CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF...
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.
Table of Contents
Page
SCHEDULES
SCHEDULE 1 INFORMATION ABOUT THE SELLER AND THE GROUP
SCHEDULE 2 COMPLETION STATEMENT PRINCIPLES
SCHEDULE 3 FORM OF THE DRAFT COMPLETION STATEMENT
SCHEDULE 6 COMPLETION ARRANGEMENTS
SCHEDULE 10 THE INTELLECTUAL PROPERTY RIGHTS
SCHEDULE 11 INFORMATION TECHNOLOGY
SCHEDULE 12 POST-COMPLETION INTEGRATION
SCHEDULE 13 GROUP TELEPHONE NUMBERS
i
THIS NEW SHARE PURCHASE AGREEMENT (this “Agreement”) is dated 2 February 2021 and is made BETWEEN:
1. | FASTEN CY LIMITED, a limited liability company incorporated and existing under the laws of the Republic of Cyprus under registration number HE 355819, having its registered office at Xxxxxxxxxx 0, Xxxxxx 000, 0000, Xxxxxxx, Xxxxxx, with further particulars set out in Part A of Schedule 1 (Information about the Seller and the Group) (the “Seller”); and |
2. | MLU B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated and existing under the laws of the Netherlands, having its corporate seat at Amsterdam, its registered office at Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands and registered with the trade register of the Chamber of Commerce under number 69160899 (the “Buyer”), |
each a “Party” and together the “Parties”.
BACKGROUND
IT IS HEREBY AGREED:
| 1.1 | Definitions. In this Agreement (including its Schedules), unless the context requires otherwise, the following words and terms shall have the following meanings: |
“Accounts” means the audited consolidated accounts of the Group as at, and for the period starting from [***] and ending on, the Accounts Date, comprising the consolidated balance sheet, profit and loss account and cash flow statement of the Group, accompanied by the auditor’s report, prepared in accordance with the IFRS and Applicable Law;
“Accounts Date” means [***];
“Affiliate” means, in relation to any person (the “first person”):
1
| (a) | a person that directly, or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, the first person; |
| (b) | is an executive officer, director or employee of such person; |
| (c) | a legal entity that shares the same investment management or investment advisory company with, or acts solely as bare nominee holder on behalf of the first person, or a fund for which the first person acts as bare nominee; |
| (d) | upon any liquidation or other dissolution of the first person which is not a natural person, any person that is a beneficial owner of the interests held in the entity being liquidated or dissolved; |
| (e) | with respect to a first person that is a natural person, any person that is a member of his/her Family; and |
| (f) | without limitation, each of [***] (as each defined in Part A of Schedule 1 (Information about the Seller and the Group)) shall be deemed Affiliates of each other; |
provided, however, that for the purposes of this Agreement (a) the Seller shall not be deemed an Affiliate of the Buyer nor, after Completion, of any Group Company, and (b) after Completion, the Buyer shall be deemed an Affiliate of the Group Companies;
“Agreed Completion Statement” has the meaning given to it in paragraph 3.1(b) of Schedule 2 (Completion Statement Principles);
“Agreed Software” means (a) [***] and (b) [***] to be installed on (i) the Servers, (ii) computers used by the AMP Employees and (iii) such other computers as are shown in the Inventory Lists as having [***] installed;
“Agreed Software Costs” has the meaning given to it in Clause 14.5.1;
“Agreed Software Licences” has the meaning given to it in Clause 14.5.1;
“Agreed Statement” has the meaning given to it in Clause 19.1.2;
“AMP Employee” means a Transferred Employee holding an administrative and/or management position at a Group Company;
“Announcement” means any public announcement, communication or circular, including any document, statement or disclosure published, issued or made;
“Applicable Law” means any law, statute, order, decree, binding decision, licence, permit, consent, approval, agreement, or regulation of any Governmental Authority having jurisdiction over the matter or person in question, or other legislative or administrative action of a Governmental Authority, or a final, binding, or executive decree, injunction, judgment or order of a court that affects and has the authority to affect the matter or person in question;
“A/R Dispute Notice” has the meaning given to it in Clause 4.6.2;
“A/R Shortfall” has the meaning given to it in Clause 4.6.1;
“A/R Statement” has the meaning given to it in Clause 4.6.1;
“Auditors” means PricewaterhouseCoopers (“PWC”), as auditor of the Company in connection with the Accounts;
2
“Big Four Firm” means Deloitte Touche Tohmatsu, EY, KPMG, PWC, or any successor in title to any of their respective accounting and/or valuation businesses;
“Business” means the business of (i) the booking and provision of information services for arranging passenger and cargo transportation through telecommunication (including, but not limited to, over the Internet, communication devices and/or mobile applications), (ii) taxi ride-hailing, ride-sharing services and related services for the arrangement of passenger and cargo transportation, in each case in the Russian Federation, as carried out by the Former Group as of the date of this Agreement. The Parties acknowledge and agree that Business includes the Vezet Dobro Business as conducted as of the date of this Agreement;
“Business Day” means a day other than a Saturday or Sunday or public holiday on which banks are ordinarily open for the transaction of normal banking business in Nicosia, Cyprus; Moscow, Russian Federation, or Amsterdam, the Netherlands (save in Clause 19.10, where “Business Day” shall have the meaning given to it in Clause 19.10.2);
“Business IPR” means all Intellectual Property Rights which are used as of the date of this Agreement or which have been used [***] in relation to the business of any Group Company;
“Business IT” means all Information Technology which is owned, used or held for use by any Group Company (excluding “shrink wrapped”, “click wrapped” or other software commercially available off the shelf);
“Buyer Documents” means the deeds, agreements and other documents referred to in this Agreement which have been, or which are to be, executed by or on behalf of the Buyer or to which the Buyer is otherwise a party;
“Buyer Protected Information” has the meaning given to it in Clause 16.1.1;
“Buyer Related Person” means any Buyer Group Company and/or any director, officer, employee, consultant, contractor, agent or adviser of any Buyer Group Company (and any director, member, partner, officer or employee of any such person);
“Buyer Warranties” means the warranties given by the Buyer to the Seller as set out in Schedule 8 (Buyer Warranties);
“Buyer’s Cypriot Counsel” means E & G Economides LLC with an office at 17 Gr. Xxxxxxxxxx Xxxxxx, 0000 Xxxxxxxx, Xxxxxx, X.X. Xxx 00000, 0000 Xxxxxxxx, Xxxxxx;
“Buyer’s Deal Team” means any of the following individuals: [***] (in respect of the Tax Warranties), [***] (in respect of the Seller Warranties set out in paragraph 17 of Part A of Schedule 7 (Seller Warranties)), [***], and [***];
“Buyer’s Disagreement Notice” has the meaning given to it in paragraph 3.1(b) of Schedule 2 (Completion Statement Principles);
“Buyer’s Group” means:
| (a) | the Buyer; and |
| (b) | each person which is for the time being (whether on or after the date of this Agreement): |
| (i) | a shareholder of the Buyer; and |
| (ii) | holding company of the Buyer, any subsidiary of the Buyer (including, for the avoidance of doubt, the Group Companies after Completion) or any such |
3
| holding company, and the ultimate beneficial owners of the Buyer and any Affiliates of such ultimate beneficial owners, and |
a “Buyer Group Company” shall be construed accordingly;
“Buyer’s Immediate Group” means the Buyer and all subsidiaries of the Buyer and “Buyer Immediate Group Company” means any of them;
“Buyer’s Relief” means:
| (a) | any Relief to the extent that it has been shown as an asset or taken into account in reducing a provision for deferred tax in the Accounts; |
| (b) | any Relief to the extent that it arises in the Ordinary Course of Business between the Accounts Date and Completion; or |
| (c) | any Relief to the extent that it arises to a Group Company in respect of a period beginning after Completion; or in respect of a transaction contemplated hereunder (including for the avoidance of doubt any Relevant Change of Law) occurring or deemed to have occurred after Completion; |
“CA 2006” means the Companies Xxx 0000;
“Call Centre” means each of the call centres operated by [***];
“Claim” means any claim by the Buyer or, in case of an Indemnity Claim, by any other Indemnified Person, in each case against the Seller under or in connection with this Agreement;
“Cluster Switch Date” has the meaning given to it in Annex 7 to Schedule 12 (Post-Completion Integration);
“Collected A/R” has the meaning given to it in Clause 4.6.1;
“Company” has the meaning given to it in Recital (B);
“Company Debenture” means the debenture entered into by the Company as chargor [***] as chargee on 17 March 2020;
“Company Guarantee” means the Guarantee entered into by the Company as guarantor [***] as lender on 17 March 2020;
“Company Related Person” means any Group Company and/or any Director, officer, Employee, or management company of any Group Company;
“Completion” means completion of the sale and purchase of the Sale Shares in accordance with Clause 7 (Completion);
“Completion Cash Balance” has the meaning given in paragraph 1.2 of Schedule 2 (Completion Statement Principles);
“Completion Consideration” means the cash sum of [***];
“Completion Date” means the date on which Completion occurs;
“Completion Date A/R” means the accounts receivable of the Group outstanding as of the end of the Completion Date but solely to the extent such accounts receivable were actually included
4
as Current Assets in the final calculation of the Working Capital in accordance with Clause 4.3 as set out in the Agreed Completion Statement;
“Completion Debt” has the meaning given in paragraph 1.3 of Schedule 2 (Completion Statement Principles);
“Conduct Notice” has the meaning given to it in paragraph 7.2 of Schedule 5 (Tax Indemnity);
“Confidential Information” means any proprietary and confidential information, and may include commercial, business, financial, operational, technical, administrative, marketing or other information (including intellectual property, information relating to existing or new products or services (or those in development), business opportunities, trade secrets, information relating to potential and actual business transactions, business plans, designs, formulae, processes, methods, lists, models, concepts and know-how, and information relating to past, present or potential future customers, clients and suppliers);
“Contract” has the meaning given to it in paragraph 10.1.1 of Part A of Schedule 7 (Seller Warranties);
“Control” means, with respect to any person, (a) the possession, directly or indirectly, of power to direct or cause the direction of management and policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of such person; (b) the ability, whether exercised or held directly or indirectly, to exercise more than fifty per cent. (50%) of the votes at any general meeting (or equivalent) of such person; or (c) the ability to appoint more than fifty per cent. (50%) of the members to the board of directors (or the closest equivalent governing body) of such person; and the correlative terms “Controlled” and “by and under common Control with” shall be similarly construed;
“Data Protection Legislation” means (i) Federal Law “On Protection of Personal Data” No. 152-FZ dated 27 July 2006 (as amended), (ii) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 On The Protection of Natural Persons with Regard to the Processing of Personal Data and On the Free Movement of Such Data and any legislation in force from time to time which implements this regulation, and (iii) all other similar privacy laws, for each of (i) – (iii), only to the extent any such privacy law is applicable to the Group Company or the relevant Former Group Company in question;
“Deanfirn” means Deanfirn Limited, a limited liability company incorporated and existing under the laws of the Republic of Cyprus under registered number HE 339370, having its registered xxxxxx xx Xxxxxxxxxx 0, Xxxxxx 000, 0000, Xxxxxxx, Xxxxxx;
“Deferred Consideration” [***];
“Determined” means a final determination of a claim by the arbitrators appointed under Clause 18 or otherwise by written agreement of the Buyer and the Seller settling the claim;
“Director” means, in respect of any Group Company, a member of the board of directors, or member of the management board or supervisory board, a general director or a chief executive officer of such Group Company;
