxxxxx,
Vice-President of Board of Management of the Foundation and Mr. Xxxxx
Xxxxxxxx, the proxy, as reflected in the extract from the Foundations
Register maintained at the District Court of Warsaw, XVI Commercial
Registry Division under no. RF 1057, attached as Exhibit 2 to this
Agreement (the "FOUNDATION");
3. TOWARZYSTWO OBROTU NIERUCHOMOSCIAMI AGRO S.A., a joint stock company with
its seat in Warsaw, Poland, at Xxxxxxxx 00, 00-000 Xxxxxx represented by
Mr. Xxxxxxxxx Xxxxxxxxxxx as a member of the Board of Management and by
Ms. Xxxx Xxxxxxxxxx, procurist, as reflected in the extract from the
Commercial Register maintained at the District Court of Warsaw, XVI
Commercial Registry Division under no. RHB 51290 ("TON AGRO");
4. VIENNA LEAS INTERNATIONAL S.A., a joint stock company with its seat in
Xxxxxxx, Xxxxxx, xx Xxxxxxxxxx 00, represented by Mr. Xxxxx Xxxxxxxx the
President of Board of Management as reflected in the extract from the
Commercial Register maintained at the District Court of Katowice, VIII
Commercial Registry Division under no. RHB 14736 ("VLI");
5. PIONEER REAL ESTATE ADVISORS POLAND SP. Z O.O I SPOLKA, a limited
partnership with its seat in Warsaw, Poland, at P1. Xxxxxx Xxxxxx 0,
00-000 Xxxxxx, duly represented by Mr. Xxxx Xxxx Jones as a member of the
Management Board of Pioneer Real Estate Advisors Poland Sp. z o.o.,
(General Partner), as reflected in the extract from the Commercial
Register maintained at the District Court of Warsaw, XVI Commercial
Registry Division under no. RHA 376 (the "LIMITED PARTNERSHIP");
6. PIONEER PIERWSZE POLSKIE TOWARZYSTWO FUNDUSZY INWESTYCYJNYCH S.A., a joint
stock company with its seat in Warsaw, Poland, at Stawki 0, 00xx xxxxx,
represented by Ms. Xxxxxx Xxxxxxx-Xxxxxxx President of the Management
Board, as reflected in the extract from the Commercial Register maintained
at the District Court of Warsaw XVI Commercial Registry Division under no.
RHB 31 499 attached as Exhibit 3 to this Agreement ("PIONEER INVESTMENT
FUND");
7. PIONEER REAL ESTATE ADVISORS, INC. with its seat in Boston, 00 Xxxxx
Xxxxxx, XX 00000, the United States of America represented by Mrs.
Xxxxxxxxxx Xxxxxxxx-Xxxxxxxx, Attorney-at-Law, the proxy ("PIONEER");
8. CADIM SERVOTECH B.V., a limited liability company incorporated under the
laws of the Kingdom of the Netherlands with its seat in Amsterdam, the
Netherlands, represented by Mr. Xxxxxx Xxxxxxx, as a member of the
Management Board ("SERVOTECH");
9. THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an international
financial institution established by an international treaty with its seat
in London, England, represented by Ms. Xxxxxxx Xxxxxxx, the proxy
("EBRD");
hereinafter collectively referred to as the "PARTIES", or individually as
the "PARTY".
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Extracts from the Commercial Register of Parties 3 to 5, 8,a Certificate
of Incumbency of Party 7 and a Certificate from the Deputy Secretary
General of Party 9 are attached hereto as Exhibit 4.
RECITALS
A. The Fund is an investment company established as a private Polish joint
stock company for the purpose of investing directly or indirectly in
commercial real estate properties (and equity interests therein) in the
Republic of Poland and managing its real estate in the Republic of Poland.
B. Pioneer, the Foundation, EBRD, Servotech, TON Agro, VLI and the Limited
Partnership, have agreed to subscribe for Shares in the Fund and to
undertake certain commitments and to regulate their rights in relation to
the Fund in the manner hereinafter described, and have agreed together
with Pioneer Investment Fund that the subscription and shareholders'
agreement (the "EXISTING AGREEMENT") dated the 11th day of April 1997
between Pioneer, the Foundation (together hereinafter referred as the
"EXISTING SUBSCRIBERS"), Handlowy Inwestycje Sp. Z O.O. ("HANDLOWY
INWESTYCJE"), Towarzystwo Inwestycyjne DOLMEL ("DOLMEL") and Pioneer
Pierwsze Polskie Towarzystwo Funduszy Powierniczych S.A. (currently
Pioneer Investment Fund) should be amended and restated as follows:
NOW THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
In this Agreement:-
1.1. "ACCOUNT" means the bank account of the Fund as notified to the
Shareholders from time to time by the Board of Management of the
Fund;
1.2. "AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common
control with such Person. For the purposes of this Agreement,
"control" shall mean the ability to direct the activities of the
controlled Person by lawful means;
1.3. "BUSINESS" means the business of the Fund as described in Article 6
of the Statute;
1.4. "BUSINESS DAY" means a day which is not a Saturday, a Sunday or a
public holiday in the Republic of Poland, in London (England), in
New York (New York, the United States of America) and in Montreal
(Canada);
1.5. "CLASS A SHARES" means registered ordinary Class A Shares of the
Fund with a nominal value of one hundred zlotys (100 PLN) each;
1.6. "CLASS B SHARES" means registered ordinary Class B Shares of the
Fund with a nominal value of one hundred zlotys (100 PLN) each;
1.7. "CLASS C SHARES" means registered ordinary Class C Shares of the
Fund with a nominal value of one hundred zlotys (100 PLN) each;
1.8. "CLASS D SHARES" means registered ordinary Class D Shares of the
Fund with a nominal value of one hundred zlotys (100 PLN) each;
1.9. "EXCHANGE RATE" means the average ("SREDNI") National Bank of Poland
rate of exchange for the United States Dollar on the last Business
Day of the month
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preceding the month in which any conversion of Polish zlotys to
United States Dollars, or vice versa, is to be calculated pursuant
hereto, or (if the conversion is to be made or referred to in
documents for consideration at a General Meeting of Shareholders of
the Fund) on the last Business Day of the month preceding the month
in which the announcement calling the Shareholders' Meeting is
submitted for publishing;
1.10. "FUND DOCUMENTS" shall mean the Statute of the Fund, this
Subscription and Shareholders' Agreement, the Investment Advisory
Agreement, the Pioneer Group Letter Agreement, Strategic Advisory
Agreement and Umbrella Service Agreement;
1.11. "INVESTMENT ADVISOR" means Pioneer Real Estate Advisors Poland Sp. z
o.o., a Polish limited liability company wholly-owned by the
Strategic Advisor;
1.12. "PERSON" means and includes (i) an individual, (ii) a legal entity,
organisation, partnership, registered partnership or limited
partnership, and (iii) the State Treasury or a local authority
("Governmental Authority") or any department or agency thereof;
1.13. "PORTFOLIO" means all such properties and/or companies ("PORTFOLIO
COMPANIES") (including without limitation land and buildings and
other facilities and improvements, agreements rights and interests
relating thereto) as the Fund owns or shall own in the Republic of
Poland during the term of this Agreement ("TERM") References to the
Portfolio in this Agreement shall (where the context so requires)
include references to individual properties comprised therein or
held by Portfolio Companies from time to time and to part or parts
thereof;
1.14. "SHARES" means Class A Shares and/or Class B Shares and/or Class C
Shares and/or Class D Shares of the Fund;
1.15. "SHAREHOLDER" means a shareholder holding Shares and the expression
the "SHAREHOLDERS" shall be construed accordingly;
1.16. "STATUTE" means the Statute of the Fund in the agreed form attached
hereto as Exhibit 5, to be adopted by resolution of the General
Meeting of Shareholders of the Fund;
1.17. "STRATEGIC ADVISOR" means Pioneer;
1.18. "SUBSCRIPTION" means the subscription for Shares and the payment of
the Subscription Price for the Subscribed Shares to the Account;
1.19. "SUBSCRIBED SHARES" means Shares held by Shareholders from time to
time;
1.20. "SUBSCRIBERS" means Pioneer, the Foundation, EBRD, Servotech, TON
Agro, VLI, the Limited Partnership and any other Persons which shall
accede to this Agreement and subscribe for Class A Shares, Class B
Shares, Class C Shares or Class D Shares in accordance with the
terms of this Agreement, each individually referred to as a
"SUBSCRIBER";
1.21. "SUBSCRIPTION PRICE" means the price paid by each of the Subscribers
for each Share in Polish zlotys (PLN), being the greater of (a) the
equivalent calculated (according to the Exchange Rate) of
twenty-eight United States Dollars and eighty-eight cents ($28.88
US), or (b) one hundred zlotys (100 PLN);
1.22. "ZLOTY" or "PLN" means the lawful currency of the Republic of
Poland;
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1.23. References to the "EXISTING SUBSCRIBERS" shall, where the context so
requires, be interpreted as referring to successors in title thereof
or permitted assignees;
1.24. Capitalised terms not defined otherwise herein shall have the
meaning ascribed to them in the Statute.
