RULES OF TENDER for Sale of the State Capital in the Company

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 БОСНА И ХЕРЦЕГОВИНА ФЕДЕРАЦИЈА БОСНЕ И ХЕРЦЕГОВИНЕ АГЕНЦИЈА ЗА ПРИВАТИЗАЦИЈУ У ФЕДЕРАЦИЈИ БОСНЕ И ХЕРЦЕГОВИНЕ Alipašina 41, Sarajevo,Phones , , Fax: , apfbih@bih.net.ba RULES OF TENDER for Sale of the State Capital in the Company UNIS UDRUŽENA METALNA INDUSTRIJA d.d. SARAJEVO November, 2011

2 Table of Contents 1. Subject of Tender sale Definitions The Tender Package The Tender Timetable 4 5. Communication Due Diligence Visits The Bid Participation Fee, Deposit and Documentation Fee 6 9. Documentation Submission Log in and Receipt of Bid Modification/Withdrawal of Bid Official Representative of Eligible Bidder Criteria and Evaluation of Bids Criterua Scoring Methodology of Bids evaluation Notification of Bidders Negotiations No Agreement until Share Purchase Agreement is Signed Disclaimer of Representations and Warranties Seller s Right to Negotiate, Alter Rule of sale, or Cancel the Sale Page 2 of 12

3 1. Subject of Tender sale Company Name: Location: Shares on Sale: Other Shares: Unis Udružena metalna industrija d.d. Sarajevo Envera Šehovića, 54 Sarajevo 51,00 % of the subscribed share capital 49,00 % of the subscribed capital is a private capital 2. Definitions The following definitions will be used in this document: The Company Unis Udružena metalna industrija d.d. Sarajevo State Capital 51,00 % of the subscribed capital; Shares of the Company The Seller Agency for Privatization in the Federation of Bosnia and Herzegovina The Sale the Privatization procedures in accordance with the Regulations on Procedures for Sale through Public Collecting of Bids (tender) in a large-scale privatization (Official Gazette of the Federation of Bosnia and Herzegovina No.77/04). Potential Bidder Any physical or legal local or foreign entity that has signed a Confidentiality Statement and that has otherwise complied with the Rules of Tender. Bidder or Potential Buyer Any physical or legal local or foreign entity that participate in the privatization procedure for purchase of the state capital of the Company. The Bid The Bidder s proposal to acquire the state capital in accordance with the Rules of Tender. Successful Bidder - the Eligible Bidder with the best Bid as judged by the criteria stated in these Rules of Tender. Bid Deadline Bid submission deadline. 3. The Tender Package Together with this documentation (Tender Rules), the Tender Package also includes: Information Memorandum of the company, Draft to the Share Purchase Agreement, Bid Form, Short Profile of the company, Confidentiality Statement and Request for Tender documentation Page 3 of 12

4 4. Timetable This document sets out the sequence of procedures and their duration. Procedure Duration From To Days Public Invitation to Bids Due Diligence Visits (DDV) Submission of Bids deadline Determination on the formal validity of the Bid Informing the Bidder on the formal-legal validity of the Bid Evaluation of Bids Announcement of the Winning Bidder days since Bids submission by the authorized person 3 days since a day of the Bid validity determination 15 days since determination of formal validity of Bids 10 days after determination of evaluated Bids scores Negotiations with the Bidder days since starting negotiations Signing of the Share Purchase Agreement days after closing negotiations, and after execution of decision on proclaiming the Winner Deadlines in the previous table may last as maximum deadlines what as defined by the Tender Rules, but the Tender Commission may perform these activities in a shorter timeframe. 5. Communication All issues related to this Tender (signing the Confidentiality Statement, requesting the documentation, Due Diligence Visits, submission of Bids, or any other subjects) should be arranged with the Seller: Title of the Seller: Agency for Privatization in the Federation of Bosnia and Herzegovina Address: Alipašina 41, Sarajevo, Bosnia and Herzegovina Contact person: Mrs. Sabaheta Čongo Phones/fax: , ; Fax: sabaheta.congo@apf.gov.ba Page 4 of 12