“Discharge Date” means the date on which all liabilities of the Seller under the Facility Agreement have been irrevocably and unconditionally discharged by the Seller, [***] has no further obligations to fund advances under the Facility Agreement, and all Encumbrances under the Security Agreements have been released, provided that Discharge Date shall be deemed to have occurred upon receipt by the Seller of a certificate issued by [***];
5
“Disclosed” means in respect of the Seller Warranties, fairly disclosed in or under the Disclosure Letter with sufficient detail to enable a reasonable investor to assess the nature and the scope of the matter disclosed, and “Disclosure” and “Disclosing” has the corresponding meaning;
“Disclosure Bundle” means, in respect of the Disclosure Letter, the bundle of documents that have been provided by the Seller or its Representatives to the Buyer and/or its Representatives prior to Completion, electronically stored in permanent form on a memory card or other electronic flash memory data storage device used for storing digital information and attached as an annex to the Disclosure Letter;
“Disclosure Letter” means the letter in the agreed terms from the Seller to the Buyer dated the date of this Agreement and signed by the Seller and acknowledged by the Buyer immediately prior to Completion making general and specific Disclosures in relation to the Seller Warranties, together with the Disclosure Bundle which forms part thereof;
“Dispute” means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Agreement and/or any other Transaction Document, including a dispute, controversy, claim or difference regarding the existence, formation, validity, interpretation, performance or termination of this Agreement and/or any other Transaction Document or the consequences of its or their nullity and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Agreement and/or any other Transaction Document;
“Dispute Auditor” has the meaning given to it in Clause 4.6.3;
“Disputed Amount” has the meaning given to it in Clause 6.3.5;
“Draft Completion Statement” means the draft of the completion statement in the agreed form attached as Schedule 3 (Form of the Draft Completion Statement), drawn up by the Seller in accordance with the principles set out in Schedule 2 (Completion Statement Principles) and Part B of Schedule 3 (Form of the Draft Completion Statement) and setting out the Seller’s calculation of the [***] as at Completion;
“Draft Documents” has the meaning given to it in paragraph 3.1(a) of Schedule 2 (Completion Statement Principles);
“Eligible Bonus Recipient” has the meaning given to it in paragraph 3.1 of Part A of Schedule 4 (Employee Matters);
“Employee” means an employee, contract worker, part-time employee, temporary employee or home worker of any Group Company or a Former Group Company, as the case may be, excluding any self-employed individual service providers;
“Encumbrance” means any right, interest or equity of any other person (including any right to acquire, option, preference, right of pre-emption or right of first refusal) or any mortgage, charge, pledge, lien, restriction, assignment, hypothecation, security interest, title retention, power of sale or any other encumbrance, security agreement or arrangement or other Third Party right, or any agreement, arrangement or obligation to create, or any claim by any person to have, any of the same;
“Facility Agreement” means facility agreement [***];
“Family” means any group of individuals who are together related in any of the following ways: spouse (or civil partner or cohabitee), child or grandchild (or any further lineal descendant) (in each case including any adopted children or stepchildren), brother, sister,
6
cousin, parent, grandparent, aunt, uncle or other close family relative of that individual, and “Family Member” shall mean any person who is a member of the relevant Family;
“Family Trust” means, in relation to any person, trusts established by that person (or any Family Member of that person (whether living or dead)) in relation to which only that person and/or his Family Members are capable of being beneficiaries;
“Fasten Parties” means certain shareholders of the Seller and ultimate beneficial owners of certain shareholders of the Seller as listed in Part 1 of Part A of Schedule 1.
“Fasten Service” means Limited Liability Company “Fasten Service”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1162375036141;
“Final Release Date” has the meaning given to it in Clause 3.4.3;
“Final Release Tranche” has the meaning given to it in Clause 3.4.3;
“Financial Year” means each accounting reference period of the Company or any Group Company, as the case may be, which begins on 1 January and ends on 31 December in each calendar year;
“First Release Date” has the meaning given to it in Clause 3.4.1;
“First Release Tranche” has the meaning given to it in Clause 3.4.1;
“Former Group Companies” means the subsidiaries of the Seller, which, solely prior to Completion, includes the Group Companies; and “Former Group” means all such Former Group Companies taken together;
“Fundamental Claim” means any Warranty Claim involving or relating to a breach of any of the Fundamental Warranties;
“Fundamental Warranties” means the Seller Warranties set out in paragraphs 1, 2 and 3 of Part A of Schedule 7 (Seller Warranties);
“GoLama Business” means the business conducted in the Russian Federation of providing B2C services via GoLama mobile app and web application which allows customers to shop for groceries from offline food retailers with provision of in-store picking services and courier delivery;
“Governmental Authority” means any government or its administrative territories, any organisation, institution or authority with the executive, judicial, regulating or administrative functions (including any governmental authority, ministry, agency, service, committee, commission, institution or any other organisation and their structural subdivisions) acting on behalf of the government or its administrative territory, any court, arbitration or judge and any self-regulating organisation acting on behalf of the government in compliance with the rights granted thereto under Applicable Laws;
“Group” means the Company and the Subsidiaries and a “Group Company” means any of them;
“Group Telephone Numbers” means the telephone numbers and short indices used in the Business as at the date hereof and listed in Part A of Schedule 13 (Group Telephone Numbers);
7
“Guarantee” means any guarantee, indemnity, suretyship, letter of comfort or other assurance, security or right of set-off given or undertaken by a person to secure or support the obligations (actual or contingent) of any other person and whether given directly or by way of counter-indemnity to any other person who has provided a Guarantee;
“HR Records” means information and data with respect to the Transferred Employees in the form reasonably acceptable to the Buyer (such form having been provided to the Seller in the Excel file titled “Кадровый отчет”) and covering the periods identified by the Buyer (including the personal information and employment track record), necessary for integration of the Transferred Employees’ data in the HR and payroll systems used by the Buyer;
“IFRS” means the body of pronouncements issued by the International Accounting Standards Board (“IASB”) including the International Financial Reporting Standards and interpretations approved by the IASB, International Accounting Standards and Standards Interpretations Committee interpretations approved by the predecessor International Accounting Standards Committee, then in force as at the relevant time;
“Indebtedness” means, in respect of any person, any borrowing or indebtedness in the nature of borrowing (including any indebtedness for monies borrowed or raised under any bank or third party Guarantee, acceptance credit, bond, note, xxxx of exchange or commercial paper, letter of credit, finance lease, hire purchase agreement, forward sale or purchase agreement or conditional sale agreement or other transaction having the commercial effect of a borrowing and all finance, loan and other obligations of a kind required to be included in the balance sheet of such person pursuant to applicable accounting standards), and any amounts owing or payable under any financing or quasi-financing arrangement which would not need to be shown or reflected in any such balance sheet excluding any amounts counted as Working Capital as of the relevant date;
“Indemnified Person” means each of the Buyer and each Group Company;
“Indemnity Claim” means a Claim made under Clause 8.9;
“Independent Counsel” means Queen’s counsel of at least ten (10) years standing who is experienced in commercial and corporate matters and is neither presently, nor in the past three (3) years has been, retained to represent any Buyer Group Company or any Seller Group Company, and who does not have a conflict of interest under the applicable standards of professional conduct;
“Information Technology” means computer systems, communication systems, software, hardware and related services;
“Integration” has the meaning given to it in paragraph 2.1 of Schedule 12 (Post-Completion Integration);
“Integration Bonus” means a bonus in an amount of [***];
“Integration Bonus Cap” has the meaning [***];
“Integration Completion Date” has the meaning given to it in Schedule 12 (Post-Completion Integration);
“Integration Consideration” has the meaning given to it in Clause 3.2.2;
“Integration Period” means the period beginning on the Completion Date and ending on the Integration Completion Date;
8
“Integration Records” has the meaning given to it in Clause 14.2.1(a);
“Integration Settlement Date” has the meaning given to it in Schedule 12 (Post-Completion Integration);
“Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: patent and industrial property rights including invention patents, utility model patents and design patents; trade secret rights, rights in know-how and confidential information; rights associated with works of authorship, including exclusive exploitation rights, copyrights, neighbouring rights and moral rights, rights in designs, rights in computer software and database rights; trademark, whether registered or unregistered, and any similar rights, including domain names; other intellectual property rights in each case whether registered or unregistered; and rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to above;
“Inventory List” means each list of the assets used in the operations of each Call Centre identifying each asset, its ownership, location and condition, compiled as of 31 December 2020, as delivered by the Seller to Buyer prior to Completion;
[***];
“IP Indemnity” has the meaning given to it in Clause 8.9.3;
“IP Warranties” means the Seller Warranties contained in paragraph 16 of Part A of Schedule 7 (Seller Warranties);
“IT Licences Indemnity” has the meaning given to it in Clause 8.9.4;
“Key Former Group Company” means each of [***];
[***];
“KPIs” means [***];
“Kronos” means Limited Liability Company “Kronos” a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1162375033919, particulars of which are set out in Part C of Schedule 1 (Information about the Seller and the Group);
“Labour Indemnity” has the meaning given to it in Clause 8.9.8;
“LCIA” has the meaning given to it in Clause 18.2;
“Lider (Samara)” means Limited Liability Company “Lider”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1086316010692;
“Lider-O” means Limited Liability Company “Lider-O”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1105543020681;
“Liquidation Confirmation” has the meaning given to it in Clause 3.4;
“Local Services Agreements” means, collectively, call centre information and software services agreements to be entered into prior to or at Completion between Teleon, on one hand,
9
and each of the Key Former Group Companies, on the other hand, pursuant to which Teleon will provide information services and other services related to access to certain Intellectual Property Rights owned by the Group Companies, in agreed form;
“Loss” means any action, cost, claim, demand, proceedings, expense, charge, loss (including any direct loss of profit, all interest and penalties), damages, or any other liability or protective award (including damages, reasonable and documented legal and other professional advisers’, experts’ and consultants’ fees and costs, penalties, expenses and other losses, on an indemnity basis) and any Tax in respect of any of the foregoing, as well as cancellation or non-availability (full or partial) of Tax losses available to carry-forward and/or Tax receivables, but excluding indirect loss of profit and compensation in respect of management time;
“Lost Purchased Relief” means:
| (a) | the setting off against any profits or any Taxation of, or the reduction of any profits or any Taxation by, all or part of any Relief to the extent that it has been shown as an asset or taken into account in reducing a provision for deferred tax in the Accounts or of any Relief to the extent that it arose in the Ordinary Course of Business between the Accounts Date and the Completion Date, in each case where a valid Claim could have been made against the Seller under this Agreement in respect of such profits or Taxation in which case the amount of the Lost Purchased Relief shall be deemed to be the amount of Tax that would have been payable in the absence of such set off or reduction; or |
| (b) | the cancellation, loss or non-availability of all or part of a Relief to the extent that it has been shown as an asset or reduced a liability in the Accounts or any Relief to the extent that it arose in the Ordinary Course of Business between the Accounts Date and the Completion Date, and the amount of the Lost Purchased Relief shall be deemed to be the amount of Tax payable as a result of that Relief being so cancelled, lost, or which is unavailable, or the amount of that Relief (when it is a right to a repayment of Tax) that could otherwise have been obtained; |
“Management Accounts” means the unaudited consolidated balance sheet of the Group and the unaudited consolidated profit and loss account of the Group for the period [***], including any notes thereon, a complete and accurate copy of which shall be delivered to the Buyer on or before the Completion Date;
“Management Accounts Date” means the date to which the Management Accounts have been prepared;
“Material Adverse Change” [***];
“Material Contract” has the meaning given in paragraph 10.1.2 of Part A of Schedule 7 (Seller Warranties);
“Material Counterparty” has the meaning given to it in paragraph 12.1 of Schedule 7 (Seller Warranties);
“Minimum Claim Amount” has the meaning given to it in Clause 10.2.1;
“monthly salary” means, in respect of an Employee, an average amount of their monthly salary (including both their monthly base salary and a monthly bonus target amount, but excluding any annual, semi-annual and quarterly bonuses) paid to such Employee over the six-month period preceding the relevant date;
10
“Named Competitor” means any person operating business under any of the following brands and any Affiliates of such person from time to time: [***] and Affiliates thereof;
“Net Adjustment” has the meaning given to it in Clause 4.5;
“Notice” has the meaning given to it in Clause 19.10.1;
“Notified Address” has the meaning given to it in Clause 19.10.4;
“Notified Claim” means any Claim notified by the Buyer in accordance with Clause 6.3;
“Ordinary Course of Business” means the ordinary and usual course of business consistent with past practice (including, where applicable, with respect to quantity and frequency and with respect to nature and levels of rider and driver incentives and discounts);
“Organisational Documents” means any articles of incorporation, articles of association, charter, by-laws or other constituent or organisational document of any person required or contemplated by the Applicable Law for the creation or operation of such person;
“Original Agreement” has the meaning given to it in Recital (A);
“Other Phone Number Agreement” has the meaning given to it in paragraph 10.5 of Part A of Schedule 7 (Seller Warranties);
“Other Phone Numbers” means the telephone numbers listed in Part B of Schedule 13 (Group Telephone Numbers);
“Overprovision” has the meaning given to it in paragraph 6.1 of Schedule 5 (Tax Indemnity);
“Owned IPR” means any Intellectual Property Rights owned by any Group Company;
“Owned Registered IPR” means any Owned IPR that is registered or is the subject of applications for registration;
“Parties” means the Seller and the Buyer and the “Party” means either one of them;
“Permitted Method” has the meaning given to it in Clause 19.10.2;
“Personal Data” has the meaning given to it in paragraph 16.3.1 of Part A of Schedule 7 (Seller Warranties);
“Properties” means the property or the properties details of which are set out in Schedule 9 (The Properties);
“Protected Information” means the Buyer Protected Information and/or the Seller Protected Information, as applicable;
“Purchase Price” has the meaning given to it in Clause 3.1;
“Real Estate Register” means Russian Unified State Register of Real Estate (in Russian: Единый государственный реестр недвижимости);
“Recovered Amount” has the meaning given to it in Clause 10.12.5(a);
“Recovery Amount” has the meaning given to it in Clause 10.12;
11
“Related Party Agreement” means an [***] entered into between [***];
“Release Date” has the meaning given to is in Clause 3.4;
“Relevant Change of Law” means any decision of any court or tribunal after Completion that changes the law or practice generally understood to apply to the matter giving rise to the Tax Effect or that reverses an earlier decision of any court or tribunal in that jurisdiction in relation to which no Group Company (or Former Group Company) was a party or any change (including any retrospective change), after Completion, in the law (including subordinate legislation) or in the generally published interpretation or practice of any Tax Authority or in financial reporting or accounting standards or practice coming into force after Completion;
“Relevant Period” means with respect to the Tax Warranties, the period starting at the beginning of [***] and ending at [***] (both inclusive);
“Relevant Proportion” has the meaning given to it in Clause 3.4;
“Relevant Relief” has the meaning given to it in paragraph 5.1 of Schedule 5 (Tax Indemnity);
“Relief” includes any right to repayment of Taxation from a Tax Authority and any relief, loss, allowance, set-off or credit in respect of Taxation and any deduction in computing or against profits for Taxation purposes;
“Representative” means with respect to any person, any officer, manager, director, employee, agent, attorney, accountant or advisor of such person;
“Restricted Business” means [***];
“Restricted Party” means [***] and any Affiliate of any of them;
“Restricted Period” has the meaning given to it in Clause 13.1.1;
“Restricted Person” means any person who is at the time of signing this Agreement a Key Integration Employee or a Top Manager;
“Restricted Territory” means any geographic area in which the Business (or any part of the Business) is conducted at Completion (or was conducted in the period of [***] preceding Completion) and any country in which the Buyer conducts its business (or any part of such business) at Completion, as listed in Schedule 14 (Countries List);
“Restructuring” means the reorganisation and restructuring of [***];
“Restructuring Indemnity” has the meaning given to it in Clause 8.9.2;
“Retained Records” has the meaning given to it in Clause 14.2.2;
“Rospatent” means the Federal Service for Intellectual Property of the Russian Federation (in Russian: Федеральная служба по интеллектуальной собственности (Роспатент)) or any successor Russian Governmental Authority;
“RUB” or “Roubles” means lawful currency of the Russian Federation;
“Rules” has the meaning given to it in Clause 18.2;
“Rutaxi Platform” means IT platform “Rutaxi”, an integrated information system providing taxi ride-hailing, ride-sharing and related services for the arrangement of passenger
12
transportation, a more detailed description of which is set out in Schedule 11 (Information Technology);
“Sale Shares” has the meaning given to it in paragraph (C) of the Recitals;
“Sanctions” means any trade or economic sanction, trade or economic restriction, prohibition, embargo, ban, inclusion in any government negative list, imposed by Applicable Law or regulation, or resolution of the United Nations, the Russian Federation, the European Union or any member state thereof, the United States of America, or any other relevant jurisdiction in all cases to the extent they apply to the person in question;
“Second Release Date” has the meaning given to it in Clause 3.4.2;
“Second Release Tranche” has the meaning given to it in Clause 3.4.2;
“Security Agreements” means certain security agreements to secure obligations of the Seller as borrower under the Facility Agreement made between Former Group Companies and(or) shareholders of the Seller, each as chargor, and [***] as chargee in accordance with the Facility Agreement;
“Seller Account” means the following bank account:
Name: [***]
Beneficiary account No: [***]
Beneficiary Bank: Bank [***]
Bank identification code: [***]
INN: [***]
KPP: [***]
Correspondent account: [***]
[***]
[***]
SWIFT: [***]
“Seller Claim” means any claim by the Seller against the Buyer under or in connection with this Agreement, including under or in respect of any of the Buyer Warranties;
“Seller Liability Cap” means an amount equal to [***] and the [***];
“Seller Protected Information” has the meaning given to it in Clause 16.2.1;
“Seller Related Entity” means:
| (a) | any member of the Seller’s Group, |
| (b) | any Seller Related Person, and |
| (c) | any company which would be a subsidiary of any Seller Related Person (or any group of Seller Related Persons collectively) if such Seller Related Person (or such group of Seller Related Persons collectively) were a company, |
for the avoidance of doubt, including the Group Companies prior to Completion and excluding the Group Companies after Completion;
“Seller Related Person” means, where either individually or collectively:
| (a) | any individual, or |
13
| (b) | any group of individuals who are together members of the same Family, |
| (c) | any Family Trust of which any such individual is an actual or potential beneficiary, |
that would, if the relevant individual, group of individuals and/or Family Trust were (individually or collectively) a company, be a holding company of the Seller:
| (i) | that individual (or, in the case of a number of individuals who are together members of the same Family, each such individual), |
| (ii) | any Family Member of any such individual or individuals, and |
| (iii) | any Family Trust of which any such individual or individuals is or are an actual or potential beneficiary; |
“Seller Warranties” means the warranties given by the Seller to the Buyer as set out in Schedule 7 (Seller Warranties);
“Seller’s Group” means:
| (a) | the Seller, and |
| (b) | each person which is for the time being (whether on or after the date of this Agreement): |
| (i) | a shareholder of the Seller, or |
| (ii) | a subsidiary of the Seller or any such shareholder (including any Former Group Company but excluding, from and after Completion, any Group Company), |
and a “Seller Group Company” shall be construed accordingly;
“Server” means each of the computer servers owned by Teleon prior to Completion and used for the purposes of the Business;
“SoftPlus” means Limited Liability Company “SoftPlus”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 0000000000000;
“Staff Schedule” has the meaning given to it in paragraph 2.2 of Part A of Schedule 4 (Employee Matters);
“Stolitsa DS” means Limited Liability Company “Stolitsa DS”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1167746725013;
“Statement” has the meaning given to it in Clause 19.1.2;
“Subsidiaries” means the companies and undertakings specified in Part C of Schedule 1 (Information about the Seller and the Group) and a “Subsidiary” means any of them;
“Subsidiary Equity Interests” means all shares or participatory interests in a Subsidiary, or all of such shares and participatory interests in the Subsidiaries collectively, as the context requires;
“Surviving Agreements” has the meaning given to it in Clause 14.1.1(c);
14
“Surviving Provisions” has the meaning given to it in Clause 19.12.2;
“Target Working Capital” means [***];
“Tax”, and “Taxation” means all forms of taxation including withholdings, duties, imposts, levies, value added tax, social security contributions imposed, assessed or enforced by any Governmental Authority (whether in the Russian Federation, Republic of Cyprus, or any other jurisdiction in which any Group Company or, where relevant, any Former Group Company does business), in all cases being in the nature of Taxation, and any interest, penalty, surcharge or fine in connection therewith, in each case whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or otherwise and shall further include payments to a Governmental Authority on account of Tax, whenever and wherever imposed and whether chargeable directly or primarily against or attributable directly or primarily to a Group Company or any Former Group Company or any other person;
“Tax Audit” means an examination and verification of a person’s financial, Tax and accounting records and supporting documents by a competent Russian or Cypriot Tax Authority for the purpose of verifying such person’s tax calculations and payments as well as overall compliance with the applicable Tax law conducted in-xxxxxxxx or at such person’s place of business;
“Tax Authority” means any Governmental Authority competent to impose any Tax, or responsible for the administration and/or collection of Tax or enforcement of any law in relation to Tax, in any jurisdiction.
