THE COMMON DRAFT TERMS OF THE CROSS-BORDER MERGER BETWEEN AMMERVIEL LIMITED AND UNIMOT EXPRESS SPÓŁKA Z OGRANICZONĄ ODPOWIEDZIALNOŚCIĄ

Transcription

1 THE COMMON DRAFT TERMS OF THE CROSS-BORDER MERGER BETWEEN AMMERVIEL LIMITED AND UNIMOT EXPRESS SPÓŁKA Z OGRANICZONĄ ODPOWIEDZIALNOŚCIĄ

2 These common draft terms of the cross-border merger (hereinafter: THE MERGER TERMS ) have been agreed on 28 th of August 2014 between: and 1. Ammerviel Limited, a company established under the laws of Cyprus, with the office in Nicosia, Cyprus, at the address: Kyvelis street 7, 2 nd floor, Office 102, Nicosia (postal code: 1087), Nicosia, Cyprus, entered in the register of companies managed by the Minister of Trade, Industry and Tourism of the Republic of Cyprus under file number: HE , 2. Unimot Express spółka z ograniczoną odpowiedzialnością, a company established under the laws of Poland, with the office in Warsaw, Poland, at the address: al. Solidarności 75 lok. 25 ( Warsaw), entered in the business register of the National Court Register managed by the District Court for the capital city of Warsaw in Warsaw, the 12th Department for Commercial Issues, under file KRS , NIP and REGON I. DEFINITIONS For the needs of these Terms of Merger, unless the context requires otherwise, the following phrase will have the following meanings: Merging Company: shall mean Ammerviel Limited, Merged Company: shall mean Unimot Express spółka z ograniczoną odpowiedzialnością; Merging Companies: shall means jointly the Merging Company and the Merged Company; KSH: shall mean the Polish Act of 15 September 2000 on the Commercial Companies Code (Dz. U , the unified text); PSHC: shall mean the provisions of the Law of Commercial Companies of Cyprus, Chapter 113 as amended, currently effective; Directive: shall mean the Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies; Date of Merger: the date on which the Merging Company shall by no means subrogate the Merged Company. Merger: understood pursuant to Art KSH in reference to Art and through Section 201I, Chapter 113 PSHC, which shall mean in reference to the Merging Companies the merger through acquisition of the entirety of the assets along with all the liabilities of the Merged Company by the Merging Company.

3 II. RECITALS Whereas: The Merging Companies intend to complete the cross-border merger for the purpose of establishing the holding group in which the dominant position will be obtained by the Merging Company and for the purpose of restructuring and obtaining effective management of the activities by way of optimum using of the resources of the Merging Companies. The Merged Company is the owner of all the shares in the initial capital of the Merging Company and therefore this cross-border merger is recognised as a downstream merger as a result of which the Merging Company will acquire 100% of its own shares and subsequently the Merging Company will redeem the shares. The cross-border merger will not infringe the art KSH. The Merging Companies are not in liquidation, have not declared bankruptcy and there are no premises to declare bankruptcy pursuant to national regulations of each of the Merging Companies. The Merging Companies intend to complete the cross-border merger with the consequence of transferring the entirety of the assets of the Merged Company to the Merging Company in return for the shares which the Merging Company shall issue to the shareholders of the Merged Company in accordance with the share exchange ratio adopted in the Distribution Plan. As a result of the above, the Merged Company shall be dissolved without liquidation and the Merging Company shall by no means subrogate the Merged Company as of the date of the merger; The Merging Companies intend to complete the cross-border merger pursuant to: And a) Title IV ( Mergers, Divisions and Transformation of Companies ) Section I ( Mergers of Companies and Partnerships ) Chapter 1 ( General Provisions ) and Division 1 of Chapter 2¹ ( Cross-border Mergers of Companies ) KSH, i.e. Art. 491 ff, in particular Art KSH, which implement the provisions of the Directive b) Sections 201 I 201 X PSHC, Chapter 113 of the Republic of Cyprus, amended by Section II of the Law N. 186 (I)/2007 related to Cross-border Mergers of Companies, which implement the provisions of the Directive. III. TYPE, FIRM, OFFICE AND REGISTER AND REGISTER ENTRY NUMBER OF THE MERGING COMPANIES The Merging Company:

4 AMMERVIEL LIMITED, a company established under the laws of Cyprus, with the office in Nicosia, Cyprus, at the address: Kyvelis street 7, 2 nd floor, Office 102, Nicosia (postal code: 1087), Cyprus, entered in the register of companies managed by the Minister of Trade, Industry and Tourism of the Republic of Cyprus under file number HE , with the registered initial capital in the amount of EUR 2,000 (two thousand Euro), which is divided into 2,000 (two thousand) shares with the nominal value of EUR 1.00 (one Euro) each, assumed in entirety and paid by the Merged Company. Merged Company UNIMOT EXPRESS spółka z ograniczoną odpowiedzialnością, a company established under the laws of Poland, with the office in Warsaw, at the address: Solidarności 75 lok. 25 ( Warsaw), entered in the business register of the National Court Register managed by the District Court for the capital city of Warsaw in Warsaw, the 12th Department for Commercial Issues, under file KRS , NIP and REGON , with the initial capital in the amount of PLN 4,535, (four million five hundred and thirty five), which is divided into 4,535 (four thousand five hundred and thirty five) shares with the nominal value of PLN 1, (one thousand Polish Zloty) each, assumed and paid by: a) ZEMADON Limited with 2,256 (two thousand two hundred and fifty six) shares for the total value of PLN 2,256, (two million two hundred and fifty six thousand) b) Piotr Sikorski with 2,256 (two thousand two hundred and fifty six) shares for the total value of PLN 2,256, (two million two hundred and fifty six thousand) c) Adam Sikorski with 23 (twenty three) shares for the total value of PLN 23, (twenty three). IV. METHOD OF THE CROSS-BORDER MERGER 4.1. Merger Pursuant to Art KSH in reference to Art. 516¹ KSH and Section 201 P PSHC, the resolution of the Meeting of Shareholders of the Merged Company shall constitute the basis for the merger, including the consent of the Meeting of Shareholders to the Merger Terms, and the resolution of the Board of Directors of the Merging Company, including consent of the Board of Directors to the Merger Terms. The Merger of the Merging Companies shall be done by way of transferring to the Merging Company (in which the Merged Company is the sole shareholder) of the entirety of the assets of the Merged Company, and dissolving of the Merged Company without its liquidation, in accordance with the provisions of Art KSH in reference to Art. 516¹ KSH and Section 201 I PSHC and the provisions of Art. 2 (2) (c) of the Directive.

5 As a result of the merger, the Merging Company, in accordance with the provisions of Art KSH in reference to Art. 516¹ KSH and Section 201 U PSHC, shall subrogate by no means the Merged Company as of the date of the merger, i.e. the date set forth in Art. 12 of the Merger Terms. After the merger of the Merging Companies, the Merging Company shall not change its legal form, name and statutory office. The Merging Company shall participate in the merger as the Merging Company or as the Company resulting from the merger, as such terms are used and translated in the relevant provisions of KSH, PSHC and of the Directive. The Merged Company confirms and expresses consent for the Merging Company to acquire all the rights and obligations of the Merged Company in reference to the merger. Therefore, the Merging Company shall be entitled to execute and claim all the relevant rights on his own behalf and may properly apply for entries and registrations in any courts of law and bodies when these rights are not transferred by way of universal succession in reference to the merger Increasing the initial capital of the Merging Company As the Merged Company is the owner of all the shares in the initial capital of the Merging Company, the cross-border merger is the downstream merger. Pursuant to Art KSH in reference to Art. 516¹ KSH, the Merger shall be completed by way of increasing the initial capital of the Merging Company from the amount of EUR 2,000 (two thousand) to the amount of EUR 1,084, (one million eighty for thousand sixe hundred seventy-four 82/100), i.e. by the amount of EUR 1,082, (one million eighty-two thousand six hundred seventy-four 82/100), which constitutes the amount of PLN 4,535, (four million five hundred and thirty five thousand) as at the exchange rate of 01 August 2014, published by the National Bank of Poland, in the amount of: , by way of issuing 4,535 (four thousand five hundred and thirty five) shares with the nominal value of EUR (two hundred and thirty-eight 74/100) each, for the total value of EUR 1,082, (one million eighty-two thousand six hundred seventy-four 82/100). The increase of the initial capital of the Merging Company shall be covered in entirety from the assets of the Merged Company. The initial capital of the Merging Company is EUR 2,000, is divided into 2,000 shares with the value of EUR 1 each and has been paid in entirety. All the shares of the Merging Company are at the disposal of the Merged Company. On the date of the Merger, the initial capital of the Merging Company shall be increased up to the amount of EUR 1,084, (one million eighty-four thousand six hundred seventy-four 82/100), by way of establishing 4,535 (four thousand five hundred and thirty five) shares with the nominal value of EUR (two hundred and thirtyeight 74/100) each. Afterwards, the initial capital of the Merging Company in the amount of EUR 2,000 shall be decreased by way of redemption of 2,000 own shares, taken over from the Merged Company as of the Date of the Merger. V. SHARE EXCHANGE RATIO