5 Before taking over the documentation, the potential Bidder is obliged to sign the Confidentiality Statement and to pay the amount of 5.000,00 KM on behalf of making expenses and taking over the documentation -Tender Package cited in the Item 3 of these Rules. The mentioned amount is paid as it is determined in the Item 8 of these Rules 6. Visit to the Company for verification of information Each Bidder will have an opportunity to visit the company, to examine the books and records in the book-keeping department, to inspect the site and facilities, to ask questions related to management and to perform additional inspections as the Eligible Bidder deems necessary, under the following conditions: All Due Diligence Visits (DDVs) must be arranged with the Seller and undertaken by arranged schedule only in the period cited in the Section 4, All expenses related to participation on Tender including Due Diligence are paid exclusively by the Bidder. All requests for coming into the contact with the management of the Company or employees or providing documentation copies, or any other activities related to Due Diligence will be arranged by the Seller. The Potential Bidder will be able to review data of the company in a Data Room set aside for that purpose Requests for multiple DDVs by a single Bidder are at the sole discretion of the Seller. 7. The Bid Bids are submitted in a sealed envelope identified by a subject of sale title, specifying all requirements and documentation, anticipated by the Public Invitation and the Tender Rules within the following Schedules: 1.Schedule A Declaration 2.Schedule B Legal Authority 3.Schedule C Participation Fee and Deposit 4.Schedule D Declaration of Funds 5.Schedule E The Bid comprising: Price Investments Employment Business Plan Qualifications of the Bidder 6.Schedule F Share Purchase Agreement (proposed changes to the Draft of SPA) The Bid is valid 180 days since a deadline for submission of Bids. The Bid is formally valid: 1. if submitted on time 2. if the Remittance form of the paid Deposit and the Participation fee are submitted 3. If all Tender documentation is submitted as asked (A, B, C, D, E and F). Page 5 of 12

6 8. Deposit, Participation Fee and Fee for taking over the Tender Documentation a) Participation Fee Bidder is required to make a non-refundable participation fee of 2.000,00 KM for tender participation. This amount shall be transferred to the following account: Participation Fee (KM): Bank Name: Account Holder: INTESA SANPAOLO BANKA d.d. Sarajevo Agencija za privatizaciu u Federaciji Bosne i Hercegovine Sarajevo,Alipašina 41 Account Number: Purpose of Payment: The Tender participation Fee Foreign Currency Payment for participation fee Bank Name: INTESA SANPAOLO BANKA d.d. Sarajevo Account Holder: Agencija za privatizaciju u Federaciji Bosne i Hercegovine Sarajevo, Alipašina 41 Account Number: SWIFT: UPBKBA22 ACC IBAN BA Purpose of Payment: The Tender participation Fee The bank foreign currency expenses rate is borne by the Bidder B) Deposit Bidder is required to pay a deposit of KM ,00 or to ensure a bank guarantee for the same amount. The deposit guarantee must be unconditional, irrevocable and payable on the first request of the Agency, valid at least 180 days, since the deadline for submission of Bids. This amount shall be paid on this account: Deposit (KM) Bank name: Account Holder: INTESA SANPAOLO BANKA d.d. Sarajevo Agencija za privatizaciju u Federaciji Bosne i Hercegovine Sarajevo, Alipašina 41 Account No Purpose of Payment: Deposit for the Tender participation fee Foreign currency: Bank name: INTESA SANPAOLO BANKA d.d. Sarajevo Account Holder: Agencija za privatizaciju u Federaciji Bosne i Hercegovine Sarajevo, Alipašina 41 Account No. SWIFT: UPBKBA22 ACC IBAN BA Purpose of Payment: Deposit for the Tender participation Page 6 of 12

7 c) Participation fee for taking over the Tender documentation Bidder is required to pay the amount of 5.000,00 KM for taking over the Tender documentation including the Information Memorandum on behalf of expenses for a documentation preparation.. This amount should be paid on the following account: Participation fee for taking over the documentation (KM): Bank Name: INTESA SANPAOLO BANKA d.d. Sarajevo Account Holder: Agencija za privatizaciju u Federaciji Bosne i Hercegovine Sarajevo, Alipašina 41 Account Number: Purpose of Payment: Participation fee for taking over the documentation Foreign Currency Payment for taking over the documentation Bank Name: INTESA SANPAOLO BANKA d.d. Sarajevo Account Holder: Agencija za privatizaciju u Federaciji Bosne i Hercegovine Sarajevo, Alipašina 41 Account Number: SWIFT: UPBKBA22 ACC IBAN BA Purpose of Payment: Participation fee for taking over the documentation Any bank fees or the exchange rate expenses shall be borne by the Bidder. 9. Documentation Submission Each Bidder must submit its Bid in one of the official languages in BiH. The Bid may be submitted individually or by mail, no longer than at hours at Central European time.. Each Bid must be signed in ink by the Bidder or its authorized representative. The signer of the Bid must initial in ink each page of the Bid and any alterations to the text. Bid must be submitted in a closed envelope with a full title of the company which is the subject of sale. 10. Log in and Receipt of Bid The Seller will stamp each Bid received with the date and time of its receipt which will be entered into the Register of Bids. 11. Modification or Withdrawal of Bid Bidder may modify or withdraw a Bid prior to the Bid Deadline by providing written notice to the Seller at the address notified and to the attention of the individual to whom Bid is to be submitted. Page 7 of 12