“Tax Claim” means a Claim involving or relating to a breach of any Tax Warranty or under the Tax Indemnity;
“Tax Effect” means:
| (a) | actual Taxation payable or suffered by the relevant Group Company; and |
| (b) | a Lost Purchased Relief; |
“Tax Indemnity” means the indemnities relating to Tax set out in Schedule 5 (Tax Indemnity);
“Tax Warranties” means the Seller Warranties contained in Part B of Schedule 7 (Seller Warranties);
“Teleon” means Limited Liability Company “Teleon” (formerly named Limited Liability Company “Zelenaya Liniya Krasnodar”), a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 0000000000000 particulars of which are set out in Part C of Schedule 1 (Information about the Seller and the Group);
“Telephone Number Agreement” means agreements with respect to the use of any Group Telephone Number;
“Third Party” means any person other than a Party to this Agreement or an Affiliate thereof;
“Third Party Claim” has the meaning given to it in Clause 11.2.1;
“Third Party Tax Claim” has the meaning given to it in Clause 11.2.1;
“Title Claim” means a Claim involving or relating to a breach of any Title Warranty or under the Title Indemnity;
15
“Title Indemnity” has the meaning given to it in Clause 8.9.1;
“Title Warranties” means the Seller Warranties contained in paragraph 1 of Part A of Schedule 7 (Seller Warranties);
“Top Managers” means each of the Employees of the relevant Former Group Companies listed at Part B of Schedule 4 (Employee Matters);
“Transaction” includes any transaction, circumstance, state of affairs, act, event, arrangement, provision or omission of whatever nature, including a receipt or accrual of income or gains, distribution, failure to distribute, acquisition, disposal, transfer, payment, loan or advance, and any reference to an event occurring on or before a particular date shall include events which for Tax purposes are deemed under Applicable Law to have, or are treated or regarded as having, occurred on or before Completion;
“Transaction Documents” means this Agreement and each Local Services Agreement;
“Transferred Assets” means the assets of the Former Group Companies listed in Schedule 22 (Transferred Assets) to the Original Agreement that have been transferred to the Group Companies;
“Transferred Employee” has the meaning given to it in paragraph 1.1.1 of Schedule 4 (Employee Matters);
“TransService” means Limited Liability Company “TransService”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1070276006460;
“US$” or “US Dollars” means lawful currency of the United States;
“Used IPR” means any Business IPR other than the Owned IPR;
“Vezet Dobro” means Limited Liability Company “Vezet Dobro”, a limited liability company incorporated and existing under the laws of the Russian Federation under the state registration number (OGRN) 1142308001021;
“Vezet Dobro Business” means the business conducted in the Russian Federation of providing both B2B and B2C intracity cargo transportation services as well as certain other services, namely: car towing, removal of construction waste, delivery of construction materials and goods, assistance with loading and unloading of cargo trucks;
“Vezet Platform” means IT platform “Fasten” (“Vezet 2.0”), an integrated information system providing taxi ride-hailing, ride-sharing services and related services for the arrangement of passenger transportation;
[***];
[***];
[***];
“Warranty Claim” means a Claim involving or relating to a breach of any of the Seller Warranties (other than any Tax Warranty);
“Withheld Amount” has the meaning given to it in Clause 6.3.1;
16
“Working Capital” [***]
| 1.2 | In this Agreement (including the Schedules), unless otherwise specified: |
| 1.2.1 | The Schedules form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the schedules. |
| 1.2.2 | The contents table, and the headings to Clauses, paragraphs and schedules, are for convenience only and do not affect the interpretation of this Agreement. |
| 1.2.3 | References in this Agreement to: |
| (a) | any Recital, Clause or Schedule are to those contained in this Agreement and references to any paragraph are to those contained in the relevant Recital or Schedule to this Agreement; |
| (b) | this Agreement or to any other agreement or document (or to any specified provision of this Agreement or any other agreement or document) are references to this Agreement, that agreement or document or that provision as amended, supplemented, novated or otherwise modified from time to time (in each case provided that any such amendment, supplement, novation or other modification is not in breach of this Agreement or the relevant agreement or document); |
| (c) | a document in the “agreed form” is a reference to a document in a form approved and for the purposes of identification initialled by or on behalf of each Party on or before the execution of this Agreement or set out in a Schedule; |
| (d) | a “Party” includes a reference to that Party’s successors, permitted assigns and personal representatives; |
| (e) | one gender includes all genders (including, in each case, neuter), and the singular includes the plural, and vice versa, unless the context otherwise requires; |
| (f) | a time of day is to Moscow (Russian Federation) time, unless the context otherwise requires; |
| (g) | writing shall include any modes of reproducing words in a legible and non-transitory form (and for the avoidance of doubt shall include e-mail or other electronic form); |
| (h) | the words “herein”, “hereby”, “hereof”, “hereinafter”, “hereto”, and other words of similar import shall (unless the context otherwise requires) be deemed to refer to this Agreement as a whole, and not to a specific clause, paragraph or schedule thereof; |
| (i) | a “person” includes a reference to any individual, firm, company, corporation or other body corporate, government, state or agency of a state or any joint venture, association, partnership, organisation, foundation, trust, works council or employee representative body (in each case, whether or not having separate legal personality); and |
17
| (j) | a “subsidiary undertaking” or “parent undertaking” is to be construed in accordance with section 1162 (and Schedule 7) of CA 2006 and a “subsidiary” or “holding company” is to be construed in accordance with section 1159 (and Schedule 6) of CA 2006. |
| 1.2.4 | Any reference to any statute, law, regulation, rule, delegated legislation or order is to any statute, law, regulation, rule, delegated legislation or order as amended, modified or replaced from time to time and to any statute, law, regulation, rule, delegated legislation or order replacing or made under any of them; provided that no such amendment, modification or replacement after the date of this Agreement shall increase the liability of any Party beyond that for which such Party would have been liable but for such amendment, modification or replacement. |
| 1.2.5 | A reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term. |
| 1.2.6 | The rule known as the ejusdem generis rule, and similar rules of interpretation, shall not apply and accordingly the words “other” and “otherwise” shall not be given a restrictive meaning (where a wide interpretation is possible); and the words “including” and “in particular” are to be construed as being by way of illustration or emphasis only, and are not to be construed as, nor shall they take effect as, limiting the generality of any foregoing words. |
| 1.2.7 | Any obligation on a Party not to do something includes an obligation not to allow that thing to be done (insofar as it reasonably lies within the power of that Party to prevent it). |
| 1.2.10 | The Parties acknowledge and agree that this Agreement has been jointly drafted by the Parties, and, accordingly, the contra proferentem rule (or any similar rule of interpretation) shall not be applied against any Party. |
| 2.2 | Title to, beneficial ownership of, and any risk attaching to, the Sale Shares shall pass on Completion to the Buyer together with all rights and benefits attaching or accruing to the Sale |
18
| Shares on or after Completion (including the right to receive all dividends and other distributions declared, made or paid after Completion). |
| 2.5 | The Buyer shall not be obliged to complete the purchase of any of the Sale Shares unless the purchase of all the Sale Shares is completed simultaneously. |
| 3.1 | The consideration for the Sale Shares shall be equal to [***] (the “Purchase Price”), as may be reduced and otherwise adjusted pursuant to other provisions of this Clause 3, Clause 4 and Clause 5. |
| 3.2 | The Purchase Price shall be satisfied by the Buyer: |
| 3.2.1 | on the Completion Date by paying to the Seller the Completion Consideration in cash and otherwise in accordance with Clause 1.2.9: |
| (a) | less the Deferred Consideration to be retained by the Buyer and settled in accordance with Clauses 3.4 and 6; and |
| (b) | less the Integration Bonus Cap to be retained by the Buyer and settled in accordance with Schedule 4 (Employee Matters); and |
| (c) | as may be adjusted pursuant to Clause 4; and |
| 3.2.2 | within [***] by paying to the Seller an amount in cash (if any) [***], and otherwise in accordance with Clause 1.2.9 (the “Integration Consideration”). |
| 3.4 | Subject to Clause 6, the Buyer shall pay to the Seller: |
19
provided that, if the Seller delivers to the Buyer an extract from the Russian Unified State Register of Legal Entities in electronic format downloaded from the official web-site of the Russian Federal Tax Service and signed with an enhanced qualified electronic signature confirming the cessation of existence of any Former Group Company listed below due to its liquidation in accordance with the procedure envisaged by Article 63 of the Russian Civil Code (the “Liquidation Confirmation”) prior to any of the First Release Date, the Second Release Date or the Final Release Date, a relevant proportion of any then outstanding Deferred Consideration attributable to such Former Group Company (and any other Former Group Companies that have been merged into such Former Group Company following the date of this Agreement), in each case as set out in the table below (the “Relevant Proportion”) for the remaining time period between the receipt of the Liquidation Confirmation by the Buyer and the Final Release Date shall be paid by the Buyer to the Seller not later than the [***] following the receipt of the Liquidation Confirmation (each such date, together with the First Release Date, Second Release Date and Final Release Date, a “Release Date”), such payment to be in US Dollars, calculated in accordance with Clause 1.2.8, and the amounts of each of the First Release Tranche, the Second Release Tranche and the Final Release Tranche, as applicable, shall be reduced by such Relevant Proportion as follows:
No. | Former Group Company (tax identification number) | Relevant Proportion | ||
From Completion until the First Release Date | Following the First Release Date until the Second Release Date | Following the Second Release Date until the Final Release Date | ||
1. | [***] | [***] | [***] | [***] |
2. | [***] | [***] | [***] | [***] |
3. | [***] | [***] | [***] | [***] |
4. | [***] | [***] | [***] | [***] |
5. | [***] | [***] | [***] | [***] |
6. | [***] | [***] | [***] | [***] |
7. | [***] | [***] | [***] | [***] |
8. | [***] | [***] | [***] | [***] |
9. | [***] | [***] | [***] | [***] |
10. | [***] | [***] | [***] | [***] |
11. | [***] | [***] | [***] | [***] |
20
12. | [***] | [***] | [***] | [***] |
13. | [***] | [***] | [***] | [***] |
14. | [***] | [***] | [***] | [***] |
15. | [***] | [***] | [***] | [***] |
16. | [***] | [***] | [***] | [***] |
17. | [***] | [***] | [***] | [***] |
| 3.5 | Any amount of the Deferred Consideration kept by the Buyer pursuant to Clause 6 or otherwise paid (or satisfied) by the Seller to or in favour of the Buyer by way of: |
| 3.5.1 | any downward adjustment to the Completion Consideration or Integration Consideration; |
| 3.5.2 | any Warranty Claim, Tax Claim or an Indemnity Claim; or |
| 3.5.3 | otherwise pursuant to this Agreement, |
shall be and shall be deemed (as far as legally permitted) to be pro tanto a reduction in the Purchase Price. If any payment is made in respect of any Indemnity Claim to any Indemnified Person (other than the Buyer) the Purchase Price shall similarly be deemed to have been reduced by amount of such payment thereunder.