2. INVESTMENT OBJECTIVES
The Fund will seek long-term capital appreciation by investing directly
and indirectly in equity interests in commercial real estate properties in
the Republic of Poland. The Fund will invest in commercial real estate by
direct ownership of interests in real property and through equity and
quasi-equity investments in Portfolio Companies which have limited
liability and have been established for the purpose of acquiring,
developing, renovating, reconstructing, owning and/or managing real estate
property in the Republic of Poland.
3. SUBSCRIPTIONS COMMITTED UNDER THIS AGREEMENT
Pursuant to the provisions of this Agreement and in accordance with the
Exchange Rate as described in Clause 1.9 of this Agreement:
3.1. The Foundation shall subscribe for Class A Shares of consecutive
issues of a total value equivalent to one million United States
Dollars ($1,000,000 US);
3.2. TON Agro shall subscribe for Class A Shares of consecutive issues in
the aggregate being of a total value equivalent to five hundred
thousand United States Dollars ($ 500,000 US);
3.3. VLI shall subscribe for Class A Shares of consecutive issues of a
total value equivalent to one million United States Dollars
($1,000,000 US);
3.4. The Limited Partnership shall subscribe for Class A Shares of
consecutive issues in the aggregate being of a total value
equivalent to three hundred thousand United States Dollars ($300,000
US);
3.5. Pioneer shall subscribe for Class B Shares of consecutive issues of
a total value equivalent to five million seven hundred thousand
United States Dollars ($5,700,000 US);
3.6. Servotech shall subscribe for Class C Shares of consecutive issues
of a total value equivalent to fifteen million United States Dollars
($15,000,000 US);
3.7. EBRD shall subscribe for Class D Shares of consecutive issues of a
total value equivalent to ten million United States Dollars
($10,000,000 US);
3.8. To date, the following Subscribers have paid up the following
portion of their commitment:
3.8.1. Pioneer - 4.13% of their total commitment (together with
Class B shares and 5129 Class A shares), amounting to two
hundred thirty five thousand six hundred and sixty United
States Dollars ($235,660 US);
3.8.2. The Foundation - 22.69% of its total commitment, amounting
to two hundred twenty six thousand nine hundred and
thirty-nine United States Dollars ($226,939 US);
4. EBRD will have the right to cancel its obligation to subscribe and to pay
for additional Shares in the Fund hereunder in the event that the access
of the Republic of Poland to EBRD resources has been suspended under
Article 8, paragraph 3 of the Agreement Establishing the European Bank for
Reconstruction and Development. Other Shareholders shall have the right to
cancel their obligations to subscribe and to pay for
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additional Shares in the Fund hereunder in the event that EBRD exercises
its right under this Clause proportionally to percentage of overall
commitment cancelled by EBRD.
5. RIGHT TO CANCEL THE SUBSCRIPTION
5.1. Each Shareholder subscribing for Shares under this Agreement may, by
notice to the Fund, cancel its unperformed obligations to subscribe
and pay for any of the Shares for which it has hereby agreed to
subscribe and/or call for redemption of shares it already holds, if
any of the representations or warranties made or confirmed by the
Fund under this Agreement shall be found to have been incorrect or
misleading as at the date of signature of this Agreement to such an
extent that a reasonable investor would have been deterred from so
subscribing had s/he been aware of the true and complete facts. The
above cancellation may be exercised within seven (7) days from the
date when the Shareholder first has written notice of such breach of
representation or warranty, and has given written notification
thereof to the Fund. In such case, provided that the notice in
question is either not disputed (or is the subject of a frivolous
dispute), or has been confirmed by arbitration under this Agreement,
the Shareholders shall vote for any redemption of shares at their
issue price, necessary to comply with the notice, or for liquidation
of the Fund as proposed by such Shareholder. Where any Shareholder
does not vote in compliance with its obligations under this clause
5.1 and such breach results in failure of the resolution for
redemption or liquidation (as the case may be) to pass with the
required majority, that Shareholder (and if more than one each of
them jointly and severally) shall be liable to the Shareholder/s
executing the right to cancel subscription in damages for such
breach.
5.2. The obligation of each Shareholder in respect of each and every new
subscription of Class A Shares, Class B Shares, Class C Shares or
Class D Shares shall be subject to the Fund and Pioneer confirming
in writing that their representations and warranties set out in
sub-clauses 8.3.1 and 8.3.5 below are true and correct.
5.3. Each Shareholder subscribing for Shares under this Agreement may, by
notice to the Fund, cancel its unperformed obligations to subscribe
and pay for any of the Shares for which it has hereby agreed to
subscribe if it is unable to do so as a result of any change, after
the date of this Agreement, in any law, rule or regulation of any
federal or state authority of the jurisdiction to which such
Shareholder is subject.
6. SURPLUS OVER NOMINAL VALUE
Any Part of the Subscription Price being, by virtue of the effects of
currency conversions, a surplus over the nominal value of the relevant
share(s) shall be booked on the reserve fund of the Fund.
7. NEW SUBSCRIBERS
7.1. Within nine (9) months following the date hereof other Persons to
which Pioneer has made or will make such a proposal may accede to
this Agreement and become Subscribers according to the terms thereof
("NEW SUBSCRIBERS"). After the above period no new Persons will be
entitled to accede to this Agreement.
7.2. All the Parties may, but are under no obligation to, grant to Mr.
Xxxx X. Xxxxxx III, Mr. Xxxx Xxxx Jones and Xxxxxxxxxx
Xxxxxxxx-Xxxxxxxx, attorney at law (the "PROXIES") an irrevocable
power of attorney, in the form in accordance with that set out in
Exhibit 6 hereto, to sign on their behalf an accession agreement in
form and substance in accordance with that set out in Exhibit 7 (the
"ACCESSION
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AGREEMENT") hereto with each New Subscriber. Each of the Proxies
shall be authorised to act individually.
