TENDER RULES FOR SALE OF 88% OF CAPITAL OF THE COMPANY ALUMINIJ D.D. MOSTAR

Transcription

1 BOSNA I HERCEGOVINA FEDERACIJA BOSNE I HERCEGOVINE AGENCIJA ZA PRIVATIZACIJU U FEDERACIJI BOSNE I HERCEGOVINE BOSNIA AND HERZEGOVINA FEDERATION OF BOSNIA AND HERZEGOVINA AGENCY FOR PRIVATIZATION IN FEDERATION OF BOSNIA AND HERZEGOVINA BOSNA I HERCEGOVINA FEDERACIJA BOSNE I HERCEGOVINE ALUMINIJ d.d. BAČEVIĆI bb, MOSTAR BOSNIA AND HERZEGOVINA FEDERATION OF BOSNIA AND HERZEGOVINA ALUMINIJ d.d. BAČEVIĆI bb, MOSTAR TENDER RULES FOR SALE OF 88% OF CAPITAL OF THE COMPANY ALUMINIJ D.D. MOSTAR February 2007

2 Contents: 1. Subject of the Tender Definitions Tender Documentation and Procedure Timetable Communication Due Diligence Bids Non-Binding Bids Binding Bids Participation Fee and Tender Deposit Document Submission Bid Receipt and Receipt Confirmation Modifications or Withdrawal of Bids Official Representative of the Bidder and Explanations of the Bids Currency Tender Criteria and Tender Evaluation Process Evaluation of Non-Binding Bids Evaluation of Binding Bids Notifications to Successful Bidder and Other Bidders Negotiations No Agreement until Share Purchase Agreement is signed Disclaimer The Right of the Seller to Negotiate or Cancel the Sale, or Modify the Rules

3 1. Subject of the Tender Name of the Company: Location: Capital Offered: Status of other capital: Aluminij d.d. Mostar Baćevići bb, Mostar, Bosnia and Herzegovina 88% of total capital Aluminij d.d. Mostar in the amount of KM ,00 12% under foreign investor ownership 2. Definitions The following definitions shall be used in the document with the following meanings: Company Aluminij d.d. Mostar; Capital - 88% of the Company capital being sold; Seller - Agency for Privatisation in the Federation of Bosnia and Herzegovina, for 44% of state capital, and Aluminij d.d. for 44% of unnominated capital designated for compensation and work benefits of employees, acting jointly; Sale - The privatisation procedures in accordance with the applicable rules and in accordance with the Agreement on resolving open issues between the Government of Federation of Bosnia and Herzegovina and Aluminij d.d. Mostar, signed in Mostar on November 7, and Annex no.1. to the Agreement dated February 9, 2007; Bidder or Prospective Buyer Any legal entity which has signed the Statement of Confidentiality with the Seller and complies with the Tender Rules a company participating in the privatisation process for the purpose of purchasing the Company capital; If the Bidder is a consortium of two or more legal entities, each member of the consortium must individually fulfill all the conditions set by the Tender Rules; Non-Binding Bid non-binding proposal where the Bidder provides evidence of its international references in aluminum production and processing and presents framework elements of the proposal in accordance with Section 7.1. of Tender Rules. Binding Bid Binding proposal placed by the Bidder to acquire the capital in accordance with Section 7.2. of the Tender Rules; Successful Bidder - The bidder with the most favorable bid as evaluated on the basis of the criteria set out in the Tender Rules; Bid Deadline The ultimate bid submission deadline. 3

4 3. Tender Documentation and Procedure Tender Documentation shall include the following: Tender Rules, Short Company profile ( Teaser ), Statement of Confidentiality, Information Memorandum of the Company, Draft Share Purchase Agreement and Bid template. Along with the Call for the Tender, the following will be published on the Seller web site: Tender Rules, Short Company profile ( Teaser ) and Statement of Confidentiality. Upon receipt of the signed Statement of Confidentiality and evidence of payment made for tender participation fee from Section 8., Bidders will receive the: Information Memorandum of the Company Binding Bid Template and Process Letter Information Memorandum will serve as basis for non-binding proposal submitting. At the beginning of the Due Diligence performance, the Bidders will receive: Draft Share Purchase Agreement and Process Letter. 4

