Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Item 601(a)(6) of Regulation S-K. This exhibit is an English translation of a foreign language document. The Company hereby agrees to supplementally furnish to the...
EHXIBIT 2.02
Certain portions of this exhibit (indicated by “[***]”)
have been omitted
pursuant to Item 601(a)(6) of Regulation S-K.
This exhibit is an English translation of a foreign language
document. The Company hereby agrees to supplementally furnish to
the SEC, upon request, a copy of the foreign language
document.
FORM OF
PREFERRED SHARES SALE AND PURCHASE AGREEMENT
OF BANK XXXXX NOVA JOINT-STOCK COMPANY
(SUBSIDIARY BANK OF FORTEBANK JOINT-STOCK COMPANY)
By and between
Xx. XXXXX ZHAMITOVICH UTEMURATOV
and
FREEDOM FINANCE JSC
Dated
____________, 2020
PREFERRED SHARES SALE AND PURCHASE AGREEMENT
This
preferred shares sale and purchase agreement (as defined below)
(hereinafter referred to as the “Agreement”) is made on
__________, 2020 by and between Xx. Xxxxx Zhamitovich Utemuratov,
citizen and resident of the Republic of Kazakhstan, IIN
571113350279, residing at 16, 0000, Xxxxxx Xxx. , Xxx-Xxxxxx, xxx
Xxxxxxxx of Kazakhstan, (hereinafter referred to as the
"Seller") and the FREEDOM
FINANCE Joint-Stock Company, registered in accordance with the
legislation of the Republic of Kazakhstan, located at "Esentai
Tower" BC, Floor 7, 77/7 Al Farabi Ave., Almaty, 050040 the
Republic of Kazakhstan, duly represented by the Chairman of the
Management Board, Xx. Xxxxxx Xxxxxxxx, acting based on the Charter
(hereinafter referred to as the “Buyer”), collectively referred to
as the Parties and
individually as the Party.
PREAMBLE
WHEREAS, the Seller holds all issued and outstanding
preferred shares ISIN KZ1P00003305 in total of 1,000,000 (One
million) shares (hereinafter referred to as the "Preferred Shares") issued by Bank Xxxxx
Nova JSC (Subsidiary Bank of ForteBank JSC) BIN 090740019001
located at 00 Xxxxxxxxxxx Xxxxxxx xxx., Xxxxxx district,
Nur-Sultan, 010000 the Republic of Kazakhstan (hereinafter referred
to as the "Bank");
WHEREAS, the Seller intends to sell to the Buyer, and the
Buyer intends to purchase the Preferred Shares from the Seller in
accordance with the terms and conditions set forth
herein,
The
parties hereto agree as follows:
ARTICLE
1 TERMS AND INTERPRETATION
1.1
Terms. Unless otherwise provided herein,
capitalized terms used in this Agreement shall have the meanings as
specified in this Article:
Business Day means any day, other than
Saturday, Sunday or other day on which the second-tier banks
located in Almaty or Nur-Sultan, the Republic of Kazakhstan, are
authorized or shall be closed and not to carry out their activities
under applicable Laws.
Closing means exchange of orders for the
Preferred Shares writing-off from the Seller’s personal
account and placing of the Preferred Shares to the Buyer’s
personal account with “Central Securities Depository”
JSC pursuant to Article 4 hereof.
Closing Date means date specified in the
Seller’s notice to be send to the Buyer pursuant to Article
3.2 on which the Closing
occurs.
Encumbrances mean limitations of title
arising under the Laws or agreement, and restricting possession,
use or disposition of such property.
Legal Proceeding means a dispute pending
in court or arbitration, as well as on extrajudicial dispute
resolution procedure.
Law means any law, ordinance,
regulation, rule, code, order, constitution, treaty, common law,
judgment, other requirement or rule of law of any governmental
authority of the Republic of Kazakhstan.
OFAC has the meaning set forth in
Article 6.4.
Losses mean expenses that are incurred
or shall be incurred by the person whose right is violated, loss or
damage to the property of such person (actual damage).
Subordinated Debt means the subordinated
debentures of the Bank set forth in Annex (Subordinated Debt)
hereto.
