Contract
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
4 FEBRUARY 2024
JSC SOLID MANAGEMENT
and
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
THIS AGREEMENT (the "Agreement") is made on 4 February 2024
BETWEEN:
| (1) | YANDEX N.V., a public limited company (naamloze vennootschap) formed under the laws of the Netherlands, having its corporate seat at Amsterdam, its registered office at Xxxxxxxx Xxxxxxxxx 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx, and registered with the trade register of the Chamber of Commerce under number 27265167 (the "Seller"); and |
together the "Parties" and each a "Party".
RECITALS:
(Capitalised terms used in these Recitals that are not set out above are defined in Clause 1.1 below)
| (B) | WHEREAS, the Purchaser proposes to acquire the Sale Shares, in accordance with the terms and conditions of this Agreement; |
| (C) | WHEREAS, the Seller has agreed to sell and to transfer to the Purchaser the Sale Shares upon the terms and subject to the conditions set out in this Agreement; |
| (E) | WHEREAS, in addition to this Agreement, the Parties have further agreed to enter into the other Transaction Documents as an integral part of and in order to further the transactions contemplated hereby and which together form the entire agreement between the Parties; and |
| (F) | WHEREAS, in consideration of the mutual promises, agreements, warranties and provisions contained in this Agreement, the receipt, sufficiency and entirety of which is hereby acknowledged, the Parties have agreed the following. |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
IT IS AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
"Anti-Bribery Law" means laws, regulations or orders relating to anti-bribery or anti-corruption (governmental or commercial), without limitation, laws that prohibit the corrupt payment, offer, promise, or authorisation of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any government official, commercial entity, or any other person to obtain a (business) advantage; such as, without limitation, the United Nations Convention Against Corruption approved by Decree dated as of 12 June 2008, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, and all national and international laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Complete Target Group" means the Company and the Target Group Companies;
"Complete Target Group Advisory Expenses" means an amount of RUB [***] ([***] Rubles) incurred by the Complete Target Group in respect of the fees of [***] pursuant to an agreement dated [***] (and, for the avoidance of doubt, any additional fees, expenses or Taxes thereunder, or under any similar agreement with Start Capital, shall not be Complete Target Group Advisory Expenses);
"Completion" means the First Completion or the Second Completion, as the context requires, and "Complete" shall be construed accordingly;
"Completion Date" means the First Completion Commencement Date or the Second Completion Commencement Date, as the context requires;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| (a) | any amount raised by acceptance under any credit facility; |
| (b) | any deferred payment obligation, liability under which has matured; |
| (c) | any amount raised pursuant to any issue of bonds, notes, debentures, loan stock or any similar instrument; |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| (d) | any amount of liability in respect of any lease or hire purchase contract which would in accordance with the rules and principles used to prepare the consolidated financial statements of the Complete Target Group be treated as a finance or capital lease; |
| (f) | the amount of any liability in respect of any guarantee or indemnity in favour of a third party for any of the items referred to in the preceding paragraphs (a) to (e) (both inclusive), |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Group Information Technology" means Information Technology that was owned by the Complete Target Group as at the Locked Box Date;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Intellectual Property" means:
| (a) | patents, rights in inventions, know-how and trade secrets, copyright and related rights, registered designs, design rights, database rights, semiconductor topography rights, trademarks and service marks, trade names, business names, rights in get-up and logos, domain names, and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them); and |
| (b) | all rights or forms of protection having equivalent or similar effect in any jurisdiction; |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Material Intellectual Property" means: (i) any Group Intellectual Property having a book value in excess of RUB [***] ([***] Rubles) for each unit; (ii) such other Group Intellectual Property that is necessary for the Main Activities of the Complete Target Group; and (iii) such other Group Intellectual Property that was developed within the Prospective Streams which, on the date of this Agreement, is necessary, or could reasonably be expected to be necessary, for the further development of such Prospective Streams;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Pre-Completion Reorganisation" has the meaning as the Parties have agreed in writing on the date of this Agreement;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Purchaser Depositary" means JSC Specialized Depositary "Infinitum" registered with the Russian unified state register of legal entities under number [***];