5 4. Timetable The approximate time schedule and duration of the procedures are presented below: Procedure From To Duration Publishing of Public Invitation to Bid 5th March 2007 Deadline for Submission of Non-Binding Bids 23 rd April 2007 Evaluation of Non-Binding Bids 24 th April 3 rd May 9 days Invitation for Submission of Binding Bids 3 rd May 2007 Due Diligence Visits 7 th May 15 th June 39 days Deadline for Submission of Binding Bids 26 th June 2007 Formal Validation of Bids 27 th June 3 rd July 6 days Evaluation of Bids 4 th July 10 th July 6 days Announcement of Winning Bidder 11 th July Negotiations with the Successful Bidder 16 th July 30 th July 14 days Signature of share Purchase Agreement 31st July Communication All communication in connection with signing of the Statement of Confidentiality and Due Diligence visits shall be directed to the following address of the Seller s advisor: Mr. Ivica Kresic Deloitte savjetodavne usluge d.o.o. Heinzelova Zagreb Croatia Tel: +385 (1) Mob: Fax: +385 (1) ikresic@deloittece.com 5

6 6. Due Diligence Every Prospective Bidder shall have the opportunity to visit the Company during the allotted period, review the business records, inspect the location and facilities, put forward questions to the management, and to carry out appropriate additional activities deemed necessary, under the following terms and conditions: All visits for the purpose of Due Diligence are arranged through the Seller s advisor, and that they take place by making appointments only in the period specified in Section 4 above; All costs in connection with the participation in the Tender, including those of Due Diligence, are borne exclusively by the Bidder; All requests for discussions with the management or the employees of the Company, or for the purpose of obtaining copies of documents, or for the purpose of any other activity in connection with the due diligence are to be arranged through the Seller s advisor; The Prospective Bidder shall have the opportunity to review the information about the Company in data room arranged specifically for this purpose at Company s premises; All decisions regarding multiple visit requests by the same Bidder shall be made solely by the Seller and its advisor. 7. Bids Bid is to be submitted in a sealed envelope which will include the data from Section 9. and comprising all information and documents specified in Call for Tender and Tender Rules Non-binding bid Non-binding bid will contain information on identification of the prospective buyer and provide evidence of its international references in aluminum production and processing, such as: Organization and Ownership information Business information Production information Market and Sales information In the non-binding bid, the prospective buyers are also invited to provide framework non binding indications of key elements of the binding proposal (price, investment plan, employment plan and business plan), as well as other information considered relevant, including readiness to sign long term contracts on insurance of parts of major inputs in aluminum production. Audited annual reports on business for the last two years are required along with the nonbinding proposal. 6

7 Non-binding proposal can be delivered to the Seller electronically to the following address: with copy to: and also via fax to fax number: , or in an envelope to the address in Section 9, labeled: Non-binding proposal for the purchase of 88% of Capital of Aluminij d.d. Mostar, until the deadline specified in Section Binding proposal The binding proposal must comprise following elements: Annex A Declaration; Annex B Legal Authority; Annex C Participation Fee and Tender Deposit; Annex D Declaration of funds Annex E The Bid Form comprising: Price, Investments, Employment, Business plan, Previous cooperation and existing relationship and Qualifications of Bidder; Annex F Draft Share Purchase agreement The Bid is formally correct if: o it is received within the period specified in Section 4 and Section 9, o proof of paid Tender deposit is included, specified in Section 8 and o all required tender documentation and evidence of fulfillment of all tender requirements (A, B, C, D, E, F) is submitted, including all required Annexes. Bids will be valid 180 (one hundred and eighty) days from the Bid Submission Deadline. 8. Participation Fee and Tender Deposit I) Participation Fee In order to be able to take the tender documentation, the Bidder shall make an irrevocable payment of EUR 10,000 (ten thousand euro) for the participation and development of Tender documentation. 7