| 4.1 | The Completion Consideration shall be adjusted after Completion in accordance with the provisions of this Clause 4 and the process set out in Schedule 2 (Completion Statement Principles). |
| 4.3 | Completion Cash Balance, Completion Debt and the Working Capital shall be derived from the Agreed Completion Statement. |
| 4.4 | The Completion Consideration shall be adjusted as follows: |
| 4.4.1 | in the event that Completion Cash Balance exceeds [***], the amount of the excess shall be payable by the Buyer to the Seller in accordance with Clause 4.5; |
| 4.4.2 | in the event that Completion Cash Balance is less than [***], the amount of the deficit shall be payable by the Seller to the Buyer in accordance with Clause 4.5; |
| 4.4.3 | in the event that Completion Debt exceeds [***], the amount of the excess shall be payable by the Seller to the Buyer in accordance with Clause 4.5; |
| 4.4.4 | in the event that the Working Capital exceeds the Target Working Capital, the amount of the excess shall be payable by the Buyer to the Seller in accordance with Clause 4.5; and |
21
| 4.4.5 | in the event that the Working Capital is less than the Target Working Capital, the amount of the deficit shall be payable by the Seller to the Buyer in accordance with Clause 4.5. |
| 4.6 | A/R Adjustment |
| 4.6.3 | In the event any such A/R Dispute Notice is timely provided: |
22
| (c) | The Dispute Auditor shall have exclusive jurisdiction over, and resorting to the Dispute Auditor as provided in this Clause 4.6.3 shall be the only recourse and remedy of the Parties against one another with respect to, those items and amounts that remain in dispute under this Clause 4.6, and neither the Seller nor the Buyer shall be entitled to seek indemnification or recovery of any attorneys’ fees or other professional fees incurred by such Party or its Affiliates in connection with any dispute governed by this Clause 4.6.3. |
| 5.1 | Integration Consideration; Adjustment |
The Buyer shall pay the Integration Consideration to the Seller (if any) within [***] of [***], provided that the Integration Consideration shall be calculated and adjusted in accordance with Schedule 12 (Post-Completion Integration).
| 5.2 | Conduct of Business During the Integration Period |
| 5.2.2 | The Buyer shall procure that during the Integration Period: |
| (a) | no Top Manager is removed from the office or stripped of its control over, or functions related to, the Integration other than for cause or with the prior written consent of the Seller; and |
| (b) | no Top Manager’s employment or service agreement is varied other than in accordance with its terms or with the prior written consent of such Top Manager. |
| 5.2.3 | The Buyer covenants with the Seller that during the Integration Period: |
23
| (a) | the Buyer shall retain the beneficial ownership of the whole of the issued share capital of the Company and each other Group Company; and |
| (b) | the Buyer shall not commence a winding up or bankruptcy of any Group Company and shall procure that no Group Company changes its place of business. |
| 6.1 | Subject to Clause 3.2.1(a) and except as otherwise expressly provided in this Clause 6 or elsewhere in this Agreement, all sums payable under or pursuant to this Agreement shall be paid free of: |
| 6.1.1 | any counterclaim or set-off of any kind; and |
| 6.1.2 | any other deduction or withholding (other than any deduction or withholding of Tax required by Applicable Law). |
| 6.2 | Notwithstanding the foregoing, if the amount of any Claim has been Determined in favour of the Buyer: |
| 6.3 | Notwithstanding the foregoing, if the Buyer has notified the Seller of a Claim in accordance with Clause 10.1 (the “Notified Claim”) but such Claim has not been Determined: |
| 6.3.2 | prior to [***], the Buyer shall be entitled to withhold such Withheld Amount from the Deferred Consideration that remains unpaid as of such date; |
| (a) | if the Withheld Amount (or a portion thereof) was withheld from the Integration Consideration in accordance with Clause 6.3.1, simultaneously |
24
| with, and as part of, the Integration Consideration, or, if the Integration Consideration (less the Withheld Amount) has been paid prior to such determination by the Independent Counsel, within [***] of the determination; |
| (b) | if the Withheld Amount (or a portion thereof) was withheld from the Deferred Consideration in accordance with Clause 6.3.2, on the next Release Date (and, if the amount due to the Seller on such Release Date is less than the Withheld Amount, then on the next following Release Date(s), or, if the Withheld Amount was withheld prior to a Release Date and the Independent Counsel’s determination is made after such Release Date, [***] of the determination); |
provided that if the Independent Counsel provides a range of values, the simple average of all values shall be used for the purposes of the calculation. The Independent Counsel shall be instructed to assess the values in a way that the top end of the range shall not be greater than the mid-point of the range by more than [***].
25
| 6.4 | Subject to Clause 3.4, the Buyer shall pay to the Seller: |
| 6.4.1 | on the First Release Date, the First Release Tranche (if any) less any amounts the Buyer may withhold in accordance with Clause 6.2 and Clause 6.3; |
| 6.4.2 | on the Second Release Date, the Second Release Tranche (if any) less any amounts the Buyer may withhold in accordance with Clause 6.2 and Clause 6.3; and |
| 6.4.3 | on the Final Release Date, the Final Release Tranche (if any) less any remaining amounts the Buyer may withhold in accordance with Clause 6.2 and Clause 6.3. |
| 7.1 | The Completion Date shall occur on the date hereof, unless agreed otherwise in writing between the Parties. Completion shall take place on the Completion Date at 10 am (CET) at the offices of the Buyer’s Cypriot Counsel in Limassol or at such other place(s), date, and time as may be agreed between the Parties in writing. |
| 7.2 | At Completion: |
| 7.2.1 | the Seller shall do, or procure the carrying out of, each of those things listed as its obligations in Part A, Part B or Part C of Schedule 6 (Completion Arrangements); and |
| 7.2.2 | the Buyer shall do, or procure the carrying out of, each of those things listed as its obligations in Part A, Part B or Part C of Schedule 6 (Completion Arrangements). |
26
| 7.5.1 | postpone Completion to another time and date; or |
| 7.5.2 | proceed to Completion so far as practicable; or |
| 7.5.3 | terminate this Agreement by notice in writing to the defaulting Party. |
| 7.7 | If the Agreement is terminated in accordance with Clause 7.5.3 (and without limiting the non-defaulting Party’s right to claim damages), the provisions of Clause 19.12 shall apply. |
| 8.1 | Subject to Clauses 8.8 and 19.7 (Assignment, Etc.), the Seller warrants to the Buyer that each of the Seller Warranties is true and accurate on the date of this Agreement. |
| 8.3 | Each of the paragraphs in Schedule 7 (Seller Warranties): |
| 8.3.1 | shall be construed as a separate and independent warranty; and |
| 8.3.2 | unless expressly provided in this Agreement, shall not be limited by reference to any other paragraph in Schedule 7 (Seller Warranties) or by any other provision of this Agreement, |
and the Buyer shall have a separate Claim and right of action in respect of every breach of a Seller Warranty.
| 8.4 | The Seller Warranties shall not be extinguished or affected by Completion. |
27
| 8.5.1 | obtain the prior written consent of the Buyer; and |
| 8.5.2 | not be entitled to assign its rights under this Clause 8.5. |
| 8.6 | Subject to Clause 8.8: |
| 8.9 | Indemnities |
Notwithstanding any other provision of this Agreement, the Seller shall (so far as possible by way of adjustment to the Purchase Price) on demand indemnify in full and hold harmless the Buyer and each other Indemnified Person against, and covenants to pay to the Buyer and each other Indemnified Person an amount equal to, all Losses suffered or incurred by the Buyer or
28
any other Indemnified Person arising, directly or indirectly, out of or in connection with any of the following matters:
| (a) | any failure to obtain spousal consents in connection with any acquisition of shares (participation interests) in any of the Group Companies or any legal predecessors thereof; |
| (b) | any failure to obtain necessary corporate approvals in connection with any acquisition or transfer of shares (participation interests) in any of the Group Companies or any legal predecessors thereof; |
| (e) | any aspect of formation or reorganisation of a Group Company not having been validly carried out in accordance with Applicable Laws; and/or |
| (f) | any aspect of the issue of Sale Shares or any shares or participation interests issues by any Group Company or any legal predecessors thereof not having been validly carried out in accordance with the Applicable Laws, |
in each case, prior to Completion (“Title Indemnity”);
| 8.9.2 | any Third Party Claims in connection with the Restructuring, including where they arise out of a failure to comply with Applicable Law (“Restructuring Indemnity”); |
| 8.9.5 | any Telephone Number Agreement: |
| (a) | is avoided, rescinded, repudiated, prematurely terminated (whether as a result of this Agreement, the sale of the Sale Shares, a breach by a Group Company, or any of their legal predecessors, or any Former Group Company, event of default or other termination right under such Telephone Number Agreement), or |
29
| (b) | is declared to be invalid, or |
| (c) | the service provider imposes any additional obligation on any Group Company, |
in case of each of (a), (b) and (c) as a result of or in connection with any event, fact, circumstance or action prior to the Completion Date;
| 8.9.6 | any claim in respect of any material breach, material misappropriation, or material unauthorized disclosure, intrusion, access, use or dissemination of any Personal Data by any person against any Group Company arising as a result of or in connection with any event, fact, circumstance or action prior to the Completion Date; |
| 8.9.7 | any claims, actions or proceedings by or on behalf of any Third Party having business dealings with Xx. Xxxxxx Xxxx or any entities directly or indirectly owned or Controlled by Xx. Xxxxxx Xxxx in relation to business similar to the Business, to the extent such claims, actions or proceeding are against the Sale Shares or any participation interest in any of the Group Companies and arise as a result of or in connection with any event, fact, circumstance or action relating to such business dealings prior to the Completion Date; or |
| 8.9.9 | The Discharge Date not having occurred on the next operational day of [***] following the Completion Date. |
30
| 9.1 | The Buyer warrants to the Seller that each of the Buyer Warranties is true and accurate on the date of this Agreement. |
| 9.2 | Each of the paragraphs in Schedule 8 (Buyer Warranties): |
| 9.2.1 | shall be construed as a separate and independent warranty; and |
| 9.2.2 | unless expressly provided in this Agreement, shall not be limited by reference to any other paragraph in Schedule 8 (Buyer Warranties) or by any other provision of this Agreement. |
| 9.3 | The Buyer Warranties shall not be extinguished or affected by Completion. |
| 10.1 | Time Limitation for Claims |
| 10.1.2 | The Seller shall not be liable for any Claim unless a notice of the Claim is given by the Buyer to the Seller specifying the matters set out in Clause 11.1: |
| (a) | in respect of any Claim for breach of any Fundamental Warranty, [***] following the Completion Date; |
| (b) | in respect of any Tax Claim, the last date of the period which is [***] after the Completion Date provided that if upon expiry of such period a Tax Audit of any Group Company in respect of a period prior to Completion has been notified or is ongoing then such time period shall be extended to amount to [***] after the Completion Date; |
