Exhibit 2.3
DATED 6 APRIL 2001
___________________
(1) EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
(2) PREA, L.L.C.
and
(3) PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
____________________________________________
SHARE PURCHASE AGREEMENT
IN RESPECT
OF SHARES IN THE SHARE CAPITAL
OF PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
____________________________________________
CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
WARSAW FINANCIAL CENTER
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T ▇▇▇(▇)▇▇ ▇▇▇ ▇▇▇▇
F ▇▇▇(▇)▇▇ ▇▇▇ ▇▇▇▇
CHW/RAFS/106594.01
THIS AGREEMENT is made on 6 April 2001
BETWEEN:
(1) EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an international
financial institution established by an international treaty with its seat
in London, England,hereinafter referred to as "EBRD" or the "SELLER"
represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the proxy,
(2) PREA, L.L.C., a limited liability company incorporated under the laws of
the State of Delaware, with its registered seat in Wilmington, Delaware,
the United States of America, herinafter referred to as the "PURCHASER",
represented by ▇▇. ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇,
and
(3) PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A., a joint-stock company with its
seat in Warsaw at ▇▇. ▇▇▇▇▇▇ ▇, registered in the Commercial Register
maintained at the District Court of Warsaw, XVI Commercial Registry
Division, under no. RHB 50879 hereinafter referred to as the "FUND"
represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, under power of attorney.
The Seller, the Purchaser and the Fund shall be jointly referred to as the
"PARTIES".
WHEREAS,
(A) The Seller holds 17,313 registered ordinary D Class Shares with a nominal
value of PLN 100 each in the Fund numbered from 00001 to 17,313 (the
"Shares").
(B) The Seller, together with all the other shareholders of the Fund except the
Purchaser, has requested to exit as shareholder from the Fund by selling
all its Shares to the Purchaser.
(C) Consequent upon the above, the Seller, the Purchaser and the Fund agree to
terminate any agreements entered into between them as shareholders in the
Fund, waiving and releasing any entitlements and obligations arising
therefrom.
THE PARTIES HAVE THEREFORE AGREED AS FOLLOWS:
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1. SALE AND PURCHASE
1.1. SUBJECT TO THE TERMS OF THIS AGREEMENT, THE SELLER SHALL SELL TO
THE PURCHASER AND THE PURCHASER SHALL PURCHASE FROM THE SELLER THE SHARES.
1.2. THE SHARES SHALL BE SOLD WITH THE BENEFIT OF ALL RIGHTS AND
SUBJECT TO ALL OBLIGATIONS ATTACHING TO THEM AS AT THE DATE OF THIS
AGREEMENT.
1.3. THE SELLER WAIVES ALL RIGHTS OF PRE-EMPTION IN RESPECT OF THE
SHARES IN THE FUND TO BE SOLD BY CADIM SERVOTECH B.V., VIENNA LEAS
INTERNATIONAL S.A., TOWARZYSTWO OBROTU NIERUCHOMOSCIAMI AGRO S.A., AND
FUNDACJA NA RZECZ NAUKI POLSKIEJ TO THE PURCHASER PURSUANT TO AN AGREEMENT
BETWEEN CADIM SERVOTECH B.V., VIENNA LEAS INTERNATIONAL S.A., TOWARZYSTWO
OBROTU NIERUCHOMOSCIAMI AGRO S.A., FUNDACJA NA RZECZ NAUKI POLSKIEJ, THE
PURCHASER AND THE FUND, WHETHER UNDER THE STATUTE OF THE FUND, ANY
AGREEMENT BETWEEN THE SHAREHOLDERS IN THE FUND OR OTHERWISE.
2. PRICE AND PAYMENT
2.1. THE SELLER TRANSFERS ALL OF THE SHARES TO BE SOLD BY IT UNDER
THIS AGREEMENT FOR US $500,000 (THE "Price").
2.2. THE PRICE SHALL BE DUE AND PAYABLE TO THE SELLER AT COMPLETION
(AS DEFINED BELOW).
2.3. ANY PAYMENTS UNDER THIS AGREEMENT SHALL BE MADE IN UNITED STATES
DOLLARS.