8 Payment of Tender Participation Fee is to be performed in the following way: BAM Payment Bank name: UPI Banka Sarajevo Account Description: Agency for Privatisation in the Federation of Bosnia and Herzegovina, Sarajevo, Alipasina 41 Account No.: Purpose: Payment of Participation Fee for the Tender for Aluminij Tender EUR Payment Bank name: UPI Banka Sarajevo Account Description: Agency for Privatisation in the Federation of Bosnia and Herzegovina, Sarajevo, Alipasina 41 Account No.: SWIFT UPBKBA22 ACC Purpose: Payment of Participation Fee for Tender Aluminij d.d. Mostar All costs related to the transfer and conversion of the Participation Fee shall be borne by the Bidders. (II) Tender Deposit The Bidder shall, together with the Bid, make a payment of EUR 200, (two hundred thousand euro) for the Tender deposit on the account of Agency for Privatization in the Federation of Bosnia and Herzegovina and provide evidence of this payment or provide unconditional, irrevocable and first demand guarantee of a first class bank in the amount of EUR 300, (three hundred thousand euros) with 180 day validity from the Binding Bid Submission Deadline. Tender deposit will be returned to all bidders in accordance with Section 15. Payment of Tender Deposits to be remitted in the following way: BAM Payment Name of the bank: UPI Banka Sarajevo Account Description: Agency for Privatisation in the Federation of Bosnia and Herzegovina, Sarajevo, Alipasina 41 Account No.: Purpose: Payment of Tender Deposit for Aluminij Tender 8

9 EUR Payment Bank name: UPI Banka Sarajevo Account Description: Agency for Privatisation in the Federation of Bosnia and Herzegovina, Sarajevo, 41 Alipasina Account No.: SWIFT UPBKBA22 ACC Purpose: Payment of Tender Deposit for Aluminij Tender In addition, the Bidder shall deliver the instructions for the back transfer of Tender Deposit. All costs related to the transfer, conversion and the back transfer of the Tender Deposit shall be borne by the Bidders. 9. Document Submission Each Bidder shall deliver the complete documentation for the tender in both Croatian and Bosnian language. Additionally, the Bidder can (but is not obliged to) provide the documentation in English language as well, and in case of conflict between the two versions, the prevailing version shall be the one in English language. The Bid will be delivered in a closed, sealed, envelope. Each binding bid must to be received at the following address: Agency for Privatisation in the Federation of Bosnia and Herzegovina Tender Committee offers Alipašina Sarajevo Bosnia and Herzegovina The following should be stated on the envelope: Offer for purchase of 88% capital of Aluminij d.d. Mostar Do not open The Bidder, or the representative thereof, shall sign each Bid with a ball-point pen. The Signatory of the Bid shall initial with a ball-point pen or an ink pen each page of the Bid and each and any changes in the text. All bids need to be received by local time, by the last date of Bid submission specified in Section Bid Receipt and Receipt Confirmation Agency for Privatisation in the Federation of Bosnia and Herzegovina shall note on each received Bid the date and time of receipt. Agency for Privatisation in the Federation of Bosnia and Herzegovina shall issue the official receipt confirmation to the Bidder. 9

10 11. Modification or Withdrawal of Bids The Bidder may modify or withdraw its Bid until two days prior to the expiry of the Bid Deadline by sending a written notice to the address specified in Section 9. Any request for the withdrawal or modification of the Bid received by the Seller after the expiry of the above Deadline shall be rejected and returned to the Bidder, with the exception described in Section Official Representative of the Eligible Bidder; Clarification of Bids Each Bidder shall identify in its Bid the representative who shall act as the official contact person for any communication with the Seller. Such person shall be at the Seller's disposal in the office of the Bidder (or any other location specified by the Bidder). No communication whatsoever shall take place between any Bidder and the Seller from the expiry of the Due Diligence period to the announcement of the Successful Bid, except for the delivery/withdrawal or modification of Bids prior to the expiry of the Bid Deadline. Following the expiry of the Bid Deadline and until the successful Bidder is announced, any communication with the Seller for the purpose of any clarification in connection with the Bid shall be initiated by the Seller. 13. Currency All figures in the Bid shall be expressed in either the Convertible Marks or in Euros. The exchange rate is EUR : KM = 1 : Bids in other currencies are not allowed. 14. Tender Criteria and Tender Evaluation Process Non-binding proposals submission The Evaluation of non-binding Bids for this Tender shall be carried out in such a manner that the Seller will evaluate if the bid meets the minimal requirements of the tender, i.e.: that the Bidder, or each of the consortium members of the Bidder, if the Bidder is consortium of two or more legal entities, possesses irrefutable international references in aluminum production or processing (or both areas) taking over all current employees, in accordance with point of the Rules, chapter Employment cash payment 10