| (c) | in respect of a Claim under the Title Indemnity, [***] following the Completion Date; |
| (d) | in respect of any Indemnity Claim (other than a Claim under the Tax Indemnity or Title Indemnity), [***] following the Completion Date; |
| (e) | in respect of any other Claim, [***] following the Completion Date. |
| 10.2 | Minimum Claims |
| 10.2.1 | The Seller shall not be liable for any individual Warranty Claim or a Claim under a Tax Warranty (or a series of such Claims arising from substantially identical facts |
31
| or circumstances) where the liability Determined for any such Claim or series of such Claims does not exceed [***] (the “Minimum Claim Amount”). |
| 10.3 | Aggregate Minimum Claims |
| 10.4 | Maximum Liability |
| 10.4.1 | The aggregate liability of the Seller for: |
| (a) | all Claims shall not exceed [***]; |
| (b) | all Tax Claims shall not exceed [***]; |
| (c) | all IP Claims shall not exceed [***]; |
| (d) | all Title Claims shall not exceed [***]; |
| (e) | all Indemnity Claims under the Labour Indemnity shall not exceed [***]; |
| (f) | all Claims, other than: (i) Fundamental Claims, (ii) Tax Claims, (iii) IP Claims, (iv) Title Claims, (v) Indemnity Claims under the Labour Indemnity and (vi) Claims under Clause 4 (Completion Consideration; Adjustment), shall not exceed [***]. |
| 10.5 | Matters Arising Subsequent to this Agreement |
The Seller shall not be liable for any Warranty Claim or a Claim under a Tax Warranty to the extent that such Claim has arisen or is increased as a result of:
| 10.5.1 | any matter or thing done or omitted to be done pursuant to and in compliance with a Transaction Document or otherwise at the request in writing or with the approval in writing of the Buyer; |
| 10.5.2 | any act, omission or transaction of the Buyer or other Buyer’s Immediate Group Company done, committed or effected: |
| (a) | in the knowledge that such act, omission or transaction might give rise to, or increase the extent of, such Claim or in circumstances where such Claim was reasonably foreseeable as a result of such act, omission or transaction; or |
32
| (b) | otherwise than in order to comply with Applicable Law or pursuant to a legally binding commitment to which any Group Company or a Buyer Group Company is subject on or before Completion; |
| 10.5.3 | a breach of any Transaction Document by a Buyer Group Company that is a party to such Transaction Document; |
| 10.5.4 | the passing of, or any change in, after the date of this Agreement, any law, rule or regulation of any Governmental Authority not actually (or prospectively) in effect at the date of this Agreement including any law, rule or regulation passed after the date of this Agreement but taking effect retrospectively; |
| 10.5.5 | a change after the date of this Agreement in the interpretation or administration of any law, rule or regulation by any Governmental Authority; |
| 10.5.6 | any change in accounting policy, principles, methods, bases or practice of any Buyer Group Company or Group Company introduced or having effect after Completion; or |
| 10.5.7 | any change in financial reporting standards introduced or having effect after the date of this Agreement. |
| 10.6 | No Double Recovery and no Double Counting |
No Party may recover for breach of or under this Agreement or otherwise more than once in respect of the same Loss suffered or amount for which the Party is otherwise entitled to claim (or part of such Loss or amount), and no amount (or part of any amount) shall be taken into account, set off or credited more than once for breach of or under this Agreement or otherwise, with the intent that there will be no double counting for breach of or under this Agreement or otherwise.
| 10.7 | Mitigation of Losses |
Nothing in this Agreement impairs any Party’s common law duty of mitigation. The Buyer shall use reasonable endeavours to mitigate any Losses, costs or liabilities suffered or incurred by it, any other member of the Buyer’s Group or, following Completion, any Group Company in consequence of any fact, matter, event or circumstances giving rise to a Warranty Claim.
| 10.8 | Allowances, Provisions or Reserves |
| 10.9 | Fraud |
None of the limitations contained in this Clause 10 shall apply to the extent a liability arises or is increased as a result of fraud or fraudulent misrepresentation by the Seller, the directors of the Seller or [***].
| 10.10 | Matters Capable of Remedy |
33
To the extent that the subject matter of a Claim is capable of remedy, the Seller will not be liable in respect of that Claim to the extent that it remedies the relevant breach without a loss, cost or liability to the Buyer or any Group Company within [***] following notification of a Claim by the Buyer to the Seller under Clause 10.1.1.
| 10.11 | Contingent or Non-quantifiable Claims |
The Seller shall not be liable in respect of any Claim to the extent that such Claim is based upon a liability which is contingent only or is otherwise not capable of being quantified unless and until such liability ceases to be contingent and becomes an actual liability or becomes capable of being quantified, as the case may be, and is due and payable; provided that this Clause 10.11 shall not operate to avoid a Claim made in respect of a contingent or unquantifiable liability of which notice is given by the Buyer under Clause 10.1.1 within the applicable time limits specified in Clause 10.1.2 if the notice of such Claim has been given (together with such material details relating to that Claim of which the Buyer shall be aware when giving it) before the expiry of the relevant period (even if such liability does not become an actual or quantifiable liability, as the case may be, until after the expiry of such period).
| 10.12 | Recovery from Third Parties |
Where, following the Completion Date, the Buyer or any Group Company is entitled to recover from any Third Party an amount (the “Recovery Amount”) in respect of any matter or event which gives rise to a Warranty Claim or an Indemnity Claim (including under any insurance policy):
| 10.12.1 | the Buyer shall not be restricted from pursuing that Warranty Claim or Indemnity Claim or any other Claim in relation to the same subject matter against the Seller; |
| 10.12.4 | if the Third Party in question is not an insurance company, the Buyer shall assign its claim against such Third Party to the Seller only if all of the following conditions are satisfied: |
| (a) | the Seller pays and settles in full to the Buyer the amount of such Warranty Claim or such Indemnity Claim before the Buyer so assigns its claim against such Third Party to the Seller; |
| (b) | the Buyer’s claim against such Third Party is capable of being assigned (including by virtue of a provision allowing such assignment in a contract or arrangement with such Third Party); and |
| (c) | such assignment does not prejudice legitimate business interests of the Buyer, |
provided that if the Buyer refuses to assign the claim against such Third Party to the Seller on the basis set out in Clause 10.12.4(c), it shall provide the Seller with an
34
explanation of what legitimate interests of the Buyer may be prejudiced by such assignment.
| 10.12.5 | in the event the Buyer does not assign its claim against a Third Party by operation of Clause 10.12.3 or Clause 10.12.4: |
| 10.13 | Indirect Losses |
The Seller shall not be liable under or in connection with this Agreement (including pursuant to or under an Indemnity Claim) in respect of any indirect or consequential losses, any punitive or exemplary damages, in each case whether due to a breach of contract, breach of warranty, gross negligence, negligence or otherwise, whether actual or prospective.
| 10.14 | General |
| 10.14.1 | Until Completion has taken place in accordance with the terms and conditions of this Agreement: |
| (a) | the Buyer may not make any Warranty Claim or Indemnity Claim; and |
| (b) | the Seller shall not be subject to any liability under any Warranty Claim or Indemnity Claim. |
| 10.14.2 | The Buyer confirms that, as of the date of this Agreement, it is not aware of any matter that constitutes a breach of this Agreement or which entitles it to make a Claim. |
| 11.1 | Notification of Claims |
Notice of any Claim for breach of or under this Agreement shall be given by the Buyer to the Seller as contemplated under Clause 10.1.1 and within the time limits specified in Clause 10.1.2 and shall specify in reasonable detail the legal and factual basis of the Claim and setting out (to the extent possible) the Buyer’s reasonable estimate of the amount of losses, costs and liabilities which is, or is to be, the subject of the Claim (including any losses which are contingent on the occurrence of any future event).
| 11.2 | Conduct of Third Party Claims |
| 11.2.1 | If the chief legal officer of the Buyer becomes aware of a claim in writing by a Third Party other than a Third Party Tax Claim (the “Third Party Claim”) which might |
35
| be reasonably expected to result in a Warranty Claim or Indemnity Claim being made, the Buyer shall: |
| 12.1 | Time Limitation for Seller Claims |
36
| not be liable for such Seller Claim to the extent that its liability under such Seller Claim has arisen or increased as a result of such failure. |
| 12.1.2 | The Buyer shall not be liable for any claim by the Seller unless a notice of such claim is given by the Seller to the Buyer specifying the matters set out in Clause 12.1.1: |
| (a) | in respect of any Seller Claim for breach of any Buyer Warranty set out in Schedule 8 (Buyer Warranties), [***] following the Completion Date; |
| (b) | in respect of any other Seller Claim (except for any Seller Claim in relation to payment of all or a portion of the Purchase Price, including all or a portion of the Deferred Consideration), [***] following the Completion Date; and |
| (c) | in respect of any Seller Claim [***] following the date on which the relevant portion of the Purchase Price is due in accordance with this Agreement. |
| 12.2 | Maximum Liability |
The aggregate liability of the Buyer in respect of all Seller Claims shall not exceed the aggregate amount of [***] (subject to all adjustments thereto under this Agreement and not including any interest (default or otherwise), penalties, costs or expenses incurred by the Seller in recovering any amount of the Purchase Price).
| 12.3 | Fraud |
None of the limitations contained in this Clause 12 shall apply to the extent a liability arises or is increased as a result of fraud or fraudulent misrepresentation by the Buyer.
| 12.4 | Contingent or Non-quantifiable Claims |
The Buyer shall not be liable in respect of any Seller Claim to the extent that such Seller Claim is based upon a liability which is contingent only or is otherwise not capable of being quantified unless and until such liability ceases to be contingent and becomes an actual liability or becomes capable of being quantified, as the case may be, and is due and payable; provided that this Clause 12.4 shall not operate to avoid a claim made by the Seller in respect of a contingent or unquantifiable liability of which notice is given by the Buyer under Clause 12.1.1 within the applicable time limits specified in Clause 12.1.2 if the notice of such Seller Claim has been given (together with such material details relating to that Seller Claim of which the Seller shall be aware when giving it) before the expiry of the relevant period (even if such liability does not become an actual or quantifiable liability, as the case may be, until after the expiry of such period).
| 12.5 | Indirect Losses |
37
The Buyer shall not be liable under or in connection with this Agreement in respect of any indirect or consequential losses, any punitive or exemplary damages, in each case whether due to a breach of contract, breach of warranty, negligence or otherwise, whether actual or prospective.