8 Any request to withdraw a Bid or its modification received by the Seller after a deadline shall not be accepted but will be returned to the Bidder. Errors made in Bids may not be corrected after the deadline for submission of Bids. 12. Official Representative of the Bidder Each Bidder shall identify in its Bid a representative who shall serve as the Bidder s official contact to whom all communications with the Seller will be channeled. After the expired deadline for submission of Bids until the moment of proclaiming the Tender winner, any communication with Bidders for clarification of Bids will be initiated by the Seller. 13. Criteria and Evaluation Each references to the amount of currency in the Bid (e.g. price and investments) must be expressed in Bosnian Convertible Marks (KM) (1 EUR =1,95583 KM) Criteria Bids will be evaluated according to the 5 criteria selected into two groups - a quantitative and a qualitative criteria. A quantitative criteria includes the price, investments and employment. A qualitative criteria includes the Business Plan and Bidders qualification. a) Price The Bidder offers a price for 51,00% of the capital of the company Unis Udružena metalna industrija d.d. Sarajevo. The price is paid exclusively in cash. Bank expenses and foreign currency exchange rate expenses bear the Bidder. b) Investments Investments will be performed within a period of three years after closing the Share Purchase Agreement by the potential Buyer, not provided from resources of the company. The potential Buyer may invest in cash or material/current assets (land and buildings, facilities and equipment, furniture and office equipment, vehicles, civil engineering works, etc.). Investment into equipment is possible if the equipment is acceptable for the Seller (function, use, condition). Investments from retained earnings of the company are not Investments in this context. Taking in consideration of the time and a risk, the value of investments which are the subject of the Bid during the evaluation process will be decreased in the following way: - First year No decreased investments value - Second year 0,8 % of the planned Investments value will be evaluated - Third year 0,6% of the planned Investments value will be evaluated - Fourth year and the following years: Investments value is not evaluated Page 8 of 12

9 The Successful Bidder will be obliged to provide unconditional, irrevocable and payable Bank guarantee of the Bank which is acceptable to the Seller within a deadline and for the amount determined during the negotiation period. c) Employment Each Bidder is obliged to retain the existing workers for the three years period since a day of signing the Share Purchase Agreement. Bids with a fewer number of employees will not be evaluated according to this criteria. According to this criteria will be evaluated a total number of workers. d) Business Plan The potential Bidder should submit the detailed three years Business Plan of the company. The Business Plan anticipates a Balance of Success, a Balance Sheet, Funds resources and their use. The Plan shall identify the major planned strategy of motivation for the new privatized company. e) Qualification of the Bidder Each Bidder shall submit the adequate evidence of its competence and qualification to realize different obligations contained in its Bid. Such evidence material contains and at the same time not limited by the following: Financial Statements for the previous three years (possibly with performed financial audit) Financial Auditor Statement (if available9. Evidence of the relevant experience of the Bidder in the Company market sector Banks, Buyers or other Business partners recommendations Evidence on the International Business experience Evidence of the former participation in the privatization process Other evidence and information required for evaluation of the Business competence. In case of the Consortium Bid, each member of the Consortium shall submit information related to the above mentioned items Evaluation of Bids The Seller may upon its own discretion and without any explanation to disqualify the Buyer whom deems is not in the possibility to fulfill obligations according to the SPA Draft. Maximum number of scores for the all previous criteria (a-e) is 100. The number of scores for each of the five criteria is in the following text. Quantitative criteria: Price 50 points Investments 15 points Employment 15 points Page 9 of 12