6 5.1. Share exchange ratio As the Merged Company is the owner of 100% shares in the initial capital of the Merging Company, subsequently the redemption of shares of the Mrged Company will take place, and the current shareholders of the Merged Company shall assume the shares in the increased initial capital of the Merging Company in proportion to the shares currently owned, i.e. with one share in the initial capital of the Merging Company per one share in the initial capital of the Merged Company. As a result of the merger, the current shareholders of the Merged Company shall assume the shares in the initial capital of the Merging Company as follows: As a result of the merger, the current shareholders of the Merged Company shall assume the shares in the initial capital of the Merging Company as follows: a) ZEMADON Limited shall assume 2,256 (two thousand two hundred and fifty six) shares for the total value of EUR 538, (five hundred and thirty-eight thousand five hundred and ninety-one 93/100); b) Adam Sikorski shall assume 23 (twenty three) shares for the total value of EUR 5, (five thousand four hundred and ninty 96/100); And c) Piotr Sikorski shall assume 2,256 (two thousand two hundred and fifty six) shares for the total value of EUR 538, (five hundred and thirty-eight thousand five hundred and ninety-one 93/100); 5.2. The method of valuation of the assets of the Merging Companies The valuation of the new shares of the Merging Company assigned for the shareholders of the Merged Company is determined by way of reference to the adjusted value of the net assets of the Merged Company based on the Balance Sheet dated 1 st of August 2014 and the Balance Sheet of the Merging Company dated 1 st August 2014 except for the shares of the Merging Company which are held by the Merged Company, which are subject to redeeming The conditions for assigning the shares and the date of which the shares entitle to participation in the profit of the Merging Company The new shares in the initial capital of the Merging Company shall be issued to the current shareholders of the Merged Company at no cost and no other remuneration shall be assigned in return for the Merging Company subrogating by no means to the Merged Company, in particular no additional cash payments shall be paid for the benefit of the current shareholders of the Merged Company. The current shareholders of the Merged Company shall be authorised to participate in the profit of the Merging Company as of the Date of Merger.

7 No other conditions have been agreed upon for issuing any shares in the increased initial capital of the Merging Company to the current shareholders of the Merged Company. VI. EXCHANGE RATIO FOR OTHER SECURITIES OF THE MERGED COMPANY FOR SECURITIES OF THE MERGING COMPANY As the Merged Company has not issued any securities other than own shares, the Merger Terms do not include any information related to allocation of any rights to owners of such securities. The Merging Company is not an issuers of any securities except for own shares, either. Therefore, the Merger Terms do not set forth any date of which other securities are entitled to participation in the profit of the Merging Company. VII. RIGHTS GRANTED BY THE MERGING COMPANY TO SHAREHOLDERS OR ENTITIES ENTITLED FROM OTHER SECURITIES IN THE MERGED COMPANY Pursuant to these Merger Terms, the Merging Company shall not grant any other rights to the shareholders or to entities entitled from other securities in the Merged Company, due to the fact that the shareholders of the Merged Company are not granted any special rights or entitlements resulting from the shares, and there are no other securities which would grant rights to other authorised entities. VIII. SPECIAL BENEFITS GRANTED TO EXPERT AUDITORS AUDITING THE MERGER TERMS OR MEMBERS OF THE BODIES OF THE MERGING COMPANIES On the basis of Art KSH and Section 2010 (5) PSHC and on the basis of the consent expressed by all the shareholders of the Merging Companies, the Merger Terms shall not be subject to auditing by an expert auditor. No benefits have been paid or granted, and no payment or granting of any benefits is planned for any member of the management of the Merged Company as well as for any member of the Board of Directors of the Merging Company or other bodies of the Merging Companies. IX. CONDITIONS FOR EXECUTION OF RIGHTS OF CREDITORS AND MINORITY SHAREHOLDERS OF EACH OF THE MERGING COMPANIES AND THE ADDRESS AT WHICH FULL INFORMATION ON THESE CONDITIONS MAY BE OBTAINED FREE OF CHARGE 9.1. Protection of creditors The Merging Company, as of the date of the merger, i.e. the date set forth in Art of the Merger Terms, shall by no means subrogate the Merged Company by way of universal succession, in accordance with the provisions of Art KSH in reference to Art. 516¹ KSH, Section 201U