Bank’s Ordinary Shares Sale and Purchase
Agreement means the Bank’s Ordinary Shares Sale and
Purchase Agreement is entered into by and between ForteBank JSC as
a seller and the Buyer as a buyer on July 29, 2020.
Transaction Documents means this
Agreement, the Bank’s Ordinary Shares Sale and Purchase
Agreement, as well as the "Transaction Documents" as defined in the
Bank’s Ordinary Shares Sale and Purchase
Agreement.
AIFC means Astana International
Financial Center.
AFR means the Agency for Regulation and
Development of the Financial Market of the Republic of
Kazakhstan.
1.2
Interpretation. For purposes of this
Agreement:
(a)
Headings in this
Agreement are for reference only and shall not affect the
interpretation of this Agreement.
(b)
References to
Articles, Sections, Annexes and Schedules are to the Articles,
Sections, Annexes and Schedules in or attached to this
Agreement.
(c)
The Annexes are
part of this Agreement and shall have effect as if set out in full
in the body of this Agreement. Any reference to this Agreement
includes the Annexes.
(d)
References to any
agreement or other document means such agreement or document as
amended or supplemented from time to time, unless specifically
stated otherwise.
(e)
References to a Law
means such Law as amended from time to time and includes any
successor legislation thereto and any regulations promulgated
thereunder.
(f)
The words
"including" and "includes" shall be deemed to be followed by the
words "without limitation".
(g)
The words "herein,"
"hereof," "hereby," "hereto," and "hereunder" refer to this
Agreement as a whole.
(h)
No rule of
construction shall apply to the disadvantage of a party because the
party was responsible for the preparation of this Agreement or any
part of it.
ARTICLE
2 SALE AND PURCHASE
2.1
Sale and Purchase of Preferred Shares.
The Seller undertakes to transfer the Preferred Shares into the
ownership of the Buyer, and the Buyer undertakes to accept the
Preferred Shares and pay the Purchase Price and other payments
pursuant to the terms and procedures as provided
herein.
ARTICLE
3 PURCHASE PRICE
3.1
Purchase Price. The purchase price of
the Preferred Shares is 1,040,000,000.00 (one billion forty
million) KZT (hereinafter - “Purchase Price”).
3.3
Payment of the Purchase Price. No later
than 3 (three) Business Days preceding the Closing Date designated
in the Seller's notice received in accordance with Article 3.2
hereof, the Buyer will pay the Seller the Purchase Price for the
Preferred Shares.
ARTICLE
4 CLOSING
Closing. Subject to the Buyer's payment
of the Purchase Price in accordance with Article 3.3 hereof, the
Closing will take place by issue of orders by the Parties to the
Central Securities Depository JSC (hereinafter referred to as the
CD) for writing-off of the
Preferred Shares from the Seller’s personal account and
placing of the Preferred Shares to the Buyer’s personal
account with the CD’s accounting system that will be at the
date designated in the Seller’s notice given to the Buyer
pursuant to Article 3.2 hereof. If the
sale and purchase of the Preferred Shares will be carried out in
the regulated securities market or on the AIFC stock exchange, the
Closing procedure will be agreed by the Parties
separately.
ARTICLE
5 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Buyer that, to the best of
his knowledge and belief, 3 (three) years before the date hereof,
all statements containing in Article 5, are true and
correct.
5.1
Seller. The Seller is an individual,
citizen of the Republic of Kazakhstan, has legal status and
capacity.
5.2
Bank and Shares. The Preferred Shares
consist of 1,500,000 (One million five hundred thousand) shares,
1,000,000 (One million) of which are issued and outstanding. The
issued and outstanding Preferred Shares constitute 100% of the
outstanding Preferred Shares of the Bank. The Seller is the owner
of the Preferred Shares; the Preferred Shares are free of
Encumbrances. Upon consummation of the transactions contemplated by
this Agreement, the Buyer shall own all of the Preferred
Shares.