7.3. The accession of any New Subscriber to this Agreement becomes binding
upon the Parties to this Agreement on the date of the execution of
the Accession Agreement, whether directly, or pursuant to the
aforementioned power of attorney. Notwithstanding anything to the
contrary in the Agreement or any other agreement, the Subscribers
will be under no obligation to execute the Accession Agreement with a
New Subscriber or to vote in favour of the issue of Shares to a New
Subscriber, if sufficient and reasonable evidence of the due
financial capacity and good reputation of the potential New
Subscribers is not provided to the Subscribers.
8. REPRESENTATIONS
8.1. As of the date of this Agreement:
8.1.1. Pioneer holds:
8.1.1.1. thirty one (31) Class C Shares numbered from
00001 to 00031 (which will be converted into
Class B Shares numbered 03001 to 03031) with a
nominal value of one hundred zlotys (100 PLN)
each and with a total value of three thousand and
one hundred zlotys (3,100 PLN) subscribed for in
cash;
8.1.1.2. four thousand three hundred and twenty-nine
(4,329) Class A Shares (formerly held by Dolmel
numbered from 23,659 to 27,987, which will be
converted into Class B Shares numbered 03032 to
07360) with a nominal value of one hundred zlotys
(100 PLN) each and with a total value of four
hundred and thirty-two thousand, nine hundred
zlotys (432,900 PLN) subscribed for in cash;
8.1.1.3. eight hundred (800) Class A Shares (formerly held
by the Foundation) numbered from 22859 to 23658
with a nominal value of one hundred zlotys (100
PLN) each and with a total value of eighty
thousand zlotys (80,000 PLN) subscribed for in
cash;
8.1.2. Pioneer Investment Fund holds three thousand (3,000) Class
B Shares, numbered from 00001 to 03000, with a nominal
value of one hundred zlotys (100 PLN) each and with a
total value of three hundred thousand zlotys (300,000 PLN)
subscribed for in cash, which will be transferred to
Pioneer after execution of this Agreement and court
registration of the amended Statute and increase of the
share capital of the Fund (Pioneer Share consolidation);
8.1.3. The Foundation holds seven thousand eight hundreds fifty
eight (7,858) Class A Shares, numbered from 15001 to 22858
with a nominal of one hundred zlotys (100 PLN) each and
with a total value of seven hundred and eighty-five
thousand, eight hundred zlotys (785,800 PLN) subscribed
for in cash;
8.1.4. The Fund holds fifteen thousand (15,000) Class A Shares
(repurchased from Handlowy Inwestycje at par value)
numbered from 00001 to 15000, with a nominal value of one
hundred zlotys (100 PLN) each and with a total value of
one million, five hundred thousand zlotys (1,500,000 PLN),
which will be redeemed in accordance with Polish law and
the Statute, on
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the day the General Meeting of Shareholders' passes the
resolution on the first increase of the capital of the
Fund in accordance with this Agreement.
8.2. Each of the Subscribers represents, warrants and undertakes to each
other and the Fund that it has taken all necessary action as
required by law and its internal regulations enabling it to validly
undertake and perform the obligations imposed on it under the terms
of this Agreement and that performance of the provisions of this
Agreement will not result in a breach of or constitute a default
under any agreement, statute, law, regulation or other contractual
restriction binding upon it.
8.3. The Fund and Pioneer each represent, warrant and covenant to the
Subscribers making an equity commitment under this Agreement that:-
8.3.1. EXISTENCE AND POWER. The Fund is duly established,
organised and existing under the laws of the Republic of
Poland and has unlimited power and authority under its
Statute and the laws of the Republic of Poland to own and
operate its properties, to carry on its business, to
invest in real estate properties and limited liability
companies, joint stock companies, limited partnership and
others owning real estate properties and to execute,
deliver and perform this Agreement and each of the other
Fund Documents to which it is or will be party.
8.3.2. FINANCIAL CONDITION. As of the date hereof, the Fund has
no contingent obligation, or indebtedness of any kind, and
all sums contributed to date to the equity of the Fund are
held on the Fund's bank account, except for the sums spent
to cover administrations costs and expenses of the Fund
incurred in the ordinary course of business. The financial
situation of the Fund including the calculation of the
administrative costs of the Fund is attached as Exhibit 8
to this Agreement.
8.3.3. HOLDINGS. As of the date hereof, the Fund does not own or
otherwise control any voting stock of or have any
ownership interest in any Person.
8.3.4. LIENS. The Fund does not have outstanding, nor is it
contractually bound to create, any Lien on or with respect
to any of its assets, properties, rights or revenues.
8.3.5. TAXES AND REPORTS. All tax returns and reports required by
law to be filed in the Republic of Poland or abroad, and
each governmental subdivision thereof, have been duly
filed, and all taxes assessments, fees, and other
governmental charges due upon the Fund, or upon any of its
assets or income have been paid or adequately provided for
on the books of the Fund, save only for any minor
infractions due to administrative oversights which have
been or will be promptly cured upon discovery thereof.
8.3.6. DEFAULTS. Neither the Fund nor Pioneer is in breach of any
provision of any contract pertaining to the Fund to which
either the Fund or Pioneer is a party, which breach could
reasonably be expected adversely to influence an
investor's decision to invest in the Fund.
8.3.7. LITIGATION. No notice of any action, suit, other legal or
arbitral proceeding or investigation has been served upon
the Fund, nor (to the best knowledge of the Fund or
Pioneer) is pending by or before any domestic or foreign
court or governmental authority or in any arbitral or
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other forum or (to the best knowledge of the Fund and
Pioneer) is threatened against the Fund.
8.3.8. DISCLOSURE. All documents, reports and other written
information pertaining to the Fund and its proposed
operations (including, without limitation, this Agreement,
and the other Fund Documents) that have been furnished to
EBRD, Servotech and the other Subscribers making a
commitment under this Agreement are true and correct in
all material respects and do not contain any material
misstatement of fact or (to the best knowledge of the Fund
and Pioneer) omit to state a material fact necessary to
make the statements contained herein or therein not
misleading and accurate. For the avoidance of all doubt,
the provisions of this Clause shall not apply to, and
Shareholders shall not be entitled to rely upon, any
draft, unsigned, private placement memorandum which may
have been produced by the Fund, Pioneer or any of their
Associates from time to time.
8.4. The Fund and Pioneer acknowledge that the representations and
warranties made or confirmed in this Agreement are made or confirmed
with the intention of persuading EBRD, Servotech and the other
Subscribers subscribing for Shares hereunder to enter into this
Agreement and to subscribe and pay for the Shares for which they
hereby agree to subscribe, and that EBRD, Servotech and the said
other Subscribers have entered into this Agreement on the basis of
and in full reliance on such representations and warranties.
9. BUSINESS OF THE FUND
Each of the Shareholders agrees to exercise its rights under this
Agreement and as a Subscriber to and Shareholder of the Fund so as to
ensure:
9.1. The realisation of the object of the Fund which shall be to carry on
the Business, and;
9.2. That the Business shall be conducted in accordance with the
investment guidelines ("INVESTMENT GUIDELINES") set out in Exhibit 9
hereto, as amended or modified from time to time by the Supervisory
Board of the Fund, good business practice and sound commercial
principles.
10. KEY PERSONNEL
10.1. Mr. Xxxxxxx X. Xxxxxx shall be the President of the Fund's Board of
Management, Mrs. Xxxxxx Xxxxxxx-Xxxxxxx and Mr. Xxxx X. Xxxxxx III
shall be members of the Board of Management of the Fund. Xxxx Xxxx
Jones shall be Managing Director of the Investment Advisor, and
shall dedicate to the Fund the required percentage of his time
(which shall be a minimum of eighty percent (80%). Any proposed
changes in Key Personnel shall be notified in advance to the
Investment Committee of the Fund, which shall approve appointments
or replacements of Key Personnel before they become effective. Any
such replacements shall dedicate the same amount of time to the Fund
as required of the Key Personnel named above.