10 b) Qualitative criteria: Business Plan 10 points Business rating 10 points In total: 100 points Methodology of Evaluation Evaluation of Bids will be performed following this methodology. For each criteria, all Bids will be evaluated relative to the best-ranked Bid. It means that the best-ranked Bidder upon the individual criteria will achieve the maximum number of points. Formula for evaluation of the each Bid is defined as follows. a) Price per a share: 50 points according to the following formula: Br.c=(C/Cmax)*50, where is: Br.c a number of points per a price C price offered by the Bidder Cmax the biggest price offered by the Bidder on the Tender. b) Investments: 15 points according to the following formula: Br.i=(I/Imax)*15, where is: Br.i a number of points for Investments I discounted current value of Investments for the three years period Imax the biggest discounted current value of Investments for the three years period offered by the Bidder on the Tender. c) Employment: 15 points according to the following formula: Br.z=(Z/Zmax)*15, where is : Br.z a number of points for employment Z a total number of workers given by one of the Bidders in its Employment Plan Zmax the biggest total number of workers given by one of the Bidders in its Employment Plan d) For the Business Plan each of the Bidders will achieve one of the following grades: Grades No. of points Very good 10 Good 7,5 Medium 5 Low 2,5 Very low 0 Page 10 of 12

11 e) For Bidders qualification each Bidder will achieve one of the following grades: Grades No. of points Very good 10 Good 7,5 Medium 5 Low 2,5 Very low Notification of the Bidder The Seller will after determined evaluation of Bids results bring a Decision on proclaiming the winner or a Decision on proclaiming the Tender unsuccessful, and submit the results to Bidders. The Seller will submit to the Tender winner an invitation to start negotiations, and inform the failed Bidders that their Bids are valid until the closing date of Share Purchase Agreement. Bidders with not accepted Bids will be refunded by the amount of deposit or a bank guarantee within 30 days since a day of bringing the Decision. 15. Negotiations The purpose of negotiations will be an adjustment of differences between the Draft to the Share Purchase Agreement proposed by the Seller and comments made by the Bidder together with a Bid. Negotiations with the Bidder will be closed within 20 days since starting the negotiations. If the Tender winner refuses to close the SPA according with a Bid within 20 days, a deposit will not be refunded, i.e. it will be retained by the Seller. If negotiations with the best-ranked Bidder are not finalized successfully within the period of the Bids validity, the Tender Commission will start negotiations with the second-ranked Bidder. In the exceptional cases the Management Board of the Agency for privatization in FBiH may extend the duration of negotiations, but the same can not be longer than 40 days since the day of starting negotiations. 16. No Agreement until Share Purchase Agreement Signed No agreement will be deemed to have been reached concerning the purchase of Shares until the Seller and the Tender winner have signed the Share Purchase Agreement. Until that time, the Seller has no obligations to the Tender winner with respect to the Enterprise as a subject of sale. Prior to the signature of the Share Purchase Agreement, the Tender winner is required to provide evidence issued by the competent authorities, that no hindrances exist with regard to the provisions referred to in Article 12. Section 2, Items 2, 3, 4 and 5 of the Law on Privatization of Enterprises (Official Gazette of the Federation of Bosnia and Herzegovina, Nos. 27/97, 8/99, 32/00, 45/00, 61/01, 27/02, 33/02, 28/04, 44/04, 42/06 and 4/09). Page 11 of 12

12 The Tender winner is obliged to sign the Share Purchase Agreement, after the brought Decision on proclaiming the Winner within the five (5) days period since the day of finalization of negotiations. Obligations of the Seller and the Buyer will be those expressly set forth in the Share Purchase Agreement. 17. Disclaimer of Representations and Warranties The Seller does not make any representations or warranties with respect to the shares or the Company (except those set forth in the Share Purchase Agreement). The Seller also expressly disclaims any warranty in oral or written form expressed or implied concerning the Company or its shares. The potential Bidders are expected to undertake their own independent due diligence inspection concerning the Enterprise and the Shares and to submit their Bids based solely on their own independent investigation and findings, and not in reliance on any information provided by the Seller. 18. The Seller s Right to Alter Rules of Sale, or to Cancel the Sale The Seller reserves the right to alter the tender timetable including but not limited to any or all deadlines at any time prior to the Bid Deadline without a prior notice. The additional written notice will be delivered to all Bidders as soon as possible via fax or the expressed mail. The Seller reserves the right to cancel the Sale at any time and for any reason before or after the Bids submission Deadline after the written notice (fax or the expressed mail) delivered to Bidders. The Seller will neither bear the expenses nor a responsibility for sale cancellation. In case of cancellation a deposit for tender participation will be returned to all Bidders within five (5) working days. Page 12 of 12