11 Proposals not meeting these minimum requirements shall not be taken into further consideration. The Seller shall, with the assistance of the Advisor, evaluate the amount and the quality of the framework elements of the Non-Binding Bid (price, investments, employment and business pan), as well as other information delivered in the Non-Binding Bid. The Seller plans to select 3-4 highest-quality non-binding proposals and invite the selected bidders to perform due diligence of the Company and deliver Binding Bids Binding Bids Evaluation Binding bids evaluation will be performed by allocating the total points (100 points) on the basis of the following criteria: Criteria Points Price 35 Investment Plan 15 Employment Plan 10 Business Plan 10 Previous cooperation and existing relationship 15 Qualifications 15 TOTAL 100 The Bidder evaluated as the best for each individual criterion will be awarded the maximum number of points. All other bids will be evaluated against the best bid and will be given proportional number of points. The Seller may, with an explanation, reduce the number of points or disqualify the Bidder that the Seller deems incapable of meeting the obligations under the proposed Investment plan, Employment Plan and Business Plan. Each Bidder, or each of the Bidder consortium members, must posses irrefutable international references in aluminum production or processing (or in both areas). 11

12 The criteria are defined as follows: PRICE total price offered for the Capital being sold, i.e. 88% of the Company capital. Out of total price offered, 10% of funds will be directed to investment in environment projects of Aluminij d.d. Mostar. Successful Bidder shall, out of total price offered, settle total amount needed for back payment of work benefits of employees according to Agreement on resolving open issues between the Government of Federation of Bosnia and Herzegovina and Aluminij d.d. Mostar number 11820/06 dated November 8 th, Distribution of funds realized in sale will be defined by the Bid Form and Share Purchase Agreement, Section 16. Evaluation of the binding bids by price criteria will be performed using following formula: BrB (c) = (C/C max ) * 35, where: BrB (c) - number of points assigned by the price criterion C price offered by the Bidder C max - highest price offered INVESTMENTS Direct investments includes only investments in the Company by the Bidder not provided out of the Company's funds, within three years from the signing of the Share Purchase Agreement. The investments are defined as investments in money, items and rights, in accordance with applicable regulations. In connection with the timing of investments and risks, the value of the investment commitments under the Investment plan will be reduced for the purposes of evaluation, as follows: Year Schedule % of planned investments included 2 80 % of planned investments included 3 60 % of planned investments included 12

13 Integral part of Investment Plan shall be a section on investments in environment projects. Environment investments specified in the Article 14 and 15 of the Agreement of solving open issues between the Government of FBiH and Aluminij d.d. no /06, dated 8 th November 2006, shall be financed from the money generated by selling of 88% of the Company Capital in the amount of 10% of total price and shall be invested directly in the Company. Environment investments for elimination of already existing environmental damages, shall not be accepted as an investment. The best-ranked Bidder is required to deliver an unconditional, irrevocable, payable on first call, bank, and guaranteeing execution of investment commitments. The exact amount and deadlines of the bank guarantee will be determined during negotiations. In case the Seller evaluates that a Bidder is capable to meet all the requirements of the Investment plan, evaluation of the binding bids by investment criteria will be performed using following formula: BrB (i) = (I/I max ) * 15, where: BrB (i) represents the number of points assigned by the investment criterion I -discounted present value of recognized investments during three years offered by the Bidder I max - highest discounted present value of recognized investments during three years offered by one of the Bidders EMPLOYMENT The Bidder is obliged to: take over all employees of the Company on the day of the signing of Share Purchase Agreement within one year from the date of Share Purchase signature, solve the status of former employees who were younger than 50 years of age as of 7 th September 2000, and did not enter into permanent employment contract, i.e. temporary contract in continuity over 6 months. The investor will solve their status by employing them, if deemed necessary, taking into consideration the criteria of age structure, qualifications, specialization, and professional knowledge necessary for a certain job or by indemnification, in accordance with the regulations in FBiH. 13

