(Translation from the Polish language) DETAILED CONDITIONS OF SERIES C SHARES ISSUE OF KOPEX S.A. (Share Issue Conditions)

Transcription

1 (Translation from the Polish language) Encl.1 to the Resolution No 072/2009 of the Management Board dated 02 November 2009 DETAILED CONDITIONS OF SERIES C SHARES ISSUE OF KOPEX S.A. (Share Issue Conditions) In connection with Cl.1 Par.8 of the Resolution of the Management Board of KOPEX S.A. with registered seat in Katowice (hereinafter the Company ) dated 02 November 2009 on raising share capital within the in-coming capital and depriving present shareholders of their rights to acquire new shares, the Management Board resolves detailed conditions of Series C shares issue as follows: 1. INTRODUCTION On 25 June 2009 the General Meeting of Shareholders of the Company adopted a resolution on changes in the Statues of Association of the Company and on authorisation of the Management Board to raise share capital of the Company through share issue with option of depriving present shareholders of their rights to acquire new shares in the whole ( Resolution ). The change in Cl.11a of the Statues of Association of the Company resulting from the Resolution was legally valid registered by Decision of the District Court in Katowice, the Eighth Commercial Division of the National Court Register on 24 September On 02 November 2009 the Management Board of the Company basing on the aforesaid authorisation adopted a resolution on raising share capital of the Company within the in-coming capital by share issue in the quantity not exceeding 6,700,000 Series C share of nominal value PLN1.00 each ( Shares ) and depriving present shareholders of their rights to acquire new shares ( Management Board Resolution ). 2. THE ISSUER Dom Maklerski BZ WBK S.A. /BZ WBK Brokerage House S.A./ with registered seat in Poznań ( Issuer ) is the entity offering the Shares. 3. CHARACTERISTIC OF SHARES The Shares in question shall be common bearer shares and they are not subject to any other rights or duties than those ones resulting from the legal provisions, particularly provisions of the Commercial Companies Code regarding common bearer shares. 1

2 The Shares shall be securities of the same kind as the present shares of the Company, implemented and listed on the regulated market operated by the Giełda Papierów Wartościowych w Warszawie S.A. /Warsaw Stock Exchange/ and designated with code PLKOPEX The Shares shall participate in the dividend starting from 01 January 2009, i.e. for the fiscal year ending on 31 December Percentage contribution of the Shares in the total amount of the Company s shares of the same kind listed on the Warsaw Stock Exchange at present shall amount to maximum 9.91%. When registration of the share capital raise is effected, the Shares shalll make maximum % of the share capital and they enable to % of the total number of votes at the General Meeting of Shareholders of the Company. 4. OFFER OF SHARES Share acquisition shall be effected through a private subscription in compliance with Art.431 Cl.2 Item1) of the Commercial Companies Code ( CCM ). The Offer is accomplished as a public offer in compliance with Art.3. in connection with Art.7 Par. 3 Item 2) Law on public offering securities and conditions for implementation of the financial instruments into organised trading system and on publicly traded companies ( Law on Offer ). All the Shares shall be offered for acquisition to investors selected by the Management Board, in compliance with Art.7. Par.3. Item 2) of the Law on Offer ( Authorised Investors ), i.e. to the investors who on the day of determining issue price are going to acquire Shares of the value amounting to at least 50,000 (say: fifty thousand) EUR, calculated in accordance with their issue price. Contract on Share acquisition shall be signed with the Authorised Investors not later than until 18 November 2009, unless the Company resolves otherwise, but basing on the Management Board Resolution it may not be effected later than until 20 November In connection with the Offer and implementing Shares and Share Allotment Certificate in trading on the regulated market operated by Warsaw Stock Exchange ( WSE ), legal regulations do not require preparing any information documents and the Management Board of the Company will submit a proper statement on this matter to the Financial Supervisory Commission. The Company shall submit a motion on registering Shares and Share Allotment Certificate to the Krajowy Depozyt Papierów Wartościowych S.A. /National Depository for Securitites/. Shares and Share Allotment Certificate shall not be in the form of a document (share dematerialisation). When the statement on determining the amount of the share capital raised as the result of paying the Shares by the Authorised Investors is submitted by the Management Board, the Company shall immediately submit a motion on implementing Shares in trading on the regulated market operated by WSE. 2