3. COMPLETION
3.1. A COMPLETION MEETING SHALL TAKE PLACE ON 6 APRIL 2001 (OR SUCH
EARLIER DATE ON WHICH ALL OF THE OBLIGATIONS IN Clause 3.2 HAVE BEEN
FULFILLED) AT THE OFFICES OF CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN WARSAW, 18TH FLOOR, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ FINANCIAL CENTER ("Completion"). TO FACILITATE
COMPLETION, CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (THE "Escrow Agent") OF ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ HAS AGREED TO ACT AS AN ESCROW AGENT ON THE TERMS
OF A LETTER DATED 6 APRIL 2001 FROM THE ESCROW AGENT TO THE SELLER (THE
"Escrow Letter") TO HOLD CERTAIN DOCUMENTS TO DELIVERED BY THE SELLER AT
COMPLETION.
3.2. AT COMPLETION:
2.3.1.18 3.2.1. the Seller shall endorse a statement of the
transfer of the registered shares on the share
certificate of the Shares and shall deliver, upon
receipt of the Price in accordance with CLAUSE 3.4,
the endorsed share certificate to the CMS ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Warsaw office under the terms of the Escrow
Letter;
2.3.1.19 3.2.2. a resolution of the Supervisory Board of the
Fund shall be signed to ratify and approve the sale of
the Shares by the Seller to the Purchaser pursuant to
the terms of this Agreement and the Seller shall
deliver the signed resolution to the Escrow Agent;
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2.3.1.20 3.2.3. each of the Seller, the Purchaser and the Fund
shall execute the termination agreement set out in
SCHEDULE 1 and the Seller shall deliver the executed
termination agreement to the Escrow Agent;
2.3.1.21 3.2.4. the Purchaser shall procure that Harbor Global
Company, Ltd. for itself and on behalf of its
subsidiaries and affiliates, shall deliver to the
Seller in the form of a letter a release from all
obligations and liabilities (if any) (whether past,
present or future) to Harbor Global Company, Ltd.
and/or its subsidiaries and affiliates arising out of
the Fund Documents, or in any way related to the Fund.
For the purpose of this Agreement, the expression
"FUND DOCUMENTS" shall have the definition given to it
in the Subscription and Shareholders Agreement dated
27th October 1999 entered into between the Parties,
Cadim Servotech B.V., Vienna Leas International S.A.,
Towarzystwo Obrotu Nieruchomosciami Agro S.A.,
Fundacja na Rzecz Nauki Polskiej, Pioneer Real Estate
Advisors Poland Spolka z o.o. i Spolka Spolka
Komandytowa, Pioneer Pierwsze Polskie Towarzystwo
Funduszy Inwestycyjnych S.A.;
2.3.1.22 3.2.5. the Seller shall deliver to the Escrow Agent
duly executed and valid letters of resignation of any
persons appointed or nominated by them, whether
jointly or separately, to positions, if any, on the
Management Board, the Supervisory Board and/or the
Investment Committee of the Fund;
2.3.1.23 3.2.6. the Price due to the Seller shall be paid by
the Purchaser by way of electronic transfer to the
bank account details of which have been notified to
the Purchaser in writing;
2.3.1.24 3.2.7. the Purchaser shall provide the Seller with a
copy of a fax or letter from the Purchaser's bank
confirming that the electronic transfer referred to in
CLAUSE 3.2.6 has irrevocably been made to the bank
account of the Seller (the details of such account to
be stated in full in such fax or letter) and the
Purchaser's account has been so debited.
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3.3. OWNERSHIP OF THE SHARES SOLD BY THE SELLER SHALL PASS TO THE
PURCHASER (I) ON PAYMENT OF THE PRICE DUE TO THE SELLER IN ACCORDANCE WITH
Clause 3.2.6 AND (II) UPON DELIVERY TO THE SELLER OF THE LETTER REFERRED TO
IN Clause 3.2.4.
3.4. FOR THE PURPOSE OF THIS AGREEMENT, PAYMENT OF THE PRICE SHALL BE
DEEMED TO HAVE BEEN MADE BY THE PURCHASER WHEN THE BANK ACCOUNT OF THE
SELLER HAS BEEN CREDITED WITH THE PRICE. THE SELLER SHALL PROMPTLY CONFIRM
IN WRITING TO THE PURCHASER THAT THE PRICE HAS BEEN RECEIVED.
4. DECLARATIONS AND RELEASES
4.1. THE SELLER DECLARES WITH RESPECT TO THE SHARES SOLD BY IT THAT
SUCH SHARES ARE FREE FROM ANY LEGAL DEFECTS, THE SHARES ARE PAID FOR, THAT
THEY ARE OWNED BY THE SELLER AND ARE NOT ENCUMBERED WITH ANY THIRD PARTY
RIGHTS.