14 The employment plan of the Bidder shall be evaluated from the aspect of the total number of employees with permanent employment contracts for the first three years and from the aspect of its compliance with the Investment Plan and Business Plan of the Bidder. For additional employment, former employees of Aluminij d.d. will have the priority, taking into account necessary qualification and age structure. Any activities related to the payment of severance payment are to be presented in detail in the Business Plan. During proposal evaluations by employment criterion, only employees actually working shall be evaluated. There will be no reduction by years on employment commitments in the first 3 years. In case the Seller evaluates that Bidders are capable of fulfilling all obligations from the Employment plan, evaluation of the binding bids by employment criterion, will be performed using following formula: BrB (z) = (Z/Z max ) * 10, where: BrB (z) represents the number of points assigned by employment criterion Z total average number of employees working with permanent contracts during first three years for which the Bidder obliges to provide employment Z max - highest average number of actually working employees with permanent contracts during first three years offered by one of the bidders. The manner of the guarantee for the performance of the taken obligation will be included in the Draft Share Purchase Contract. BUSINESS PLAN Every Bidder has to deliver a detailed three-year Business Plan for the Company (directly related to and serves as basis for Investment Plan and the Employment Plan referred to above). This Plan should include the projected balance sheets, income statements and of sources and uses of funds specified. The plan should also describe in detail the entire planned strategic development of the privatised Company, including, for example, the plans in connection with the: Market development (both domestic and export) New product development; Development of technology and production; Management and organisational development. If the Bidder is ready to guarantee, at the moment of signing of the Share Purchase Agreement, to ensure some of the major inputs in the aluminum production by signing long-term supply agreements, this will be valued additionally within the Business Plan criterion. 14

15 Every Business Plan provided by Bidders shall be evaluated as follows: Category Points Very good 10 Good 8 Average 6 Poor 4 Non-satisfactory 2 Non-existent 0 PREVIOUS COOPERATION AND EXISTING RELATIONSHIP Every Bidder needs to deliver the proof of previous and current cooperation with Aluminij. Previous cooperation and current relationship include business relationship between Aluminij d.d. and the Bidder in the role of vendor, customer, creditor, joint investments partner, and technical assistance provider. Previous cooperation and current relationship relate to the period of the last 10 years (from 1997 onward), and to the signed contracts for the period of the next 3 years (until 2010). Evaluation of the previous and current cooperation will be performed in the manner that total amount of the contracts entered into by Aluminij d.d. and the Bidder will be added for the specified time period. The tender committee maintains the right of adjustments, with an explanation, in case of special circumstances. Formula used to calculate points by this criterion will be: BrB (s) = (S/S max ) * 15, where: BrB (s) - presents the number of points assigned by the criterion of previous cooperation and current relationship S- total value of business relationships in the last 10 years and signed contracts for the next 3 years that the Bidder has entered into with Aluminij d.d. S max - highest total value of business relationships one of the Bidders has demonstrated. 15

16 QUALIFICATIONS Each Bidder shall deliver appropriate evidence of competency and qualifications in the aluminum industry, qualifications for the fulfillment of the various obligations included in the Bid, knowledge of the Bosnian-Herzegovina market, and its suggestion as to the modifications of the draft Share Purchase Agreement. Qualifications will be evaluated through three sub-categories, in the following manner: a) sub-criterion of competency in aluminum industry and qualifications for fulfillment of obligations undertaken (5 points) includes the evidence from the Bidder for: access to the global aluminum market; access to global technologies for production and processing of aluminum; experience in solving environmental issues in aluminum production in accordance with global standards; recommendations from the banks and their willingness to support the project of purchase and investment in Aluminij d.d.; audited financial statements of the Bidder, or each member of the bidding; consortium, for the three preceding years. The formula to be used for the calculation of points under this criterion will be as follows: BrB (k) = (K/K max ) * 5, where: BrB (k) - presents the number of points assigned by the qualifications and competencies criteria K presents the level of proven competency and qualifications of the Bidder K max presents the highest proven level of competency and qualification of a Bidder on the tender b) Sub-criterion of knowledge of the market of Bosnia and Herzegovina (5 points) includes evidence of: evidence on business operations of the Bidder within Bosnia and Herzegovina for the last 10 years cooperation with Bosnia-Herzegovina companies in the last 10 years The formula to be used for the calculation of points under this criterion will be as follows: 16