"Purchaser Financing Provider" means any person (including any individual, bank or credit institution) that: (i) lends money or provides credit to the Purchaser, any of the Underlying Investors, their respective Affiliates for the purposes of payment of the First Tranche Payment or the Second Tranche Payment; or (ii) transfers the First Tranche Payment or the Second Tranche Payment on behalf of the Purchaser to the Seller at First Completion and Second Completion, respectively;
"Purchaser's Group" means the Purchaser, its Affiliates and each of the Underlying Investors;
"Purchaser Warranties" means the warranties given in Schedule 9 (Purchaser Warranties);
"Regulators" means any regulatory or governmental authorities or bodies, including, as they may be titled from time to time:
| (a) | the Government Commission; |
| (b) | President of the Russian Federation; |
| (c) | FAS; and |
| (d) | Central Bank of the Russian Federation; |
"Regulatory Approvals" means all of the necessary approvals to be granted or given by any of the Regulators or any other Governmental Authority as applicable from time to time in connection with the Transaction;
"Representatives" has the meaning given to that term in Clause 10.1 in respect of any Party or legal or natural person, as the context may allow;
| (a) | order, judgment, rule or regulation being entered, enforced, enacted or issued (whether temporary, preliminary or permanent) by any Governmental Authority; or |
| (b) | actual, pending, threatened suit, action, investigation or proceeding by any |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| Governmental Authority, |
"Russian Sub-Holding" has the meaning as the Parties have agreed in writing on the date of this Agreement;
"Sale Shares" means [***] ordinary shares in the Company and [***] Preference Share A;
"Sanctioned Person" means a person (i) that is designated or listed under any Sanctions List by any Sanctions Authority, (ii) in which any persons so designated or listed (individual or collectively) have an interest or control with the consequence that such person's property is blocked pursuant to any Sanctions, or (iii) acting on behalf of any of the foregoing;
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Tax Claim" means any claim for breach of any of the Tax Warranties or any claim under Clauses 14.1.5 or 14.1.6;
"Tax Liability" means:
| (a) | any liability of any member of the Complete Target Group to make an actual payment of Tax or a payment on account of Tax; and/or |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"TSA1" means the transitional services agreement between [***] as provider, [***] as licensor, and the Seller as receiver, in relation to the operation of the Seller's and the Seller Group Companies' ongoing businesses dated on the date of this Agreement;
"TSA2" means the transitional services agreement between the [***] as provider and [***] as receiver, in relation to the operation of the Target Group Companies' ongoing businesses dated on the date of this Agreement;
| (a) | LLC "FMP", a limited liability company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***], which is jointly, wholly and beneficially owned and controlled by the Management; |
| (b) | Closed-end Mutual Investment Combined Fund "Argonaut", a closed-end mutual investment fund organised under the laws of Russia, whose sole investor is a company wholly owned by PJSC "LUKOIL", company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***]; under the trust management of LLC Asset Management Company "Lerta Capital" Limited, a limited liability company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***]; |
| (c) | JSC "IT. Elaboration", a joint stock company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***], which is solely, wholly, and beneficially owned and controlled by Xxxxx Igorevich Xxxxx; |
| (d) | JSC "Infinity Management", a joint stock company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***], which is solely, wholly, and beneficially owned and controlled by Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx; and |
| (e) | LLC "Meridian-Servis", a limited liability company organised under the laws of Russia and registered as a legal entity under the main state registration number (OGRN) [***], which is solely, wholly, and beneficially owned and controlled by Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx; |
"Upstream Payment" means a payment of an amount equal to RUB [***] ([***] Rubles and [***] kopecks), to be paid to the Seller by [***] under, and pursuant to the terms of, the Pre-Completion Sale; and
"Upstream Reserve" means a payment of an amount equal to RUB [***] ([***] Rubles and
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
[***] kopecks) to be paid to the Seller by [***] under, and pursuant to the terms of, the Pre-Completion Sale.