3 5. TIME SCHEDULE OF THE OFFER 03 November 2009 The publication of the current report including these Share Issue Conditions 05 November 2009 The commencement of creating demand book not later than on 09 November p.m., on the last day of creating demand book- deadline of completion of creating demand book The determination of the Share Issue Price by the Management Board preliminary selection of the Authorised Investors to whom the Share acquisition offer shall be addressed- making a List of the Authorised Investors to whom the Share acquisition offer shall be addressed. on the next working day after completion of creating demand book, i.e. not later than on 10 November 2009 during the succeeding 4 (four) working days, starting from the day when Share acquisition offers are sent, i.e. not later than on 16 November 2009 Sending Share acquisition offers to the Authorised Investors Submitting Share acquisition offers by the Authorised Investors during the succeeding 2 (two) working days, starting from the day when Share acquisition offers are submitted by Investors, i.e. not later than on 18 November 2009 Signing contracts on Share acquisition by the Company The Company reserves itself the right to change any of the aforesaid dates. When changing the dates the Company may not indicate new dates. The Company shall inform the public on changes to any of the aforesaid dates by way of a current report, not later than on the date when the time limit to be changed lapses. 3

4 6. CREATING DEMAND BOOK AND DETERMINING SHARE ISSUE PRICE Issuer, who acts on the grounds of the authorisation of the Company, shall invite selected Authorised Ivestors to submit declarations of interest in the acquisition of Shares ( Declaration ), where shall be included in particular number of Shares they are going to acquire. The invitation may be directed to the Authorised Investor in any form. The Management Board basing on the demand book and on the Issuer s recommendation shall determine Share issue price ( Issue Price ). The Company shall immediately inform the public on the Issue Price in the form of a current report. The Company basing on the Issuer s recommendation shall select the Authorised Investors and then a preliminary Share allocation shall be made and number of Shares preliminary designed for offering to each of them shall be determined. Selection of the Authorised Investors shall be accomplished from among those Authorised Investors who offered price in the Declarations not lower than the Issue Price. Selection of the Authorised Investors and determination of the number of Shares shall be made discretionary. Number of Shares designed for offering to each of the Authorised Investors may not be higher than the number determined in the Declaration submitted by a specific Authorised Investor. The Company shall make a list of the Authorised Investors ( List ) to whom the Share acquisition offer shall be addressed by the Issuer on behalf of the Company. If the Authorised Investor does not accept offer to acquire shares on the date determined in the offer or does not pay for the shares on the date determined, the Offer shall expire. The Company shall not be bound with the previous directed offer and shall have the right to direct an offer to another Authorised Investor, and also offer acceptance date and share payment date shall be determined in it. In such a situation Issuer to acquire shares shall be addressed to the Authorised Investors to on his consent and shall not be binding. The Company reserves itself the right to refuse indicating the Authorised Investors to whom offers to acquire Shares should be directed or to indicate Authorised Investors to whom offers to acquire Shares in a number smaller than determined by a specific Authorised Investor in his Declaration shall be directed without giving any reasons. The demand book shall not be available to the public. When creating the demand book has been completed and the Company has decided on waiving the offer or on its postponing - neither the Issue Price shall be determined after completion of creating the demand book nor no indication of the Authorised Investors to whom the offer on Share acquisition had to be directed shall be made. 8. CONTRACT ON SHARE ACQUISITION To acquire Shares, the Authorised Investor who obtained an offer to acquire Shares shall sign a nonnegotiable contract on Share acquisition with the Company, referred to in Art.441 Cl.2 Par.6 in connection with Art.431 Cl.1 Item1) of the Commercial Companies Code ( Contract ). Contract Template is included in Enclosure 1 to these Issue Conditions. 4

5 Signing Contracts by the Company shall be effected not later than on the days shown in the in Item 5 of the Table included in these Issue Conditions. 9. PAYMENT FOR SHARES The Authorised Investors who have signed contracts on Share acquisition are obliged to effect payment at the whole amount (number of Shares x Issue Price) not later than on the date determined in the offer to acquire Shares. Payment shall be effected on the bank account of the Dom Maklerski BZ WBK S.A. indicated in the offer to acquire Shares. If payment is not effected on the date required or not a full payment is effected, contract on share acquisition shall be terminated without prior notice and the Company shall not be obliged to issue any shares to this Investor. 10. LACK OF REGISTRATION OF RAISING THE COMPANY S SHARE CAPITAL In situation if the Management Board Resolution is not submitted to the District Court in six months from its adopting or if the District Court refuse to register raising the share capital of the Company in connection with Share issue in the entrepreneurs register of the National Court Register, amount of the payment effected shall be returned but it shall not be increased by interest or compensation amounts. 11. OBJECTIONS IN POINT OF LAW Territorial scope of the offer is the Republic of Poland. This document has not been and shall not be approved by the Financial Supervisory Commission or any other supervisory institution. Dom Maklerski BZ WBK S.A. acts on behalf of the Company and informs that through the agreement on carrying out Share C issue it is related to the Company and remuneration resulting from this agreement shall be paid to it. Dom Maklerski BZ WBK S.A does not exclude that in the future it shall prepare recommendations on the Company or financial instruments to be issued by the Company. Dom Maklerski BZ WBK S.A based in Poznań , Plac Wolności 15, is subsidiary of Bank Zachodni WBK S.A. and is supervised by Financial Supervisory Commission. ENCLOSURES Contract template on Share acquisition 5