17 BrB (bh) = (BH/BH max ) * 5, where: BrB (bh) presents the number of points assigned by the criterion of knowledge of the market in Bosnia and Herzegovina B level of the market knowledge BH max - highest proven level of the local market knowledge of one of the Bidders participating in the tender. c) Sub-criterion of requested modifications to the Share Purchase Agreement (5 points) includes: the degree of discrepancy between the modifications suggested by the Bidder and the draft Share Purchase Agreement suggested by the Seller, The formula to be used for the calculation of points under this criterion will be as follows: BrB (u) = (U min/ U) * 5, where: BrB (u) presents the number of points assigned by the criterion of suggestions for modifications to the draft Share Purchase Agreement by the Seller; U - presents the level of the suggested modifications made by the relevant Bidder U min presents the lowest suggested level of modifications to the Agreement made by a Bidder participating in the tender. 15. Notifications to Successful Bidder, and other bidders The Seller shall notify all bidders on the results of the tender within 5 working days from the day on which the Tender Commission and the Seller have made the decision. In the event of unsuccessful final negotiations with the Successful Bidder after 14 days following the start of such negotiations, the Seller will commence negotiations with the second Most Successful Bidder. Tender deposits of all unsuccessful Bidders shall be refunded not later than 30 days from the date of notification by the Tender Commission of the Seller that their Bids have not been accepted. Tender Deposits of the Successful Bidder and the second Most Successful Bidder shall be refunded no later than 120 days from the date of notification. Tender deposits will be treated in accordance with applicable local regulations. 16. Negotiations The purpose of negotiations is to reconcile the differences between the draft Share Purchase Agreement proposed by the Seller and the changes proposed by the Bidder. The key elements of the Bid (i.e. the Price, the Investment Commitments, the Employment Plan and the Business Plan, as well as other obligations) shall form an inseparable part of the Share Purchase Agreement. 17

18 The negotiations with the Successful Bidder shall be concluded as specified in Section 4. If the Successful Bidder fails or refuses, for any reason whatsoever, to agree to the Share Purchase Agreement within 14 days as specified in these Rules, the Tender Deposit, provided as part of a successful bid, shall be retained by the Seller, and the Successful Bidder shall not be able to exercise any further rights thereof in respect of the Company capital. By delivering the Bid, the Bidder acknowledges to have read this provision. In the event of misunderstanding of the provision and on request, the Bidder may obtain the appropriate legal advice so as to become aware of the consequences of this provision. 17. No Agreement until the Execution of the Share Purchase Agreement No agreement shall be deemed reached in relation to purchase of capital until the Seller and Successful Bidder sign the Share Purchase Agreement.. Until such time, the Seller shall have no obligations to the Successful Bidder in connection with Company or its capital. After signing of Share Purchase Agreement, the obligations of the Seller towards the Successful Bidder shall be explicitly defined in the Share Purchase Agreement. 18. Disclaimer The Seller gives no representation or assurance, either explicit or implicit, in connection with the Capital or the Company except those defined in Share Purchase Agreement. The Seller explicitly waives any warranty, assurance or representation, either oral or written, made or implied in connection with the Company or the Capital. The Prospective Bidders are to perform independent Due Diligence of the Company and the capital structure on their own and shall deliver their Bids based exclusively on their own independent research and findings, without relying on any information obtained from the Seller, including information obtained from the Information Memorandum. 19. The Right of the Seller to Negotiate or Cancel the Sale, or Modify the Rules The Seller reserves the right to change the deadlines specified in this Tender, including, but not limited to, any or all deadlines, at any time without prior notice. Any such subsequent notification shall be delivered to all Bidders as soon as possible. The Seller reserves the right to provide extended deadline of 10 days for potential proposal improvement, after the preliminary proposal evaluation. The Seller reserves the right to cancel the sale at any time or for any reason, prior or after the expiry of the bid submission deadline subsequent to the delivery of the appropriate notification to the Bidders. The Seller shall not bear any costs or responsibility due to cancellation. In the event of cancelled sale, the Tender Participation Fee shall be returned to all Bidders within five (5) working days. 18