4.2. EACH OF THE PARTIES AGREES TO WAIVE ALL ITS RIGHTS, OBLIGATIONS
AND CLAIMS (WHETHER PAST, PRESENT OR FUTURE) AGAINST THE OTHER PARTIES
ARISING FROM ITS PARTICIPATION IN THE FUND. IN PARTICULAR, EACH OF THE
PARTIES HEREBY IRREVOCABLY:
2.3.1.25 4.2.1. releases the other Parties from all obligations
and liabilities (whether past, present or future)
arising out of the Fund Documents, or in any way
related to the Fund;
2.3.1.26 4.2.2. releases any third party (including, without
limitation Pioneer Investment Management USA Inc.
(formerly known as The Pioneer Group, Inc.), Harbor
Global Company Ltd. and their respective subsidiaries,
affiliates, employees, officers, directors, agents,
representatives, successors and assigns) from all
obligations and liabilities (whether past, present or
future) arising out of the Fund Documents, or in any
way related to the Fund; and
2.3.1.27 4.2.3. waives any sums due, entitlements or other
rights it may have (whether past, present or future)
under the Fund Documents or in any way related to the
Fund (save as provided for in this Agreement).
5. GENERAL
5.1. THE PARTIES SHALL EXECUTE ANY DOCUMENTATION ACCEPTABLE TO THE
SELLER WHICH MAY BE REQUIRED FOLLOWING COMPLETION TO GIVE EFFECT TO THE
TERMS OF THIS AGREEMENT.
5.2. STAMP DUTY (PODATEK OD CZYNNOSCI CYWILNOPRAWNYCH) DUE UNDER THIS
AGREEMENT SHALL BE BORNE BY THE PURCHASER.
5.3. EACH PARTY SHALL BEAR ITS OWN COSTS OF AND ASSOCIATED WITH THE
NEGOTIATION AND PREPARATION OF THIS AGREEMENT.
5.4. ANY NOTICE TO BE GIVEN UNDER THIS AGREEMENT SHALL BE IN WRITING
AND DELIVERED TO THE ADDRESS OF EACH PARTY SET OUT AT THE HEAD OF THIS
AGREEMENT OR TO SUCH OTHER ADDRESS AS A PARTY MAY NOTIFY THE OTHER PARTIES
IN WRITING.
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5.5. ANY AMENDMENTS TO THIS AGREEMENT REQUIRE WRITTEN FORM, BEING
NULL AND VOID OTHERWISE.
5.6. THIS AGREEMENT HAS BEEN EXECUTED IN ENGLISH AND POLISH. THIS
AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY THE PARTIES
ON DIFFERENT COUNTERPARTS. IN CASE OF ANY DISCREPANCIES, THE ENGLISH
VERSION SHALL PREVAIL. THIS AGREEMENT WILL BECOME EFFECTIVE WHEN THE LAST
PARTY SIGNS THIS AGREEMENT.
5.7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE REPUBLIC OF POLAND.
5.8. ANY CLAIMS OR DISPUTES BETWEEN THE PARTIES 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
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 THE PARTIES.
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.
5.9. 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.
5.10. 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.
Signed by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
for and on behalf of EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
Signed by /s/ ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇
for and on behalf of PREA, L.L.C.
Signed by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
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SCHEDULE 1
THE TERMINATION AGREEMENT
DATED APRIL 2001
_________________________
(1) EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
(2) CADIM SERVOTECH B.V.
(3) VIENNA LEAS INTERNATIONAL S.A.
(4) TOWARZYSTWO OBROTU NIERUCHOMOS CIAMI AGRO S.A.
(5) FUNDACJA NA RZECZ NAUKI POLSKIEJ
(6) PIONEER REAL ESTATE ADVISORS POLAND
SPOLKA Z O.O. I SPOLKA SPOLKA KOMANDYTOWA
(7) PREA, L.L.C.
AND
(8) PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
________________________________________
AGREEMENT
TO TERMINATE THE SUBSCRIPTION AND
SHAREHOLDERS' AGREEMENT IN RESPECT OF
PIONEER POLSKI FUNDUSZ NIERUCHOMOS CI S.A.