Interpretation
| 1.2 | In this Agreement: |
| 1.2.1 | any reference to this Agreement includes the Schedules to it, each of which forms part of this Agreement for all purposes; |
| 1.2.2 | references to this Agreement shall be construed as references also to any separate or independent stipulation or agreement contained in it; |
| 1.2.3 | the contents page and headings in this Agreement are for convenience only and shall not affect its interpretation; |
| 1.2.4 | any references to a Party shall include that Party's successors and permitted assigns; |
| 1.2.7 | words in the singular shall include the plural and vice versa, and references to one gender include other genders; |
| 1.2.10 | if a period is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day, unless otherwise specified; |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| to include any equivalent or analogous laws or rules in any other jurisdiction; |
| 1.2.12 | expressions "subsidiary" and "subsidiary undertaking" defined in the Companies Act 2006 shall bear the same meaning as in that Act; |
| 1.2.13 | references to writing shall include any modes of reproducing words in any legible form (but shall not include email unless expressly stated otherwise); |
| 1.2.16 | a reference to a "share" includes a "participatory interest", "share capital" includes "charter capital" and a "shareholder" includes a "participant", and vice versa; |
| 1.2.17 | references to fractional holdings of shares shall be rounded up to the nearest whole share; and |
| 1.2.18 | except where the context otherwise requires, a reference to time or the time of any day is to Amsterdam (the Netherlands) time on the relevant date and events stated or deemed to occur upon, or actions required to be performed by, any given date shall be deemed to occur at, or must be performed before, 5:00 p.m. on the relevant date. |
"Conversion Rate" means [***] currency fixing set by [***] for CNH / RUB on the Relevant Date or, if no such rate is set on that date, on the preceding date on which such rate is set;
"Relevant Date" means:
| (a) | for the purposes of determining whether a monetary threshold or limit referred to in paragraph 3 of Schedule 10 (Limitations on liability) has been reached or exceeded, the date of receipt of written notification of the relevant claim in accordance with paragraph 2 of Schedule 10 (Limitations on liability); and |
| (b) | for any other purpose under this Agreement, the date falling [***] days before the |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| date on which a payment or an assessment is to be made, provided that exact date shall be chosen by the respective payor. |
| 1.4 | The ejusdem generis principle of construction shall not apply to this Agreement. Accordingly, general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words. The terms "other", "or otherwise", "whatsoever", "including", "include", "for example" and "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words accompanying those terms. |
| 2. | SALE AND PURCHASE |
Sale and purchase
| 2.1 | The Seller is the legal and beneficial owner of and shall sell and the Purchaser shall purchase the Sale Shares, as follows: |
| 2.1.1 | at First Completion, the Seller shall transfer to the Purchaser the First Tranche Sale Shares free from any Encumbrance and together with all rights attached to them at the First Completion Commencement Date or subsequently becoming attached to them (including the right to receive all dividends and distributions declared, paid, or made by the Company by reference to a record date falling on or after the First Completion Commencement Date); and |
| 2.1.2 | at Second Completion the Seller shall transfer to the Purchaser the Second Tranche Total Ordinary Company Shares free from any Encumbrance and together with all rights attached to them at the Second Completion Commencement Date or subsequently becoming attached to them (including the right to receive all dividends and distributions declared, paid, or made by the Company by reference to a record date falling on or after the Second Completion Commencement Date), |
in each case subject to and in accordance with the provisions of this Agreement, the First Completion Settlement Agreement and the Second Completion Settlement Agreement (as applicable).
Covenants for title
| 2.2 | The Seller covenants that it: |
| 2.2.1 | has the right to sell the Sale Shares; |
| 2.2.2 | will at its own cost do all that it can to give the Purchaser title to the Sale Shares free from any Encumbrance and with all rights attached or accruing to the Sale Shares on and after the relevant Completion Date; and |
| 2.2.3 | is selling the Sale Shares free from any Encumbrance. |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Waiver of pre-emption and other rights
| 2.3 | The Seller waives: |
| 2.3.1 | all pre-emption rights in respect of the Sale Shares; and |
| 2.3.2 | any other rights which restrict the transfer of the Sale Shares, |
conferred on the Seller whether by the constitutional documents of the Company, by agreement or otherwise and agrees to procure that all such rights conferred on any other person shall be irrevocably waived so as to permit the sale and purchase of the Sale Shares pursuant to this Agreement.