6 CONTRACT ON SHARE ACQUISITION This contract on share acquisition ( Contract ) has been concluded between: KOPEX Spółka Akcyjna with registered seat in Katowice , Grabowa 1, registered in the Register of Entrepreneurs of the National Court Register kept by the Regional Court in Katowice, Eighth Commercial Division under the number KRS , NIP , REGON , share capital PLN 67,632,538.00, hereinafter called the Company, represented by... and... domiciled at/ address (...), REGON/PESEL (...), hereinafter referred to as Investor represented by... The Company and Investor are both hereinafter referred to as Parties and each of them separately as Party. PREAMBLE Whereas: a) on 25 June 2009 the General Meeting of Shareholders of the Company adopted a resolution on changes in the Statues of Association of the Company and on authorisation of the Management Board to raise share capital of the Company through share issue with option of depriving present shareholders of their rights to acquire new shares in the whole ( Resolution ). The change in Cl.11a of the Statues of Association of the Company resulting from the Resolution was legally valid registered by Decision of the District Court in Katowice, the Eighth Commercial Division of the National Court Register on 24 September b) On 02 November 2009 the Management Board of the Company basing on the aforesaid authorisation adopted a resolution on raising share capital of the Company within the incoming capital by share issue in the quantity not exceeding 6,700,000 Series C share of nominal value PLN1.00 each ( Shares ) and depriving present shareholders of their rights to acquire new shares ( Management Board Resolution ). 6

7 c) Shares shall be offered the investors by a private subscription in compliance with Art.431 Cl.2 Item1 of the Commercial Companies Code ( Investors ); d) The Company is going to submit a motion on implementing Shares and Share Allotment Certificate in trading on the regulated market operated by Giełda Papierów Wartościowych w Warszawie S.A. /Warsaw Stock Exchange/ ; e) On...the Management Board determined Share issue price amounting to PLN (...) ( Issue Price ) through a resolution, basing on the authorisation included in Cl.11a of the Statutes of Association and consent of the Supervisory Board. Having regards for the above, the Parties agreed as follows: Clause 1 1. The Company offers the Investors to acquire Shares in the number of (...) items at the Issue Price and total issue price amounting to PLN (...). 2. The Investor accepts the offer on Share acquisition and acquires Shares in the number of (...) items at the total issue price amounting to PLN (...) ( Acquired Shares ), in compliance with Art. 431 Cl.2 Item1 of the Commercial Companies Code. 3. The Investor obliges himself to pay the amount referred to in the aforesaid Items 1 and 2 on the dates and in accordance with conditions determined in the share acquisition offer. 4. The Investor indicates securities bank account (...) run by (...) as the securities bank account, where the Acquired Shares should be deposited. The Investor also indicates bank account (...) as the bank account, where money for paying the Acquired Shares shall be returned unless the court register raising the share capital in connection with the Share issue. 5. Unless the Investor effects payment resulting from the aforesaid Item 2, this Contract shall be terminated without prior notice and the Company shall not obliged to issue and Shares for the Investor. Clause 2 The Investor declares and approves as follows: (a) he accepts that the Share acquisition offer submitted on the grounds of the Polish legal provisions allowing to accomplish the Offer and to admit the Shares and Share Allotment Certificate to trading in the regulated market operated by Warsaw Stock Exchange without any duty to prepare the Share issue prospectus or the information memorandum; (b) he accepts conditions of Share acquisition; (c) he expresses consent to the Statutes of Association; 7

8 (d) he possesses knowledge and experience necessary for assessment of risks and grounds for investing in Shares, and also is capable to run the risks involved with investing in Shares; (e) he did not act on the basis of any promise, declaration or assurance, was not encouraged to conclude this Contract by any promise, declaration or assurance expressed or enter into this Contract with any promise, declaration or assurance, expressed or implied, in the future or in the past, except for the provisions set out in this Contract; (f) acquiring the Shares is the result of an investment decision taken independently; particularly, this decision is not a result of any investment consulting provided by Dom Maklerski BZ WBK S.A. Clause 3 The Company hereby declares and acknowledges that: (a) it is a legal person duly established and operating pursuant to the law of the Republic of Poland; (b) all the Company s shares, except for the offered Shares, were issued and are fully paid for; (c) the Resolution was adopted duly and is a valid authorisation for the Management Board to make the offer to acquire the Shares. Clause 4 1. Any and all amendments and supplements to this Contract must be done in writing in order to be valid. 2. The matters not covered by this Contract shall be governed by the common Polish law. 3. In the case of any dispute, it shall be resolved by the common court having jurisdiction over the Company's registered office. Clause 5 This Contract has been prepared and signed in three counterparts, one copy for each of the Parties and for the Company's registration court. Investor on behalf of the Company date date 8

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