8 PSHC and Art. 14.1a) of the Directive. Therefore, as of the date of the merger, i.e. the date set forth in Art. 9 of the Merger Terms, the creditors of the Merged Company shall become the creditors of the Merging Company. On the Date of the merger, the creditors of the Merged Company shall become the creditors of the Merging Company, thus the Merger shall not affect the rights of the creditors of the Merged Company, including the nature of the amount, conditions and circumstances of the claims Protection of minority shareholders There are no minority shareholders in the Merging Company. The minority shareholder in the Merged Company, i.e. Adam Sikorski, with 23 (twenty three) shares with the nominal value of PLN 1, (one thousand Polish Zloty) each, for the total value (twenty three thousand) PLN, which constitutes 0,5% in the initial capital of the Merged Company. If the shareholder of the Merged Company votes against the resolution of the Meeting of Shareholders of the Merged Company on the merger and demands recording of the objection, he shall be entitled to demand the buyback of his shares. The shareholder demanding the buyback of his shares shall be obliged to submit a written demand of the buyback with the Merged Company within ten days of the date of passing the resolution of the Meeting of Shareholders of the Merged Company on the merger. The Merged Company shall complete the buyback of the shares on its own account or on the account of the shareholders in the Merged Company. The price of the buyback of the shares may not be lower than the value of the shares agreed for the purposes of the merger Addresses at which information may be obtained on the conditions of execution of the rights of creditors and minority shareholders of each of the Merging Companies The Merging Company: Kyvelis street 7, 2 nd floor, Flat/Office 102 Nicosia P.C Cyprus The Merged Company: ul. Solidarności 75/ Warsaw

9 Poland X. PROCEDURES TO DEFINE PRINCIPLES FOR PARTICIPATION OF EMPLOYEES IN DETERMINING THEIR RIGHTS TO PARTICIPATE IN THE BODIES OF THE MERGING COMPANY 10.1 Principles of participation The Merged Company is not obliged and does not have any system of participation of employees in the meaning of the Directive and of the Polish act of 25 April 2008 on participation of employees in a company resulting from a cross-border merger. The Merging Company does not employ employees and is not obliged to have a system of participation of employees in the meaning of the Directive and of Section 201 W PSHC. The employees of the Merging Companies do not have and shall not obtain as a result of the merger any rights to select or appoint a specific number of persons in the board of directors or any rights to recommend veto members of the board of directors or of the supervisory board. Therefore, the Merging Companies are not obliged to assume any procedures specified with the relevant law, according to which the principles are determined for participation of in determining their rights to participate in the Merging Company. XI. PROBABLE EFFECT OF THE MERGER ON EMPLOYMENT IN THE MERGING COMPANY 11.1 Employees of the Merging Company The Merging Company does not employ any employees as at 1 st of August Employees of the Merged Company The Merged Company employs 51 (fifty one) employees as at 1 st of August Effect of the merger on employment in the Merging Company On the date of the merger, the Merging Company shall take over all employment relations existing in the Merged Company along with any rights and duties. Termination of the relationship of employment of the transferred employees due to the Merger is statutorily excluded. The tenure in the Merged Company shall be regarded as the tenure in the Merging Company. Pursuant to Art. 23¹ of the act of 26 June 1974 on the Labour Code and Labour Law of Cyprus the employees of the Merged Company shall be notified in writing about transferring their employment by virtue of the law for the benefit of the Merging Company.