________________________________________
CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
WARSAW FINANCIAL CENTER
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F ▇▇▇(▇)▇▇ ▇▇▇ ▇▇▇▇
CHW/RAFS/106594.01
7
THIS AGREEMENT is made on April 2001
BETWEEN:
(1) EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, an international
financial institution established by an international treaty with its seat
in London, England ("EBRD"), represented by Ms. ▇▇▇▇▇ Gnezdilowa, the
proxy;
(2) 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 ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(3) VIENNA LEAS INTERNATIONAL SPOLKA AKCYJNA, a joint-stock company with its
seat in Bielsko-Biala, at ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇,
registered in the Commercial Register maintained at the District Court of
Bielsko-Biala, Commercial Registry Division, under no. RHB 4038,
represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(4) TOWARZYSTWO OBROTU NIERUCHOMOS CIAMI AGRO SPOLKA AKCYJNA, a joint-stock
company with its seat in Warsaw, Poland at Sielecka 22, 00-738 Warsaw,
registered in the Commercial Register maintained at the District Court of
Warsaw, XVI Commercial Registry Division, under no. RHB 51290, represented
by ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as a member of the Board of Management and by
Ms. ▇▇▇▇ Wrzecionko;
(5) FUNDACJA NA RZECZ NAUKI POLSKIEJ, a foundation with its seat in Warsaw,
Poland, registered in the Foundations Register maintained at the District
Court of Warsaw, XVI Commercial Registry Division, under no. RF 1057,
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the proxy;
(6) PIONEER REAL ESTATE ADVISORS POLAND SPOLKA Z O.O. I SPOLKA SPOLKA
KOMANDYTOWA, a limited partnership with its seat in Warsaw, registered in
the Commercial Register maintained at the District Court of Warsaw, XVI
Commercial Registry Division, under no. RHA 376, represented by ▇▇. ▇▇▇▇
▇▇▇▇-▇▇▇▇▇ as a member of the Management Board of PREA Poland Sp. z o.o.
(General Partner);
(7) PREA, L.L.C., a limited liability company incorporated under the laws of
the State of Delaware, with its registered seat in Wilmington, Delaware,
the United States of America represented by ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇. (the
"PURCHASER");
and
(8) PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A., a joint stock company with its
seat in Warsaw, Poland at ul. Stawki 2, registered in the Commercial
Register maintained at the District Court of Warsaw, XVI Commercial
Registry Division, under no. RHB 50879 (the "FUND"), represented by ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇ under power of attorney;
together hereinafter referred to as the "PARTIES".
WHEREAS,
(A) On 27 October 1999 the Parties and Pioneer Pierwsze Polskie Towarzystwo
Funduszy Inwestycyjnych S.A. executed a Subscription and Shareholders'
Agreement in respect of Pioneer Polski Fundusz Nieruchomosci S.A.
8
(B) Pioneer Pierwsze Polskie Towarzystwo Funduszy Inwestycyjnych S.A. has,
prior to the date of this Agreement, ceased to be a shareholder in the
Fund.
(C) On 6 April 2001, the Purchaser entered into various agreements (the "SHARE
PURCHASE AGREEMENTS") with all the other shareholders in the Fund pursuant
to which the Purchaser agreed to acquire all the shares in the Fund which
it did not already own.
THE PARTIES HAVE THEREFORE AGREED AS FOLLOWS:
1. That, conditional upon all the parties to the Share Purchase Agreements
performing all the obligations to be performed by them at Completion (as
defined) of the Share Purchase Agreements, the Subscription and
Shareholders' Agreement entered into between them and Pioneer Pierwsze
Polskie Towarzystwo Funduszy Inwestycyjnych S.A. on October 27 1999 shall
be terminated with immediate effect, save for clause 25 thereof (non-
disclosure of information).
2. This Agreement may be signed by the Parties on any number of counterparts
and by the Parties on different counterparts. This Agreement has been
executed in English and in Polish. In the case of discrepancies, the
English version shall prevail.
Signed by
for and on behalf of EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
Signed by
for and on behalf of CADIM SERVOTECH B.V.
Signed by
for and on behalf of VIENNA LEAS INTERNATIONAL S.A.
Signed by
for and on behalf of TOWARZYSTWO OBROTU NIERUCHOMOSCIAMI AGRO S.A.
Signed by
for and on behalf of FUNDACJA NA RZECZ NAUKI POLSKIEJ
Signed by
for and on behalf of PIONEER REAL ESTATE ADVISORS POLAND SPOLKA Z O.O.
I SPOLKA SPOLKA KOMANDYTOWA
Signed by
for and on behalf of PREA, L.L.C.
Signed by
for and on behalf of PIONEER POLSKI FUNDUSZ NIERUCHOMOSCI S.A.
9