| 12.6 | General |
| 12.6.1 | Until Completion has taken place in accordance with the terms and conditions of this Agreement: |
| (a) | the Seller may not make any Seller Claim under a Buyer Warranty; and |
| (b) | the Buyer shall not be subject to any liability under any Seller Claim under a Buyer Warranty. |
| 12.7 | Conduct of Third Party Claims |
38
| 13.1 | The Seller covenants with the Buyer and each Group Company that it shall not (and shall procure that no Seller Related Entity shall): |
| 13.1.1 | at any time during the period of [***] commencing on the Completion Date (the “Restricted Period”), directly or indirectly [***]; |
| 13.1.2 | at any time during the Restricted Period: |
| (a) | directly or indirectly [***]; or |
| (b) | consult with, advise or provide any other services for compensation to, [***]; |
| 13.1.3 | at any time during the Restricted Period, have any business dealings with, or solicit, entice or attempt to entice away, [***]; |
| 13.1.4 | at any time during the Restricted Period: |
| (a) | [***]; or |
| (b) | [***]; |
provided that the provisions of this Clause 13.1.4 shall not prevent any Seller Related Entity from placing a general advertisement for the recruitment of personnel or the engagement of any consultant and engaging any person as an Employee or consultant who responds to it.
| 13.1.5 | at any time after Completion, engage in any trade or business or be associated with any person firm or company engaged in any trade or business, using: |
| (b) | any trade or service xxxx, business or domain name, design or logo which, at Completion, was or had been used by any Group Company in connection with the Business; or |
39
| (c) | anything which is, in the reasonable opinion of the Buyer, capable of confusion with the words, xxxx, name, design or logo referred to in Clauses 13.1.5(a) or 13.1.5(b); |
| 13.1.6 | at any time after Completion, present itself or permit itself to be presented as: |
| (a) | connected in any capacity with any Group Company; or |
| (b) | interested or concerned in any way in the Sale Shares (or any of them); or |
| 13.1.7 | at any time after Completion, do or say, write or publish or broadcast anything which may be harmful to the reputation of any Group Company. |
| 13.3 | Nothing in Clause 13.1 shall prevent the Seller (or any Seller Related Entity) from: |
| 13.3.1 | holding for investment purposes only: |
| (a) | units of any authorised unit trust; or |
| (b) | not more [***] of any class of shares or securities of any privately held company other than a Named Competitor; or |
| (c) | not more than [***] of any class of shares or securities of any company traded on a recognised investment exchange (within the meaning of the Financial Services and Markets Act 2000). |
| 13.3.2 | continuing: |
| (b) | to hold an equity interest in any Former Group Companies other than the Group Companies following Completion; or |
| (c) | complying with Applicable Law. |
| 13.4 | The provisions of Clause 13.1.4 shall lapse and cease to apply to any Restricted Person whose employment or engagement with the Company or any Group Company (or any other member of the Buyer’s Group) is terminated by, at the request or with the consent of the Company, the relevant Group Company or such other member of the Buyer’s Group, as applicable. |
| 13.6 | The Parties acknowledge that the Seller has confidential information relating to the Business and that the Buyer is entitled to protect the goodwill of the Business as a result of buying the |
40
| Sale Shares. Accordingly, each of the covenants in Clause 13.1 is considered fair and reasonable by the Parties. |
| 13.8 | The consideration for the covenants in Clause 13.1 is included in the Purchase Price. |
| 13.9 | Each Group Company may enforce the terms of this Clause 13 (Restrictive Covenants) in accordance with the Contracts (Rights of Third Parties) Xxx 0000, provided always that, as a condition thereto, any such Group Company shall: |
| 13.9.1 | obtain the prior written consent of the Buyer; and |
| 13.9.2 | not be entitled to assign its rights under this Clause 13 (Restrictive Covenants). |
| 14.1 | Subject to Completion occurring, the Seller: |
| 14.1.1 | confirms, warrants and undertakes that at Completion: |
| (a) | neither it nor any Seller Related Entity will have any claim on any account whatsoever outstanding against any of the Directors, officers, Employees of any Group Company and that no agreement or arrangement will be outstanding under which any such person has any obligation of any kind to any Seller Related Entity; and |
| (b) | neither it nor any Seller Related Entity will have any claim on any account whatsoever outstanding against any Group Company; and |
| 14.1.2 | except for the claims or obligations existing under the Surviving Agreements, to the extent that any such claim or obligation exists, irrevocably and unconditionally waives such claim or obligation and releases each Group Company and any such person (except, in the case of such Director, officer or Employee, in the case of fraud) from any liability whatsoever in respect of such claim or obligation. |
| 14.2 | The Seller shall, and shall procure that each Seller Related Entity shall, following Completion: |
41
| (a) | information that would violate any Applicable Law; |
| (b) | information the disclosure of which would jeopardise any attorney-client privilege available to the Seller or any other Seller Group Company relating to such information; |
| (d) | any auditors’ and accountants’ work papers except in accordance with their normal disclosure procedures and then only after entering into their customary agreement relating to access; and |
42
| 14.3 | Each Group Company, and (in the case of Clause 14.1 only) each Director, Employee and professional adviser of a Group Company, may enforce the terms of Clauses 8.2, 14.1, and 14.2 in accordance with the Contracts (Rights of Third Parties) Xxx 0000, provided always that, as a condition thereto, any such person shall: |
| 14.3.1 | obtain the prior written consent of the Buyer; and |
| 14.3.2 | not be entitled to assign its rights under such Clauses. |
| 14.5 | Agreed Software: |
| 14.6 | The Seller shall, and shall procure that: |
| 14.6.1 | each Seller Related Entity shall, terminate the trademark licenses referred to in Clause 14.1.1(c) with effect from Integration Completion Date and submit the relevant termination agreements for registration with Rospatent; and |
| 14.6.2 | prior to Completion, Vezet Dobro LLC unconditionally, irrevocably and absolutely transfers all the Intellectual Property Rights in trademark Xx. 000000 (XXXXX XXXXX) to Kronos and registers such transfer with Rospatent no later than [***]. |
| 15.2 | Clause 15.1 shall not apply to the extent an Announcement is required: |
| 15.2.1 | by Applicable Law or regulation; |
| 15.2.2 | by any Governmental Authority or any regulatory or supervisory authority or any relevant securities exchange, or by any court, arbitral body or other authority of competent jurisdiction, |
in each case to which any relevant Party is subject, whether or not the same has the force of law. In such circumstances, the Party required to make an Announcement shall promptly notify the other Party and shall, to the extent reasonably practicable, consult with, and make all
43
reasonable attempts to agree with, the such other Party on the timing, contents and manner of the release of any such Announcement before making it.
| 15.3 | Without prejudice to Clauses 15.1 and 15.2, between the date of this Agreement and the Integration Completion Date the Parties shall (subject to the requirements of Applicable Law) agree the terms and manner of, and the timetable for, any Announcement or circular or other communication to employees, customers, suppliers, distributors, sub-contractors and other interested parties of the Parties and/or the Group Companies and to any applicable Governmental Authorities or other bodies and to the media or otherwise regarding this Agreement and all such Announcements or circulars or other communications shall be made in accordance with such agreement. |
| 16.1.1 | keep confidential: |
| (a) | the existence and the provisions of this Agreement and of any agreement entered into pursuant to this Agreement; |
| (b) | the negotiations relating to this Agreement (and any such other agreements); |
| (c) | all Confidential Information relating to any Group Company, the Business, the Integration or any member of the Buyer’s Group; and |
| (d) | [***], |
(together, the “Buyer Protected Information”);
| 16.1.2 | not disclose any of the Buyer Protected Information in whole or in part to any person; and |
| 16.1.3 | not make any use of any of the Buyer Protected Information. |
| 16.2.1 | keep confidential: |
| (a) | the existence and the provisions of this Agreement and of any agreement entered into pursuant to this Agreement; |
| (b) | the negotiations relating to this Agreement (and any such other agreements); and |
| (c) | all Confidential Information relating to the Seller or any other member of the Seller’s Group, |
(together, the “Seller Protected Information”);
44
| 16.2.2 | not disclose any of the Seller Protected Information in whole or in part to any person; and |
| 16.2.3 | not make any use of any of the Seller Protected Information. |
| 16.3 | The obligations set out in Clauses 16.1 and 16.2 shall not apply, or shall cease to apply, to: |
| 16.3.1 | any Protected Information disclosed with the prior written consent of the Party whose Protected Information would be disclosed; |
| (c) | who is an adviser for the purpose of advising the Buyer in connection with the transactions contemplated by the Transaction Documents or by Clause 16.3.2(a); |
provided that such disclosure is essential for these purposes and, in respect of each of Clauses 16.3.2(a) to 16.3.2(c) (inclusive), that the Buyer shall procure that such person treat that Protected Information as confidential;
| 16.3.4 | any Protected Information which prior to its disclosure was already lawfully known by such person (or which was subsequently disclosed or becomes available to such person): |
| (a) | without any obligation on such person to maintain its confidentiality or otherwise restricting its use or disclosure; and |
| (b) | if such Protected Information was obtained by such person from another person, such other person was not bound by any obligation to keep such Protected Information confidential; |
| 16.3.5 | any Protected Information which, at the time of its disclosure or subsequently, was or has become a part of the public domain otherwise than as a consequence of a |
45
| breach of this Agreement or any other duty or obligation of confidentiality by any person; or |
| 16.4 | The burden of proof lies with the Party seeking to rely on Clause 16.3.6 to demonstrate that any of the circumstances set out in Clause 16.3.6 applies to any Protected Information. |
| 16.5 | If the Party seeking to rely on Clause 16.3.6 is required to disclose any Protected Information for the purpose set out in Clause 16.3.6, prior to such disclosure such Party will (unless prohibited to do so by law) give to the other Party prompt written notice of the information which the first Party proposes to disclose (being the minimum amount of information consistent with satisfying its obligations) and will take into account any reasonable comments which the other Party may have in relation to the content, timing and manner of despatch of the disclosure and take such steps as the other Party may reasonably require to enable the other Party to mitigate the extent of or avoid the requirement of any such disclosure. |
| 18.1 | This Agreement and any Dispute shall be governed by and construed in accordance with the laws of England. |
46
| party, make the remaining appointments forthwith. Notwithstanding any provision to the contrary in the Rules, the parties and arbitrators may nominate and the LCIA may appoint arbitrators (including the Chairman of the tribunal) from among the nationals of any country, whether or not a party is a national of that country. |
| 18.4 | The seat, or legal place, of arbitration shall be London, England, at a location to be determined by the tribunal. The language to be used in the arbitral proceedings shall be English. Where testimony or a document is provided in a language other than English, a translation of such testimony or document shall be provided in the English language, and shall be certified as a true, complete and accurate translation by a recognised translator. |
| 18.5 | Any such award shall be final and binding on the Parties and judgment upon the award may be entered in any court having jurisdiction and any right of appeal under the Arbitration Xxx 0000 or otherwise or reference of points of law to the courts is hereby waived, to the extent that such waiver can be validly made. |
| 18.6 | Each Party retains the right to seek interim, provisional or conservatory measures and to confirm and enforce any arbitral award, and any such request shall not be deemed incompatible with the agreement or a waiver of the right to arbitrate. The courts of England, Cyprus, the Netherlands or the Russian Federation shall have non-exclusive jurisdiction in respect of any such interim, provisional or conservatory measure. A Party may seek confirmation or enforcement of an arbitral award in any court having jurisdiction. |