ARTICLE
6 REPRESENTATIONS AND WARRANTIES OF THE BUYER
The
Buyer represents and warrants to the Seller that, to the best of
his knowledge and belief, 3 (three) years before the date hereof,
all statements containing in Article 6, are true and correct as of
the date hereof and on the Closing Date.
6.1
Buyer. The Buyer is a joint-stock
company duly organized under the Laws. The Buyer has full corporate
power and authority to enter into this Agreement and the other
Transaction Documents to which it is a party, to carry out its
obligations hereunder.
6.2
Supervisory response measures. No
supervisory response measures were applied to the Buyer, except the
measures posted on the AFR website. The Buyer is not in a state of
insolvency.
6.3
Purchase
Price
(a)
The Buyer owns the
funds necessary to fulfill its obligations hereunder. The funds are
free from any Encumbrances and (or) claims of third
parties.
(b)
The funds necessary
to fulfill Buyer’s obligations hereunder are of non-criminal
origin obtained from lawful activities in compliance with the
applicable anti-money laundering and terrorism financing, as well
as anti-corruption rules and regulations.
6.4
OFAC. Buyer is not a person whom the
United States Person is restricted from doing business under the
regulations of the Office of Foreign Assets Control (hereinafter
referred to as the “OFAC”) (including those named on
OFAC's Specially Designated and Blocked Persons List), or under any
statute, executive order or other governmental action. To the
Buyer's Knowledge, the Buyer is not engaged in any deals or
transactions or has otherwise been associated with any Person or
Persons whom a United States Person is restricted from doing
business with under regulation of OFAC or under any statute,
executive order or other governmental action. The Buyer understands
and acknowledges that the Seller may be legally prohibited from
completing the transactions contemplated in this Agreement, if the
Buyer is determined to be a Person engaging in or that has engaged
in transactions with a Person or Persons whom a United States
Person is restricted from doing business with under regulation of
OFAC or under any statute, executive order or other governmental
action.
6.5
Brokers. Except for the sale and
purchase of the Preferred Shares on the regulated securities market
or on the AIFC stock exchange, no person has acted, directly or
indirectly, as a broker, finder or financial advisor for the Buyer
in connection with the transactions contemplated by this Agreement
and no Person is entitled to any fee or commission or like payment
in respect thereof.
6.6
Organization and Authority of the Buyer.
The Buyer is a joint stock company duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization. The Buyer has full corporate power and authority to
enter into this Agreement and the other Transaction Documents to
which it is a party, to carry out its obligations hereunder and
thereunder, and to perform the transactions contemplated hereby and
thereby. The execution and delivery by Buyer of this Agreement and
the other Transaction Documents to which it is a party, the
performance by Buyer of its obligations hereunder and thereunder,
and the performance of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by the
Buyer, and (assuming due authorization, execution and delivery by
each other party hereto) constitutes a legal, valid and binding
obligation of the Buyer enforceable against the Buyer in accordance
with its terms.
6.7
Conflicts; Consent of Third Party. The
execution, delivery and performance by the Buyer of this Agreement
and the other Transaction Documents, and the consummation of the
transactions contemplated hereby and thereby, do not and will not
(a) conflict with or result in a violation or breach of, or default
under, any provision of the certificate of incorporation, by-laws
or other organizational documents of the Buyer, (b) conflict with
or result in a violation or breach of any provision of any Law or
governmental regulations applicable to Buyer, and (c) conflict with
or result in a violation or breach of any provision of any
contracts, agreements, securities or other transactions to which
Buyer or its Affiliates is a party or issuer.
6.8
Legal Proceedings. There are no Legal
Proceedings pending or, to Buyer's Knowledge, threatened that are
reasonably likely to prohibit or restrain the ability of the Buyer
to enter into this Agreement or perform the transactions
contemplated hereby.