10 XII. THE DATE OF WHICH OPERATIONS OF THE MERGING COMPANIES SHALL BE REGARDED FOR ACCOUNTING PURPOSES AS ACTIVITIES FOR THE ACCOUNT OF THE MERGING COMPANY, TAKING INTO ACCOUNT THE REGULATIONS OF THE ACCOUNTING ACT OF 29 SEPTEMBER Date of Merger According to Section 201 S PSHC, the Merger shall become effective as of the Date of the Merger, i.e. the date on which the court of the Republic of Cyprus competent for the Merging Company approves the Merger by issuing the appropriate statements according to Section 201S PSHC and after registration and publication of the entry in the official Bulletin of the Republic of Cyprus according to Section 201T PSHC. The transactions shall be regarded as made for the account of the Merging Company as of the Date of Merger. For the purposes of the Polish law, pursuant to Art. 44a.1 and 44a.3 of the Accounting Act of 29 September 1994, the Merger shall be effective as of the Date of Merger. According to the point B19-B27 MSSF3 and with the reference to the art of the Accounting Act of 29 September this cross-border merger shall be recognised as the downstream merger. As of the Date of Merger, all the transactions of the Merged Company shall be regarded for the accounting purposes as transactions of the Merging Company. XIII. INFORMATION VALUATION OF ASSETS AND LIABILITIES TRANSFERRED TO THE MERGING COMPANY ON THE SPECIFIED DAY IN THE MONTH PRECEDING LODGING OF THE APPLICATION FOR DECLARATION OF THE MERGER TERMS Valuation of assets and liabilities of the Merged Company For the purposes of valuation of assets and liabilities of the Merged Company, pursuant to Art. 516³ Clause 13) of KSH, the accounting valuation has been assumed based on the values disclosed in the balance sheet of the Merged Company drafted as at 1 st of August 2014, i.e. as at a specified day in the month preceding lodging of the application for declaration of the Merger Terms. Pursuant to the accounting method, the value of the assets of the Merged Company is assumed to be equal to the net assets value of the Merged Company, i.e. PLN (twenty eight million five hundred thirty-one thousands eight hundred twenty-four Polish Zloty and 00/100). The value of the assets and liabilities of the Merged Company as at 1 st August 2014, determined based on the balance sheet of the Merged Company prepared as at this date, which constitutes Annex to the Merger Terms. XIV. THE DATE OF CLOSING THE BOOKS OF ACCOUNT OF THE COMPANIES IN THE MERGER, USED TO SET THE MERGER TERMS, TAKING INTO ACCOUNT THE REGULATIONS OF THE ACCOUNTING ACT

11 According to the point B19-B27 MSSF3 and with the reference to the art of the Accounting Act of 29 September this cross-border merger shall be recognised as the downstream merger The date of closing the books of account of the Merging Company The books of account of the Merging Company shall not be closed The date of closing the books of account of the Merged Company The books of account of the Merged Company shall be closed. The valuation of the assets and liabilities of the Merged Company has been based on the values disclosed in the balance sheet of the Merged Company drafted as at 1 st August 2014 and constitutes Annex no 4 to the Terms of Merger. For the purposes of these Terms of Merger, the balance sheet of the Merging Company as at 1 st August has been used. For the purposes of these Terms of Merger, the balance sheet of the Merged Company as at 1 st August has been used. XV. THE DRAFT OF THE DEED OF THE MERGING COMPANY The merger of the Merging Companies shall be conducted with the increase in the initial capital of the Merging Company, as a result of which the Deed of the Merging Company shall be changed. The draft of the deed of the Merging Company, including the proposed changes, constitutes Annex no 5 to the Terms of Merger. XVI. OTHER PROVISIONS The costs and expenditures incurred or which will be incurred in reference to the Merger shall be charged on the Merging Companies as follows: If the Merger is not concluded, the Merging Companies shall incur their own costs, When the Merger is completed, the Merging Companies shall incur their own costs and expenditures incurred by the Date of Merger. The Management of the Merged Company and the Board of Directors of the Merging Company shall undertake all legally possible actions to complete the Merger.

12 On behalf of the Merging Company: On behalf of the Merged Company: Annexes 1. The draft of the deed of the Merging Company. 2. The draft od the deed of the Merged Company. 3. The draft of the resolution of the Board of Directors of the Merging Company. 4. The draft of the resolution of the Meeting of Shareholders of the Merged Company. 5. Valuation of assets and liabilities of the Merged Company. 6. Project of Merging Company Articles of Association. 7. The statement including the information about the accounting condition of the company drafted for the purposes of the merger as at 1 st August 2014.