| 18.7 | Each Party hereby consents generally in respect of any arbitration proceedings arising out of, or in connection with, this Agreement or a Dispute hereunder to the giving of any relief or the issue of any process in connection with such proceedings including the making, enforcement or execution against any property (irrespective of its use or intended use) of any order or judgment which may be made or given in such proceedings. |
| 18.8 | Each Party agrees that the arbitration agreement set out in this Clause 18 (Governing Law and Dispute resolution) and the arbitration agreement contained in each other Transaction Document (other than the Local Services Agreements and all documents entered into pursuant to the Local Services Agreements) shall together be deemed to be a single arbitration agreement. |
47
| the arbitration(s) which are to be consolidated under the consolidation order, all parties to those arbitration(s) and the LCIA Registrar. Any appointment of an arbitrator in the other arbitrations before the date of the consolidation order will terminate immediately and the arbitrator will be deemed to be discharged. This termination is without prejudice to the validity of any act done or order made by that arbitrator or by any court in support of that arbitration before that arbitrator’s appointment is terminated; his or her entitlement to be paid proper fees and disbursements; and the date when any claim or defence was raised for the purpose of applying any limitation bar or any similar rule or provision. If this clause operates to exclude a Party’s right to choose its own arbitrator, each Party irrevocably and unconditionally waives any right to do so. |
| 18.11 | To the extent permitted by Applicable Law, each Party waives any objection, on the basis that a Dispute has been resolved in a manner contemplated by Clauses 18.9 to 18.10, to the validity and/or enforcement of any arbitral award. |
| 18.12 | Each Party agrees that any arbitration under this Clause 18 (Governing Law and Dispute resolution) shall be confidential to the Parties and the arbitrators, and that each Party shall therefore keep confidential, without limitation, the fact that the arbitration has taken place or is taking place, all non-public documents produced by any other Party for the purposes of the arbitration, all awards in the arbitration and all other non-public information provided to it in relation to the arbitral proceedings, including hearings, save to the extent that disclosure may be requested by a regulatory authority, or required of it by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. |
| 18.13 | The law of this arbitration agreement, including its validity and scope, shall be English law. |
| 18.14 | This arbitration agreement shall be binding upon any person who acquires rights under this Agreement by operation of law or otherwise. Any such person who intends to commence legal proceedings in relation to a Dispute arising out of or in connection with this Agreement shall, as a precondition of commencing such proceedings, give prior written notice to all the Parties to this Agreement that it agrees to be bound by this Clause 18 (Governing Law and Dispute resolution). |
| 19.1 | Entire agreement |
| 19.1.1 | This Agreement and other Transaction Documents constitute the whole Agreement between the Parties relating to the subject matter of this Agreement to the exclusion of any terms implied by law (to the extent that the same may be excluded by contract) and supersede any previous discussion, arrangement, understanding or agreement between the Parties (whether written or oral) in relation to such subject matter. In particular (but without limitation), this Agreement and such documents supersede the Original Agreement. |
| 19.1.2 | Each Party acknowledges that, in entering into this Agreement and the other Transaction Documents, it is not relying on any statement, representation, assurance or warranty of any person (whether a Party to this Agreement or not) (a “Statement”) other than any Statement (an “Agreed Statement”) as expressly set out in this Agreement or such other Transaction Documents. |
| 19.1.3 | Each Party agrees and undertakes to the other Party that: |
| (a) | it shall have no rights, claims or remedies (and hereby irrevocably waives any such rights, claims or remedies) in relation to any Statement (including |
48
| for any Statement made, repeated or deemed made, whether negligent or innocent) other than an Agreed Statement; and |
| (b) | the only rights and remedies available to it arising out of or in connection with any Agreed Statement shall be solely for breach of contract, in accordance with the provisions of this Agreement (and each Party hereby irrevocably waives any other rights and remedies in relation to any Agreed Statement (including those in tort or arising under the Xxxxxxxxxxxxxxxxx Xxx 0000 or any other statute)). |
| 19.1.4 | Nothing in this Clause 19.1 shall limit or exclude any liability for fraud. |
| 19.2 | Effect of Completion |
Any provision of this Agreement and any other documents referred to in it which is capable of being performed after but which has not been performed at or before Completion, and all warranties and covenants and other undertakings contained in or entered into pursuant to this Agreement, shall remain in full force and effect notwithstanding Completion.
| 19.3 | Variation and Waiver |
| 19.3.2 | A waiver of any right or remedy under this Agreement or by law shall only be effective if given in writing and signed by the person waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default. |
| 19.3.5 | A Party which: |
| (a) | waives a right or remedy granted to such Party, or releases any other Party from any liability, under this Agreement or by law; or |
| (b) | takes or fails to take any action against another Party; |
does not, and shall not be deemed to, affect its rights in relation to any other Party.
| 19.4 | Counterparts and Creation of Agreement |
This Agreement may be executed in any number of counterparts, each of which when duly executed shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
49
| 19.5 | Successors in Title |
This Agreement shall be binding on and shall enure for the benefit of the successors in title of each Party.
| 19.6 | Third Party Rights |
| 19.6.4 | The rights specified in Clause 19.6.2 shall not be assignable. |
| 19.7 | Assignment, Etc. |
| 19.7.1 | Save as specified in Clause 19.7.2, this Agreement is personal to the Parties and no Party shall, without the prior written consent of each other Party: |
| (a) | assign, transfer, mortgage, charge, declare or establish a trust of or deal in any other manner with this Agreement or any of its rights (or any claims or causes of action arising out of them) and obligations under or arising out of this Agreement (or any document referred to in it), or purport to do any of the same; or |
| (b) | sub-contract or delegate in any manner any or all of its obligations under this Agreement to any third Party or agent. |
50
| 19.8 | Remedies |
| 19.8.1 | Safe as specified in Clause 19.8.3, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. |
| 19.8.2 | Without prejudice to any other rights or remedies that any Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by such Party. Accordingly, each Party agrees and undertakes that each other Party shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement. |
| 19.8.3 | |
| (a) | Each Party agrees and undertakes to the other Party that the only rights and remedies available to it arising out of or in connection with this Agreement or its subject matter or any other Transaction Document shall be solely for breach for contract. |
| (b) | Neither Party shall be entitled to rescind or (except as otherwise expressly provided in this Agreement) terminate this Agreement, for breach of contract, for negligent or innocent misrepresentation or otherwise. |
| 19.9 | Severance |
| (a) | be deemed to be modified to the minimum extent necessary so as to render such provision or part-provision valid, legal and enforceable (and, without prejudice to the preceding wording, the Parties agree to negotiate in good faith to amend such provision or part-provision so that, as amended, it is legal, valid and enforceable and, as far as possible, achieves the intended commercial result of the original provision); or |
| (b) | if it is not possible to modify (and/or the Parties fail to agree an appropriate amendment to) such provision or part-provision as envisaged by Clause 19.9.1, to the relevant extent, be deemed not to form part of this Agreement. |
| 19.9.2 | In the circumstances referred to in Clause 19.9, the legality, validity and enforceability of the other provisions of this Agreement (including, in relation to any part-provision, the remaining parts of the relevant provision), and, where relevant, the legality, validity and enforceability of such provision or part-provision under the law of any other jurisdiction, shall not be affected or impaired. |
| 19.10 | Notices |
51
| 19.10.1 | A notice or other communication (a “Notice”) given to a Party under or in connection with this Agreement shall be: |
| (a) | in writing and in English (or accompanied by a properly prepared translation into English); |
| (b) | sent to such Party at such Party’s Notified Address; and |
| (c) | sent by a Permitted Method. |
Permitted Method | Date on which Notice deemed given |
Personal delivery | When left at the Notified Address |
Pre-paid signed for post or special delivery (or airmail, if the destination is outside of the country of origin). | 9:00 a.m. on the [***] after posting |
Commercial courier | Time and date of signature of the courier’s receipt at the Notified Address |
Subject to subsequent satisfaction of the requirements of Clause 19.10.9, on receipt of an automated delivery receipt or confirmation of receipt from the relevant server |
| 19.10.3 | In the event that, under the provisions of Clause 19.10.2, a Notice would be deemed to have been received at a time other than during normal business hours in the place of receipt (normal business hours being deemed for these purposes to be between 9:00 a.m. and 5:00 p.m. (local time) on a Business Day in the place of receipt), such Notice shall instead be deemed to have been received when business hours next start in the place of receipt. |
| 19.10.5 | The initial Notified Address of each of the Parties is as set out below: |
52
Name of Party | Address | Telephone number | Marked for the attention of: | |
FASTEN CY LIMITED | Xxxxxxxxxx 0, Xxxxxx 000, 0000, Xxxxxxx, Xxxxxx | [***] | [***] | [***] |
MLU B.V | Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands Copy to: Xxxxxxx Corbett Morgan, Xxxxx & Bockius UK LLP Condor House, 0-00 Xx. Xxxx’x Xxxxxxxxxx Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx | [***] | [***] | [***] |
| 19.10.7 | To prove service of any Notice, it shall be sufficient to prove that: |
| (a) | if sent by pre-paid signed for post, special delivery, airmail or commercial courier, a receipt was obtained for delivery at the Notified Address; or |
| (b) | if sent by e-mail, the e-mail containing the Notice was properly addressed to the relevant party’s Notified Address and sent. |
| 19.10.8 | The provisions of this Clause 19.10 shall not apply to the service of any proceedings or other documents in any legal action. |
| 19.11 | Costs and Expenses |
Save as otherwise set out in this Agreement or any document referred to in it, each Party shall pay its own costs and expenses arising in connection with the negotiation, preparation, execution, registration and performance of this Agreement (and any documents referred to in it).
53
| 19.12 | Consequences of Termination |
| 19.12.1 | Except as provided in this Clause 19.12, no Party shall have any further obligation to any other Party or other person under this Agreement following its termination. |
| 19.12.2 | The following provisions shall survive termination of this Agreement and continue in full force and effect: |
| (a) | Clauses 1 (Definitions and Interpretations), 15 (Announcements), 16 (Confidentiality), 18 (Governing Law and Dispute resolution) and 19 (Miscellaneous) (the “Surviving Provisions”). |
| 19.12.3 | Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued or become due prior to termination, including as a result of any breach of the Agreement which occurred or existed prior to termination. |
[***].
54
IN WITNESS of which this Agreement has been executed on the date written at the start of this Agreement. | |
| |
EXECUTED by | |
for and on behalf of FASTEN CY LIMITED | ) |
by Xxxxxxx Xxxxx | ) |
Managing Director | ) |
| /s/ Xxxxxxx Xxxxx |
| |
| |
| |
| |
| |
| |
Signature Page 1 – SPA
EXECUTED by | |
for and on behalf of MLU B.V. | ) |
by Xxxxxxx Xxxxxxx, | ) |
Managing Director B | ) |
| /s/ Xxxxxxx Xxxxxxx |
| |
| |
| |
| |
Signature Page 2 – SPA