Evidence of authority
| 2.4 | On the date of this Agreement, each Party shall perform the obligations that Schedule 3 (Signing Obligations) states are to be performed by it. |
Disclosure Letter
| 3. | CONSIDERATION |
Consideration
| 3.1 | Subject to and in accordance with the provisions of this Agreement, the consideration for the sale of the Sale Shares by the Seller to the Purchaser shall be: |
Preference Share A Purchase Price + Base First Tranche Payment – AFCALA,
where:
AFCALA means the Aggregate FCALA agreed by the Parties prior to First Completion;
Base First Tranche Payment means First Tranche Sale Ordinary Shares multiplied by Price per Ordinary Share and is equal to RUB 237,500,130,916.40 (two hundred thirty seven billion five hundred million one hundred thirty thousand nine hundred sixteen Rubles and forty kopecks) (such amount being, the "Base First Tranche Payment"); and
Preference Share A Purchase Price means an amount equal to the Preference Share A Purchase Price (as defined in Clause 1.1);
| 3.1.2 | transfer of the First Tranche Exchange NV Shares to the Seller at First Completion |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| as set out in paragraph 1.6.2 of Schedule 5 (First Completion Obligations); |
Base Second Tranche Payment – ASCALA,
where:
ASCALA means the Aggregate SCALA agreed by the Parties prior to Second Completion (if there is no Second Completion Agreed Leakage Amount, ASCALA equals 0); and
Base Second Tranche Payment means the amount calculated as follows (such amount being, the "Base Second Tranche Payment"):
STPP - STSP,
where:
STPP means the Second Tranche Purchase Price; and
STSP means the Second Tranche NV Shares Payment; and
| 3.1.4 | transfer of the Second Tranche Exchange NV Shares to the Seller at Second Completion as set out in Schedule 6 (Second Completion Obligations) and the Second Completion Settlement Agreement. |
| 3.3 | For the avoidance of doubt, the First Tranche Pre-Conversion Payment plus the Second Tranche Pre-Conversion Payment plus the First Tranche NV Shares Payment plus the Second Tranche NV Shares Payment plus AFCALA plus ASCALA plus the Upstream Payment plus the Upstream Reserve in aggregate equal the Total Consideration. |
| 4. | CONDITIONS |
Conditions to First Completion
| 4.1 | First Completion is conditional on the following Conditions being satisfied on or before 5.30 p.m. (Amsterdam time) on the Longstop Date, and continuing to be satisfied at First Completion: |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| Condition | Party Responsible (Purchaser/Seller) | Party entitled to waive Condition (Purchaser/Seller) |
|---|---|---|---|
8. | There being no Restraint. | N/A | Cannot be waived |
9. | The Complete Target Group having made all filings and obtained all approvals from the Regulators reasonably necessary for the completion of the Pre-Completion Reorganisation and the transfer of the Preference Share B to the Management Foundation. | Seller | Purchaser |
10. | Completion (as defined in Clause 4.2) of the Pre-Completion Reorganisation, in compliance with the Pre-Completion Reorganisation Steps Plan. | Seller | Purchaser and Seller |
Memorandum and announcement relating thereto having been published on the dedicated website. | Purchaser | Seller | |
12. | The Pre-Completion Sale Shares having been transferred by the Seller to Yandex.Technologies LLC in full. | Seller | Purchaser |
13. | [***] having paid the Upstream Payment and the Upstream Reserve to the Seller in full. | Seller | Seller |
14. | Amended charter of the Company in a form agreed among the Parties having been adopted and registered with the unified state register of legal entities. | N/A | Purchaser |
15. | Each of the First Completion Settlement Agreement and Second Completion Settlement Agreement having been entered into. | Purchaser and Seller | Purchaser and Seller |
Pre-Completion Reorganisation
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Waiver
Satisfaction of Conditions
Notification of Satisfaction of Conditions
| 4.7 | Following the satisfaction, or (if capable of waiver) waiver, of all the Conditions in accordance with the terms of this Agreement, the Parties shall proceed to First Completion in the event that: |
Satisfaction Process