10.2. The initial members of the Investment Committee shall be: Mr.
Xxxxxxx X. Xxxxxx of Pioneer, Mr. Xxx Xxxxxx of the EBRD, Mr. Xxxxxx
Xxxxxxx of Servotech, and a person to be jointly appointed by EBRD
and Servotech.
11. EXERCISE OF VOTING RIGHTS
Each Subscriber agrees on its own behalf:
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11.1. to exercise the voting rights available to it at the General Meeting
of Shareholders of the Fund in relation to the Fund so as to give
full effect to the terms and conditions of this Agreement and not to
request a secret ballot;
11.2. to vote on the issuance of bonds by the Fund on the terms and for
the amounts presented by the Board of Management and approved by the
Supervisory Board of the Fund from time to time;
11.3. (provided such Subscriber is a Shareholder with a right to designate
a member of the Supervisory Board):
11.3.1. to inform the Supervisory Board of the Fund of the
existence and identity (but not the commercial details) of
any direct investment in the Polish property sector which
is in the same general location and the same market sector
as the investment opportunities sought by the Fund and has
been approved by the said Shareholder or the relevant
corporate bodies thereof, which could create an
opportunity for conflicts of interest to arise, provided
however that the Shareholders acknowledge that TON Agro
and Servotech (either directly or through its Affiliates)
in their normal course of business are actively involved
in investing and selling real estates; and
11.3.2. (unless the other Shareholders agree otherwise), to cause
its designee (to the extent possible) to refrain from
participation in Fund decisions on projects with respect
to which such Shareholder has a conflict of interest.
11.4. to vote on the dismissal of the President and members of the Board
of Management only for "CAUSE". For the purpose of this section
"CAUSE" shall mean:
11.4.1. a negligent act or a material breach, by the member of the
Board of Management (including the President), of the laws
of the Republic of Poland or of the provisions of this
Agreement, the Statute, the Investment Guidelines, or any
other legal documents regulating the conduct of members of
the Board of Management with respect to the operation of
the Fund, which is not promptly undertaken (using
reasonable endeavours) to be cured or is not cured within
45 (forty five) days of notice from the Supervisory Board
requiring that such breach be cured;
11.4.2. wilful misconduct or fraud by the member of the Board of
Management (including the President);
11.4.3. if, as at October 20, 2001, less than 1/3 (one third) of
the share capital of the Fund is invested pursuant to
Article 6(a) and/or (c) of the Statute;
11.4.4. if, as at October 20, 2002, less than 2/3 (two thirds) of
the share capital of the Fund are invested pursuant to
Article 6 (a) and/or (c) of the Statute.
For the purpose of calculation of the invested Fund's capital in
accordance with sections 11.4.3 and 11.4.4 above, funds to be
invested by the Fund pursuant to legal, valid and binding agreements
shall be deemed to be invested Fund's capital assuming that the
first expense by the Fund in respect of such project shall take
place within 12 (twelve) months from the execution of such an
agreement.
Notwithstanding the above none of the members of the Board of
Management may be dismissed for reasons provided for in sections
11.4.3 and 11.4.4 if the Fund
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did not invest its share capital in amounts provided therein, due to
a refusal to invest in projects presented by the Investment Advisor
which were in compliance with the Investment Guidelines.
12. INCREASE OF SHARE CAPITAL
Each Subscriber agrees on its own behalf:-
12.1. during the 36 months commencing on the date hereof (subject to an
extension of 12 months, if so resolved by Shareholders representing
more than three quarters (3/4) majority of the share capital of the
Fund) ("INVESTMENT PERIOD"), at each General Meeting of Shareholders
of the Fund called by the Board of Management of the Fund to vote in
favour of an increase in the share capital of the Fund in an amount
as described in the public announcement published by the Board of
Management of the Fund and to subscribe for the number of new Shares
as described in the public announcement published by the Board of
Management of the Fund, as well as all Accession Agreements,
provided that:
12.1.1. capitalisation of the Fund shall at no time exceed the
zloty equivalent of sixty million United States dollars
($60,000,000 US) based on a share price of $28.88 per
Share (or the zloty equivalent thereof calculated by
reference to the Exchange Rate applicable on the date of
Subscription for each Share) and Servotech shall at all
times hold at least 25% of the share capital of the Fund;
12.1.2. the obligations of each Subscriber under this Clause shall
be capped at their respective amounts specified in Clause
3;
12.1.3. each Subscriber shall be obliged to subscribe for and
contribute the same percentage of its commitment as each
other Subscriber, provided that, due to the fact that the
Foundation has contributed 22.69% of its commitment set
out in Clause 3, it will not be obliged to subscribe for
new Shares in the Fund and make any contributions until
such time as the other Subscribers contribute to the Fund
22.69% of their respective commitments set out in Clause
3, provided that the funds contributed by the Foundation
are held on the bank account of the Fund or have been
invested;
12.1.4. nothing in this Agreement shall require any Subscriber who
has not already done so to make an initial subscription
("FIRST SUBSCRIPTION") of more than five percent (5%) of
that Subscriber's total commitment pursuant to Clause 3 of
this Agreement. The First Subscription will be made by the
Subscribers within ten (10) Business Days from the date of
the resolution of the General Meeting of Shareholders on
the increase of the share capital of the Fund, in the
amount indicated in writing by the Management Board of the
Fund;
12.1.5. after the Subscribers have made their First Subscription,
the Fund shall not call for them to subscribe for new
Shares unless funds are actually required, or reasonably
foreseen to be required within three (3) months:
12.1.5.1. to fund investments duly approved by the
Investment Committee, or
12.1.5.2. to pay fees to the Investment Advisor (provided
always that the Fund shall not call for new
capital for this purpose more frequently than
every six months).
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12.1.6. The Fund will provide the Shareholders a quarterly
estimate of the anticipated share capital increase of the
Fund.
12.1.7. For the purposes of this Agreement, the date of payment
for the Shares, is the date the Subscription Price is
entered in the Account.
12.2. The share capital of the Fund shall be increased, in accordance with
Clause 12.1 above, by the issue of ordinary registered Class A
Shares, Class B Shares, Class C Shares and Class D Shares of
consecutive issues, which shall (subject to Clause 3.9) be covered
by cash contributions. Subject to 12.1.3 above, the Subscribers
shall subscribe for the Shares and shall pay for them in full within
not longer than fourteen (14) days from the date of receipt of
certified copy of the resolution to increase the share capital of
the Fund (except for the First Subscription as set out in 12.1.4
above). Notwithstanding the above, but subject to Clause 17 below,
in case of any default on the part of any Subscriber to subscribe
and pay for the Shares issued to it hereunder, the remaining
Subscribers are not allowed (subject to Clause 5.3 above) to reduce
their contribution and shall subscribe for all Shares issued to
them;
12.3. in the event New Subscribers accede to this Agreement pursuant to
Clause 7 within the period specified in Clause 7.1, to waive all of
the pre-emptive rights to which they are entitled in respect of the
newly issued Shares to be subscribed for by the New Subscribers.
This obligation shall expire within nine (9) months of the date
hereof. The New Subscribers shall subscribe and pay in full a
prorata share of their commitment equal to the portion already
subscribed and paid up by the Subscribers within a period not longer
than fourteen (14) days from the date of the resolution to increase
the share capital of the Fund, pursuant to the resolution of
Shareholders.