ARTICLE
7 CONDITIONS TO CLOSING
7.1
Conditions. Obligations to buy and sell
the Preferred Shares hereunder shall be fulfilled provided that the
Bank's banking license is not suspended and revoked, and subject to
the fulfillment of the following conditions:
(a)
By the
Buyer:
(i)
Closing conditions
stipulated in Article 8.9 of the Bank’s Ordinary Shares Sale
and Purchase Agreement shall have been fulfilled;
(ii)
All required
corporate consents and approvals for the execution and performance
of this Agreement or the transactions contemplated hereby and other
Transaction Documents shall have been received;
(iii)
acquisition by the
Buyer independently and (or) acquisition by a person, designated by
the Buyer and agreed with the Seller, of the rights of claim from
each of the creditors for the Subordinated Debt at a price that
will be equal to the sum of the Subordinated Debt nominal value and
the accrued but not paid interest as of December 23, 2020. This
condition should be completed after the Buyer fulfills the
pre-conditions stipulated in Article 8.9 of the Bank’s
Ordinary Shares Sale and Purchase Agreement, but no later than
December 23, 2020.
(c)
The Seller shall
have received the notary certified consent of the spouse to enter
into this Agreement.
(d)
The Parties shall
notify each other as the conditions stipulated in subparagraphs 7.1
(a) and 7.1 (b) above are fulfilled, and deliver the originals or
notary certified copies of documents evidencing such fulfillment.
The texts of the Buyer's corporate consents and approvals should be
agreed between the Seller and the Buyer in advance.
7.2.
Loss of profit. A liability of the
Parties for loss of profit shall be excluded
hereunder.
ARTICLE
8 TERMINATION OF THE AGREEMENT
8.1
Termination. This Agreement may be
terminated prior to the Closing:
(a)
By mutual written
consent of the Seller and the Buyer;
(b)
By the Buyer: by
written notice to the Seller, if the condition set forth in Article
7.1 (b) hereof is not fulfilled by December 23, 2020;
(c)
By the Seller: by
written notice to the Buyer, if any of the conditions set forth in
Article 7.1 (a) hereof is not fulfilled by December 23,
2020;
(d)
By the Buyer or by
the Seller, in the event of the adoption of any act of a
governmental body restricting or prohibiting the performance of the
transactions contemplated by this Agreement;
(e)
The Parties hereby
agree that, subject to the declaration of a state of emergency or
quarantine throughout the territory of the Republic of Kazakhstan
and (or) in the cities of Almaty and (or) Nur-Sultan, the deadlines
for the fulfillment of the obligations of the Parties shall be
suspended for the duration of such state of emergency or
quarantine, if such quarantine or state of emergency affect the
time of the fulfillment by the Parties of their
obligations.
ARTICLE
9 MISCELLANEOUS
9.1
Continuity. The representations and
warranties of the Parties contained herein are valid until the
Closing Date.
9.2
Duration. The Agreement shall come into
effect from the date of receipt of corporate approvals for the
execution and performance of the Agreement and other transactions
contemplated by this Agreement by the Buyer and is valid until the
Parties fully perform their obligations.
9.3
Expenses. Except as otherwise provided
in this Agreement or other Transaction Documents, the Seller, on
one hand, and the Buyer, on the other hand, shall bear their own
expenses incurred in connection with the negotiation and execution
of this Agreement, the other Transaction Documents, any other
agreement, document contemplated by this Agreement, and the
performance of the transactions stipulated by thisAgreement. The
Buyer shall be responsible for all filing and other fees payable in
connection with filings or submissions with any Governmental
Authority.
9.4
Notifications. All notices, requests,
consents, claims, demands, waivers, and other communications
hereunder shall be in writing and shall be deemed to have been
given: (i) when delivered, if delivered personally to the intended
recipient (when left at the correct address); (ii) when received by
the addressee, if sent by a recognized courier service; (iii) on
the date sent by email (with confirmation of receipt of the email
and any attachments) if sent during normal business hours of the
recipient, and on the next business day if sent after normal
business hours of the recipient; or (iv) on the 5th (fifth)
business day after the date mailed, postage prepaid. Such
communications must be sent to the respective parties at the
following addresses (or at such other address for a party as shall
be specified in a notice given in accordance with this Article
9.4):
(a) when
sending the correspondence to the Seller:
Bulat
Zhamitovich Utemuratov
[***]
(b) when
sending the correspondence to the Buyer:
Freedom
Finance JSC
"Esentai Tower" BC,
Floor 7, 00/0
Xx
Xxxxxx Xxx., Xxxxxx, Xxxxxxxxxx 000000
Email:
xxx@xxxx.xx
To:
Chief Financial Officer
9.5
Separability. If any
term or provision of this Agreement is invalid, illegal, or
unenforceable, such invalidity, illegality, or unenforceability
shall not affect any other term or provision of this Agreement in
such jurisdiction and such circumstances are not the grounds to
admit entire Agreement as invalid or unenforceable.