12.4. When all Shareholders will have contributed twenty-five percent
(25%) of their respective commitments to the Fund as set out in
Clause 3 of this Agreement, each of them may vote at the next
General Meeting of Shareholders of the Fund, called by the Board of
Management of the Fund:
12.4.1. to amend Article 7 of the Statute in order to carry out
the split of all Shares of the Fund in such a manner that
each Share of a nominal value of one hundred zlotys (100
PLN) issued prior to that resolution will be split into
ten (10) new Shares of the same Class of a nominal value
of ten zlotys (10 PLN);
12.4.2. to authorize the Board of Management of the Fund within
three (3) months from the date of that resolution to carry
out the replacement of all existing Shares with such new
Shares and, in particular, to call upon all Shareholders
to deliver their Shares to the Board of Management for
that purpose;
12.4.3. to add point 5 to Article 7 of the Statute to read as
follows:
"For the purpose of this provision a dollar equivalent of
nominal value of Shares owned by each Shareholder shall be
calculated on the basis that:
- for Shares issued prior to [date of the resolution]
i.e. Class A Shares of the issue [], Class B Shares of
the issue [], Class C Shares of the issue [], and Class
D Shares of the issue [], every one hundred zlotys (100
PLN) of the nominal value of such Shares shall be
treated as equal to twenty-eight United States dollars
and eighty-eight cents ($28.88 US);
- for Shares issued after [date of the resolution] each
ten zlotys (10 PLN) of the nominal value of such Shares
shall be treated as equal to twenty-eight United States
dollars and eighty-eight cents ($28.88 US)."
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The change of the structure of the share capital of the Fund shall
not affect any other rights and duties of any of the Shareholders of
the Fund related to this Agreement.
12.5. In the event that TON Agro provides to the Fund in writing by
December 31, 1999 a binding and irrevocable offer accepted by the
Fund of the increase in its Commitment to the Fund to a total of
five million United States Dollars ($5,000,000 US) the Shareholders
agree:
12.5.1. to amend this Agreement as necessary to reflect the
increased Commitment of TON Agro; and
12.5.2. to vote to amend the Statute to provide that the right of
EBRD and Servotech under Article 8.9 and Article 9.2 to
jointly appoint a member of each of the Supervisory Board
and the Investment Committee shall be transferred to and
be exercisable by TON Agro, as long as it remains a
Shareholder of the Fund; such amendment shall, however,
provide that such right shall revert to EBRD and
Servotech, when TON Agro shall have ceased to be a
Shareholder of the Fund.
13. CERTIFICATE OF INCUMBENCY
The Fund shall furnish or cause to be furnished to each Subscriber
subscribing for Shares, a certificate in the form attached hereto as
Exhibit 10 as to the authority of the Person or Persons who will, on
behalf of the Fund, sign the requests and certifications provided for in
this Agreement, or take any other action or execute any other document
required or permitted to be taken or executed by the Fund under this
Agreement, together with authenticated specimen signatures for each such
Person.
14. PENALTIES
14.1. Notwithstanding the provisions of any other Clauses of this
Agreement, but subject to Clause 7.3, if any Party is in breach of
its aforesaid obligations (i.e. (a) to vote for an increase in the
share capital and/or (b) to vote for the issue of Shares to New
Subscribers and/or (c) to waive its rights of pre-emption) and if it
shall not have cured such breach within ten (10) Business Days from
receiving notice thereof from the Fund, it shall be liable to pay to
the Fund a penalty fee in the amount of one hundred and fifty
percent (150%) of the amount which would have been paid to the Fund
by the relevant Subscriber or Subscribers who were prevented from
making their contributions (in case of a breach of Clauses 12.1 or
12.2) or New Subscriber (in case of a breach of Clause 12.3) as a
contribution to pay for the Shares to be issued to such New
Subscriber.
14.2. If, as a result of a breach of Clause 12.3, the New Subscriber
exercises its right to withdraw from this Agreement, the defaulting
Subscriber shall pay a penalty in the amount of one hundred and
fifty percent (150%) of the total amount committed for investment by
the New Subscriber. Provisions applicable to a penalty fee specified
under Clause 14.1 shall apply also to the penalty fee set out
herein, save that the penalty shall be payable to the remaining
Subscribers in amounts proportionate to their holdings of Shares
within thirty (30) Business Days from the date of notice of the
relevant breach.
14.3. The above provisions shall not preclude any Subscriber from claiming
damages if that Subscriber's losses exceed the penalty to which s/he
is entitled.
14.4. The penalties specified in Clause 14.1 shall be put into the reserve
fund of the Fund.
14.5. Notwithstanding Clause 14.1 - 14.3, upon the request of the Fund,
each Shareholder, obliges himself to sell its Shares, in case of its
default in its commitment to contribute share capital, in accordance
with Clause 3, in the
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following way:
14.5.1. in case of default to subscribe for Shares prior to
funding 85% of commitments, the defaulting Shareholder
shall be obliged to sell all Shares held by him;
14.5.2. in case of default to subscribe for shares after funding
85% of commitments, the defaulting Shareholder shall be
obliged to sell the amount of Shares necessary to cover
the defaulting Shareholder's required total commitment to
subscribe for Shares.
14.6. For the purposes of this Clause, the percentage of commitments
described in Clause 14.5 above shall be calculated on basis of the
contribution of each Shareholder, as described in Clause 3 where the
share value shall be based on a deemed price of twenty-eight United
States dollars and eighty-eight cents ($ 28.88 US) per Share as
described in Clause 1.9 of this Agreement.
15. The Subscribers may, but are under no obligation to, grant within fourteen
(14) days from the date hereof an irrevocable independent power of
attorney to the Proxies, in the form of Exhibit 11 to represent them at
any General Meeting of Shareholders and to vote for the above-mentioned
amendments to the Statute as well as the above mentioned increase(s) in
share capital as well as for the subscription in their name of the
registered Shares for which they agreed to subscribe in this Agreement.
This power of attorney may be granted for a period of thirty-six (36)
months from the date of the establishment of the Fund. The above power of
attorney shall be used only in the event the representatives of the
Subscribers do not attend a given General Meeting of Shareholders.
16. The obligation of Subscribers to vote for increases in the share capital
of the Fund and subscribe for Shares up to the amount of their total
commitments will expire thirty-six (36) months from the date of this
Agreement (subject to a 12-month extension, if so resolved by the
Shareholders representing more than three quarters (3/4) majority of the
Fund), PROVIDED ALWAYS THAT:-
16.1. Subscribers shall meet calls to subscribe made before the end of the
said period (as extended if appropriate) and expiring no later than
thirty days after the end thereof, and
16.2. nothing in this Clause shall affect the liability of Subscribers to
honour calls to subscribe up to their said total commitments which
were made before the expiry of the said period in order to meet
investment commitments made by the Fund.
17. EBRD'S AND SERVOTECH'S RIGHT TO REDUCE THEIR COMMITMENTS
17.1. In the event of a default by any other Subscriber, each of EBRD and
Servotech shall have the option to reduce their respective
commitment to subscribe for the EBRD Shares and the Servotech's
Shares to the extent necessary to cause their total subscription to
the Fund not to exceed thirty percent (30%) of total commitments in
the case of EBRD and forty-five percent (45%) of total commitments
in the case of Servotech, as expressed in United States Dollars at
the Exchange Rate.
17.2. Prior to exercising their respective rights under this Clause, EBRD
and/or Servotech shall:-
17.2.1. give notice of its/their intention to exercise the said
right within fourteen (14) days following the end of the
subscription period during which the default has occurred;
and
17.2.2. afford the Fund ninety (90) days (the "Cure Period")
either:
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17.2.2.1. to persuade any defaulting Subscriber
("Defaulter") to honour its obligations; or
17.2.2.2. to find other Subscribers or new investors
willing to make good the sums which the
Defaulter has failed to subscribe; or
17.2.2.3. otherwise to cure the default.
17.3. During the Cure Period, the Fund shall not invest any subscriptions
received during the relevant subscription period.
17.4. In the event of a default by any Subscriber, all remaining
Shareholders including EBRD and Servotech, shall have the option to
lend the Fund the sums which the Defaulter has failed to subscribe
(the "Shareholder's Loan") which option may be exercised at any time
during the first sixty days following the end of the subscription
period during which the default has occurred by giving the Fund a
written notice to that effect. The Shareholder's Loan shall be for a
term of twelve (12) months and shall bear interest both before and
after maturity at the rate of twenty percent (20%) per annum,
calculated monthly. The principal amount of the Shareholder's Loan,
all interest thereon as well as all the lending Shareholders'
reasonable costs of granting the Shareholder's Loan and a one
percent (1%) placement fee shall be repaid to the lending
Shareholder, as soon as possible, with priority over all other sums
payable to the Shareholders pursuant to the Fund Documents or
otherwise. The Shareholder's Loan shall be disbursed to the Fund, in
a single advance, in United States Dollars, not more than thirty
(30) days following the exercise of the option, upon the execution
by the Fund of all customary documents reasonably required by the
lending Shareholder to evidence the Shareholder's Loan. In the event
that more than one of the remaining Shareholders shall exercise such
option, the amount of the Shareholder's Loan shall be advanced by
all such Shareholders, jointly, each of them contributing in
proportion to the number of Shares each hold over the total number
of Shares of the Fund held by all Shareholders exercising the
option, unless agreed otherwise by such Shareholders.
17.5. If by the end of the Cure Period where applicable, or by the end of
the delay mentioned in Clause 17.4 hereof in other cases, the
defaulting Subscriber shall not have complied in full with the
relevant obligation or the Fund shall not have received the proceeds
of any Shareholder's Loan, the Fund shall repay all Shareholders'
subscription, including EBRD's and Servotech's subscription, to the
extent necessary to comply with sub-clause 17.1 above, or if the
funds remaining are insufficient to allow the Fund to complete whole
or part of the investment contemplated when the cash call was
effected, the Fund shall repay all Shareholders' that subscription
in full.
17.6. In case EBRD and/or Servotech has exercised their rights specified
in this Clause, the remaining Shareholders shall have the right to
reduce their commitments to subscribe for shares proportionally.
18. The Fund intends to apply for the listing of its Shares in a developed
trading market (approved by the General Meeting of Shareholders) as soon
as possible, within six (6) years of the date of this Agreement. Prior to
the fifth (5th) anniversary of the date of this Agreement, the Board of
Management of the Fund will submit an action plan for the listing of the
Fund to the Supervisory Board for consideration.
19. DISTRIBUTION OF PROFITS
19.1. During its first three years of operations (subject to an extension
upon a resolution of the General Meeting of Shareholders adopted by
more than three quarters (3/4) majority of the votes cast), the Fund
will pay dividends as and when
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recommended by the Supervisory Board and approved by the General
Meeting of Shareholders pursuant to the Statute. Thereafter, the
Fund will make a distribution to Shareholders at least annually to
the extent there is an after tax profit available for distribution,
as provided by Polish law. Dividends will be paid in zlotys. The
Fund expects to retain substantially all of its earnings until the
third anniversary or, if extended, until the fourth anniversary of
the date of this Agreement.
19.2. Distributions of income accrued to the Fund from the temporary
investment of cash reserves, net of management and administrative
fee, expenses and taxes payable by the Fund will be made to all
Shareholders at least annually in proportion to their Share
ownership.
19.3. Likewise, upon termination and liquidation of the Fund, liquidating
distributions of cash and securities, after liquidation proceedings
will be made to all Shareholders in proportion to their respective
Share ownership.
20. TRANSFER OF INTEREST
The rights of Shareholders to transfer their Shares are governed by the
Statute. The Shareholders shall procure that any purchaser of their Shares
shall become a party to this Agreement and shall become a Subscriber in
the meaning of this Agreement, and shall assume all rights and obligations
resulting from the sale of such Shares except for EBRD's right under
Clause 4 and 17.1 above.
21. INVESTMENT ADVISORY AGREEMENT
21.1. The Subscribers agree that the Fund shall enter into an Investment
Advisory Agreement and an Umbrella Services Agreement in the forms
attached hereto as Exhibits 12 and 13 respectively, which shall
supersede any and all previous agreements by the Fund with the
Investment Advisor.
21.2. The Strategic Advisor will enter into a Strategic Advisory Agreement
with the Investment Advisor (and not the Fund) in the form attached
hereto as Exhibit 14, and under such agreement will provide services
to the Investment Advisor and receive fees for such services from
the Investment Advisor and not from the Fund.
21.3. Pioneer acknowledges that Servotech and EBRD may receive in the
future from the Investment Advisor consideration in return for their
significant investment in the Fund and consequential increased
marketability of the Fund.
22. CO-INVESTMENT
Each Shareholder shall have the right to enter into an agreement with the
Fund to provide for:-
22.1. co-investment by that Shareholder with the Fund on equal terms and
conditions to be agreed between the relevant Shareholder and the
Fund provided that no advisory fees or incentive fees shall be
payable by the co-investing Shareholder, and/or
22.2. debt financing to be advanced by that Shareholder to the Fund and to
be secured by a mortgage or mortgages on the real estate assets of
the Fund on terms and conditions to be agreed between the relevant
Shareholder and the Fund.
23. TERMS OF SHARE SALE
23.1. Subject to the provisions of the Statute, every sale, transfer or
other kind of alienation of the Shares in the Fund to any third
person may take place only upon the condition that the purchaser
shall accede to this Agreement, under which it will undertake to
comply with all provisions of this Agreement.
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23.2. In the event the Shares of the Fund are transferred in breach of the
preceding sub-clause, the transferor shall remain liable for the
performance by each possessor of transferred Shares of obligations
which he would have been obliged to perform if he acceded to this
Agreement. The transferor shall be liable for damages incurred by
the Parties to this Agreement arising from the non-performance of
the above obligation by each of the possessors of Shares, in the
event the Shares of the Fund are transferred in such breach.
24. CONFLICTS OF INTEREST
The Fund will not invest in any property owned (in whole or in part) by
Pioneer, the Investment Advisor or any Affiliate thereof, or in any
Company whose Shares are held by, or which has borrowed funds from,
Pioneer, the Investment Advisor, or any Affiliate of either thereof,
including any investment funds managed, advised or sponsored by Pioneer or
its Affiliates, without a prior resolution of the Supervisory Board
pursuant to Articles 8.10 (r) and 8.12 (b) of the Statute. In the event
that the Fund invests in a property or Portfolio Company advised by
Pioneer or the Investment Advisor or any of their Affiliates, the terms of
such advisory work shall be fully disclosed to the Supervisory Board prior
to the Fund making a decision on such investment.