9.6
Confidentiality. No Party has the right
to disclose information about execution of this Agreement and (or)
its content to any person, except as otherwise provided by the
Law.
9.7
Entirety. This Agreement and the other
Transaction Documents constitute the entire agreement and
supersedes all prior agreements and understandings (both written
and verbal), among the parties regarding the subject matter hereof.
If there is an inconsistency between the statements in the body of
this Agreement and those in the other Transaction Documents, the
Annexes and Schedules, the statements in the body of this Agreement
will control.
9.8
Successors and Cessionary. This
Agreement is binding upon and drawn up to the benefit of the
Parties hereto and their respective successors and permitted
assigns. Except as otherwise provided in this Agreement, no party
may assign its rights or obligations hereunder without the prior
written consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided that prior to the
Closing Date the Buyer may, without the prior written consent of
the Seller, assign all or any portion of its rights under this
Agreement to one or more of its direct or indirect wholly-owned
subsidiaries or shareholders, and such assignment does not entail a
change in the general terms for completion of the
transaction.
9.9
Amendment and Waiver. This Agreement may
only be amended, modified or supplemented by an agreement in
writing signed by each party hereto. No waiver by any party of any
of the provisions hereof shall be effective unless explicitly set
forth in writing and signed by the party so waiving. No waiver by
any party shall operate or be construed as a waiver in respect of
any failure, breach or default not expressly identified by such
written waiver, whether of a similar or different character, and
whether occurring before or after that waiver. No failure to
exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right or
remedy.
9.10
Governing Law and Jurisdiction. This
Agreement shall be governed by and construed in accordance with the
Law. Any dispute arising out of or in connection to this Agreement
shall be subject to the jurisdiction of the courts of the Republic
of Kazakhstan. The courts of the Republic of Kazakhstan should have
the exclusive jurisdiction to resolve any and all disputes between
the Parties hereto, including disputes on matters of law or equity
arising out of or in connection with this Agreement or contracts,
deals, instruments or documents stipulated hereby and the Parties
hereby express their consent and agree to submit to the exclusive
jurisdiction of the courts of the Republic of Kazakhstan. Each
Party hereby waives any right to declare and agrees not to declare
in any dispute, to the extent permitted by the Law, any claim or
demand that:
(a)
The party does not
submit to the jurisdiction of the courts of the Republic of
Kazakhstan;
(b)
The party and its
property are immune from any judicial act adopted by the court of
the Republic of Kazakhstan; and
(c)
any court or other
proceeding held in the courts of the Republic of Kazakhstan is an
improper way of considering disputes between the
Parties.
Furthermore, each
Party agrees that it will not declare or support any action of its
parent organization or its business owner or the person who
provided financing to the Buyer (for the execution and performance
of the Agreement), or their representatives, or actions of the
Parties against any of the above persons, in any way related to
this Agreement or any transaction contemplated by this Agreement,
including, but not limited to, disputes arising out of or in any
way connected with any legally binding document or fulfillment
thereof in any place and method of dispute resolution, except the
courts of the Republic of Kazakhstan.
9.11
Language. This Agreement is executed in
the Russian and Kazakh languages, the interpretation of the
Agreement in the Russian language shall prevail.
9.12
Counterparts. This Agreement is executed
in 2 (two) counterparts having equal legal force.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed as of the date first written in preamble by their
respective duly authorized officers.
|
BULAT
ZHAMITOVICH UTEMURATOV
___________________________________
|
FREEDOM
FINANCE JSC
___________________________________
Name:
Xxxxxx Xxxxxxxx
Position: Chairman
of the Management Board
|