25. NON-DISCLOSURE OF INFORMATION
25.1. Each Party undertakes to each of the other Parties that it shall use
all reasonable endeavours, except with the consent of the relevant
Party or as may be required by law, by any court of competent
jurisdiction, or by any regulatory authority or by any regulations
binding upon it, to ensure that all information received by it in
writing relating to the other Parties which is not in the public
domain and which is marked "confidential" on the cover, shall be
treated as confidential and shall not be disclosed to any third
party, except with a proposed sale of its Shares, PROVIDED ALWAYS
that all written information provided by Parties to each other prior
to the date of this Agreement shall be deemed to have been marked
"confidential".
25.2. This restriction shall continue to apply after the expiration or
termination of this Agreement with limit to [two] (2) years after
liquidation of the Fund but shall cease to apply to information or
knowledge which may properly come into the public domain through no
fault of the Party so restricted.
25.3. A Party shall not be in breach of the provisions of this Agreement
by virtue of any member of the Board of Management, Supervisory
Board, or Investment Committee of the Fund appointed by a Party
passing to that Party any information s/he receives in that capacity
or in any similar capacity in relation to any subsidiary of the
Fund, but nothing contained in this Agreement shall require such
disclosure which would result in the breach of a fiduciary duty to
the Fund or any such subsidiary.
25.4. Notwithstanding the foregoing, nothing herein shall prevent EBRD and
Servotech from disclosing information relating to its investment in
the Fund as required by policies and procedures issued by its
governing bodies.
26. DURATION
This Agreement shall continue in full force and effect until any of the
following events occurs:-
26.1. the express written agreement of all the Shareholders of the Fund to
terminate this Agreement; or
26.2. the liquidation and/or winding up of the Fund and/or the date on
which the judgement providing for the de-registration of the Fund
becomes final and
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unappealable through ordinary means of appeal; or
26.3. in respect to each Shareholder, the sale of all Shares held by such
Shareholder; in accordance with the provisions of this Agreement; or
26.4. the Shares of the Fund become listed securities.
Following any such termination, the provisions of Clause 25 shall
nevertheless remain in full force and effect.
27. COSTS, FEES AND EXPENSES
27.1. All organisational expenses and legal costs incurred in connection
with the establishment of the Fund, in accordance with this
Agreement and its Exhibits, will be borne by the Fund in an amount
not to exceed one percent (1%) of the Fund's total capital
commitments. All organisational expenses and legal costs in excess
of this amount will be borne by the Strategic Advisor.
27.2. The budget for Fund expenses will be subject to the approval of the
Supervisory Board.
28. INDEMNIFICATION
The Fund will indemnify, out of the assets of the Fund only, the
Investment Advisor, the Board of Management and their respective officers,
directors and employees, and each member of the Investment Committee and
the Supervisory Board for any claims, damages and liabilities to which
they may become subject because of their status as Investment Advisor of
the Fund or member of the Board of Management, Investment Committee or
Supervisory Board of the Fund, or as an officer, director or employee
thereof, or by reason of any action taken or omitted to be taken by them
in connection with the Fund, except to the extent caused by their gross
negligence or wilful misconduct.
29. ASSIGNMENT
29.1. During the term of this Agreement, no Shareholder shall (or shall
purport) to assign, transfer, or otherwise dispose of any of its
Shares unless it shall first have procured that its assignee,
transferee or other recipient (the "NEW SHAREHOLDER") shall have
acceded to this Agreement as hereinbefore provided.
29.2. Nothing in this clause shall authorise any transfer of Shares which
would not be made in accordance with the Statute of the Fund.
30. SUCCESSORS
This Agreement shall be binding on and shall inure for the benefit of the
respective successors in title of each Party.
31. NO PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a partnership
between the parties nor constitute any party the agent of any other party
for any purpose.
32. FURTHER ASSURANCE AND GOOD FAITH
32.1. Each Party shall co-operate with the other Parties to prepare and
deliver documents and take such other actions as may be reasonably
requested in order to implement this Agreement.
32.2. The Parties shall at all times act diligently towards each other in
fulfilment of their obligations hereunder and in relation to the
Fund and this Agreement.
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33. ARBITRATION
33.1. Any claims or disputes between the Parties, involving at least one
non Polish Party, arising out of or relating to this Agreement,
which cannot be resolved in an amicable fashion shall be settled by
an arbitration court sitting in London, England (the "LONDON
ARBITRATION COURT"). The arbitration proceeding shall be conducted
in accordance with the Rules of Arbitration of the United Nations
Commission on International Trade Law (the "UNCITRAL ARBITRATION
RULES") in force at the time of submittal of the dispute to
arbitration. The proceedings shall be conducted in the English
language. There shall be one arbitrator appointed jointly by such of
the Parties as are in dispute. The President of the London Court of
International Arbitration shall act as the appointing authority
under the UNCITRAL Arbitration Rules if the Parties in dispute fail
to appoint the arbitrator jointly within the limits specified in the
UNCITRAL Arbitration Rules.
Nothing in this Agreement shall be construed as a waiver,
renunciation or other modification of any immunities, privileges or
exemptions of EBRD accorded under the Agreement Establishing the
Bank, international conventions or any applicable law.
33.2. All claims or disputes between the Polish Parties will be settled by
the Arbitration Court at the National Chamber of Commerce in Warsaw
(the "WARSAW ARBITRATION COURT") in accordance with the arbitration
rules of such court prevailing at the time. The award of the
arbitration court shall be final and binding.
33.3. Nothing in this Agreement shall be construed as an attempt to
exclude the jurisdiction of the Polish courts in matters as to
which, by virtue of Polish law, they have exclusive jurisdiction.
33.4. In making its decisions on a matter in dispute, the Warsaw
Arbitration Court shall have no regard to any findings of the London
Arbitration Court in previous similar disputes which may have arisen
between other Parties, and vice versa.
34. MISCELLANEOUS
34.1. This Agreement, subject to Clause 12.1.4, is conditional upon
registration within forty five (45) Business Days from the receipt
of the capital cash contributions from the Shareholders by the
District Court-Commercial Court in Warsaw (the "COURT") the
resolutions the General Meeting of Shareholders of the Fund
authorising:-
34.1.1. the necessary increase in the share capital of the Fund to
comply with the Subscribers obligations under this
Agreement to subscribe for their first tranche of Shares;
and
34.1.2. the amendment of the existing statute of the Fund so as to
be in the new form of the Statute.
34.2. If the pre-condition in the foregoing sub-clause shall not be
satisfied, this Agreement shall not come to force, and the
relationships between the Existing Subscribers shall continue to be
governed by the Existing Agreement. The Subscribers shall be
released from their obligations to make commitments and the capital
paid to the Fund on the basis of this Agreement shall be returned.
If such pre-condition is satisfied, then, as of the date of
registration by the Court of the above resolutions, this Agreement
supersedes any and all prior agreements between the parties, which
said agreements are hereby terminated and of no further force and
effect. In particular, subject as aforesaid, from the date thereof,
the
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Existing Agreement shall expire and shall have no further force and
effect, and the relationships between the Subscribers shall be
governed by this Agreement.
34.3. This Agreement shall be governed by and construed in accordance with
Polish law.
34.4. This Agreement was executed in two languages, Polish and English, in
9 originals one of each for each of the Parties. In case of a
disputes involving an entity with its seat outside of the Republic
of Poland, the English version shall prevail in case of any
discrepancy between versions in different languages, but otherwise
the Polish version shall be binding.
34.5. Any amendment to this Agreement shall be in writing to be valid.
34.6. Nothing in this Agreement shall be construed as adversely affecting
the special rights conferred by the Statute upon the holders of any
Class of Shares, including special voting and rights to appoint
representatives to the Supervisory Board, the Board of Management or
the Investment Committee of the Fund. Nor shall anything in this
Agreement be construed as adversely affecting the rights of such
appointees.
34.7. Unless provided otherwise all notices and other communications given
or made pursuant hereto shall be in writing and shall be deemed to
have been given or made if in writing and delivered personally, sent
by registered mail or sent by telefax:-
IF TO THE FUND:
Pioneer Polski Fundusz Nieruchomosci S.A.
Xxxx Xxxxxx Xxxxxx 0
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxxx Xxxx Jones
Mr. Xxxxx Xxxxxxxxxxx
Telephone: x00 (00) 000 0000
Telefax: x00 (00) 000 0000
cc:
Cameron McKenna Sp. z o.o.
Warsaw Financial Center
00 Xxxxxx Xxxxxx Xx.
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxxxxx Xxxxx
Ms. Xxxxxxxxxx Xxxxxxxx-Xxxxxxxx
Telephone: + 00 (00) 000 0000
Telefax: + 00 (00) 000 0000
cc:
Pioneer Real Estate Advisors, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00-000
XXX
Att.: Mr. Xxxxxxx X. Xxxxxx
Mr. Xxxx X. Xxxxxx III
Telephone: + 0 (000) 000 0000
Telefax: + 0 (000) 000 0000
21
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT Page 21 of 40
--------------------------------------------------------------------------------
IF TO THE FOUNDATION:
Fundacja Na Rzecz Nauki Polskiej
11 Grazyny St.
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxxxxx X. Xxxxxxx
Mr. Xxxxx Xxxxxxxx
Telephone: + 00 (00) 000 0000
Telefax: + 00 (00) 000 0000
IF TO TON AGRO:
Towarzystwo Obrotu Nieruchomosciami AGRO S.A.
00 Xxxxxxxx Xx.
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxx Xxxxxxxx Xxxxxxx
the President of the Board of Management
Tel.: + 00 (00) 000 0000
Fax: + 00 (00) 000 0000
IF TO VLI:
Vienna Leas International S.A.
00 Xxxxxxxxx Xx.
00-000 Xxxxxxx Xxxxx, Xxxxxx
Att.: Mr. Xxxxx Xxxxxxxx
the President of the Board of Management
Telephone: + 48 (33) 183 667
Telefax: + 48 (22) 183 976
IF TO THE LIMITED PARTNERSHIP:
Pioneer Real Estate Advisors Poland Sp. z o.o. i Spolka,
Spolka Komandytowa.
PL Trzech Xxxxxx 0
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxxx Xxxx Jones
Member of the Board of Management
Tel.: + 00 (00) 000 0000
Tel./fax: + 00 (00) 000 0000
IF TO PIONEER INVESTMENT FUND:
Pioneer Pierwsze Polskie Towarzystwo Funduszy Inwestycyjnych S.A.
2 Stawki St., 29 floor
00-000 Xxxxxx, Xxxxxx
Att.: Ms. Xxxxxx Xxxxxxx-Xxxxxxx
President of the Management Board
22
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT Page 22 of 40
--------------------------------------------------------------------------------
Tel.: + 00 (00) 000 0000
Fax: + 00 (00) 000 0000
IF TO PIONEER:
Pioneer Real Estate Advisors, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00-000
XXX
Att.: Mr. Xxxxxxx X. Xxxxxx
Mr. Xxxx X. Xxxxxx III
Telephone: + 0 (000) 000 0000
Telefax: + 0 (000) 000 0000
cc:
Cameron McKenna Sp. z o.o.
Warsaw Financial Center
00 Xxxxxx Xxxxxx Xx.
00-000 Xxxxxx, Xxxxxx
Att.: Mr. Xxxxxx Xxxxx
Ms. Xxxxxxxxxx Xxxxxxxx-Xxxxxxxx
Telephone: + 00 (00) 000 0000
Telefax: + 00 (00) 000 0000
IF TO SERVOTECH:
CADIM Servotech B.V.
000, Xxxxxx Xxxxxxxx, Xxxxx 0000
P.O.B. 000
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Att.: V.P. Legal
Tel.: (000) 000-0000
Fax: (000) 000-0000
cc:
CADIM Servotech B.V.
Xxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Att.: Mr. X. Xxxxxxx Xxxxxxxx
TeL: 00 00 000 0000
Fax: 00 00 000 0000
cc:
Lafleur Brown
0 Xxxxx Xxxxx Xxxxx, 00 xxxxx
X0X 0X0 Xxxxxxxx, Xxxxxx, Xxxxxx
Tel.: (000) 000 0000
Fax: (000) 000 0000
23
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT Page 23
--------------------------------------------------------------------------------
00-000 Xxxxxx, Xxxxxx
Tel.: + 00 00 000 00 00
Fax: + 00 00 000 00 00
IF TO EBRD:
European Bank for Reconstruction and Development
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: + 00 000 000 0000
Fax: + 00 000 000 0000
Telex: 8812161 Answerback EBRD LG
Att.: Operation Administration Unit
THIS AGREEMENT SHALL BE CONCLUDED ON THE DATE ON WHICH THE LAST PARTY INDICATED
IN THE PREAMBLE TO THIS AGREEMENT SIGNS IT.
SIGNED
IN THE NAME AND ON BEHALF OF THE FUND
/s/ Xxxxxx Xxxxxxx-Xxxxxxx
----------------------------------------
Ms. Xxxxxx Xxxxxxx-Xxxxxxx, Vice-President of the Board of Management
/s/ Xxxx X. Xxxxxx III
----------------------------------------
Mr. Xxxx X. Xxxxxx III, a member of the Board of Management
IN THE NAME AND ON BEHALF OF THE FOUNDATION
/s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Mr. Xxxxxxxx Xxxxxxxx, Vice-President of the Board of Management
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Mr. Xxxxx Xxxxxxxx, the proxy
IN THE NAME AND ON BEHALF OF TON AGRO
/s/ Xxxxxxxxx Xxxxxxxxxxx
----------------------------------------
Mr. Xxxxxxxxx Xxxxxxxxxxx, a member of the Board of Management
/s/ Xxxx Xxxxxxxxxx
----------------------------------------
Ms. Xxxx Xxxxxxxxxx, procurist
24
SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT Page 24
--------------------------------------------------------------------------------
IN THE NAME AND ON BEHALF OF VLI
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Mr. Xxxxx Xxxxxxxx, the President of the Board of Management
IN THE NAME AND ON BEHALF OF THE LIMITED PARTNERSHIP
/s/ Xxxx Xxxx Jones
----------------------------------------
Mr. Xxxx Xxxx Jones, a member of the Board of Management of Pioneer Real Estate
Advisors Poland Sp. z o.o. (General Partner)
IN THE NAME AND ON BEHALF OF PIONEER INVESTMENT FUND
/s/ Xxxxxx Xxxxxxx-Xxxxxxx
----------------------------------------
Ms. Xxxxxx Xxxxxxx-Xxxxxxx, the President of the Board of Management
IN THE NAME AND ON BEHALF OF PIONEER
/s/ Xxxxxxxxxx Xxxxxxxx-Xxxxxxxx
----------------------------------------
Mrs. Xxxxxxxxxx Xxxxxxxx-Xxxxxxxx, the proxy
IN THE NAME AND ON BEHALF OF SERVOTECH
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Mr. Xxxxxx Xxxxxxx, member of the Board of Management
IN THE NAME AND ON BEHALF OF EBRD
/s/ Xxxxxxx Xxxxxxx 27/10/99
----------------------------------------
Ms. Xxxxxxx Xxxxxxx, the proxy