| 4.8 | The Seller shall promptly: |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 4.8.1 | co-operate with the Purchaser in connection with the Purchaser obtaining the Regulatory Approvals set out in Conditions 1 to 4 (inclusive) of Clause 4.1; and |
| 4.12.1 | in the event Conditions 2 and 3 set out in Clause 4.1 are not satisfied by the Purchaser within [***] days of the notice of such Extraordinary Shareholder Meeting, the Seller may adjourn or cancel such Extraordinary Shareholder Meeting; and |
| 4.12.2 | in the event of any changes to the subject matter or terms of the Transaction as a result of the satisfaction of Conditions 2 and 3 of Clause 4.1, the Seller may cancel the relevant Extraordinary Shareholder Meeting. |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| references prior to circulating the Shareholder Circular to the Seller's Shareholders. |
| 4.15 | In relation to the satisfaction of Condition 11 of Clause 4.1, the Purchaser hereby undertakes to publish the Memorandum and the announcement relating thereto on the dedicated website not later than [***] Business Days prior to First Completion and in any event no earlier than the satisfaction of Condition 5 of Clause 4.1. |
| 4.17 | Nothing in Clause 4.8, 4.9, 4.11 or Clause 4.13 shall oblige any Party to provide the other Party with commercially sensitive information relating to that Party, its Affiliates or to its or their business. |
No Interference
Failure to Satisfy Conditions
| 4.20 | If one or more of the Conditions: |
| 4.20.1 | remains unsatisfied at 5.30 p.m. (Amsterdam time) on the Longstop Date and (if capable of waiver) has not been waived on or before that time; or |
| 4.20.2 | becomes impossible to satisfy on or before the Longstop Date and (if capable of waiver), has not been waived within [***] Business Days of such Condition becoming impossible to satisfy; or |
| 4.20.3 | is unsatisfied immediately before First Completion and (if capable of waiver) has not been waived, |
the Party entitled to waive that Condition (or if the Condition cannot be waived, either the Seller or the Purchaser) may give notice to the Seller or the Purchaser (as applicable) terminating this Agreement in which case the provisions of Clauses 16.1 and 16.4 shall apply.
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 5. | CONDUCT OF BUSINESS BEFORE FIRST COMPLETION |
Normal course
| 5.1 | Pending First Completion the Seller shall procure that the Company and each Target Group Company: |
| 5.1.1 | continues to carry on its business in the normal course and in substantially the same manner as its business has been carried within [***] months before the date of this Agreement; and |
| 5.1.2 | complies with the requirements of Schedule 4 (Conduct of Business Before First Completion). |
Notification by Xxxxxx
| 5.2 | The Seller undertakes to notify the Purchaser in writing fully and promptly upon becoming aware of anything which constitutes or may constitute a breach of its obligations under Clause 5.1. |
Purchaser's access
| 5.3 | The Seller will use its best endeavours to procure that from the date of this Agreement until First Completion the Purchaser and its advisers and representatives shall have reasonable access to: |
| 5.3.1 | the premises and assets of each member of the Complete Target Group; and |
| 5.3.2 | all books, records, accounts, and documents controlled or used by each member of the Complete Target Group (including computer programs) and shall be able to take copies of the foregoing, |
in each case, solely to the extent reasonably necessary for the purposes of providing the Purchaser with information or materials to assess:
| (A) | the existence of any Leakage or any circumstances that could reasonably be expected to result in any Leakage from the Locked Box Date to (and including) the First Completion End Date; |
| (B) | compliance with the provisions of Schedule 4 (Conduct of Business Before First Completion); or |
| (C) | the status of the implementation of the Pre-Completion Reorganisation. |
| 5.5 | The Purchaser is not entitled to receive any books, records, accounts, documents or other information or explanations relating to the period prior to the Locked Box Date, except when such books, records, accounts, documents or other information or explanations are necessary to assess, and/or relate to, any matter set out in Clause 5.3.2(A) – 5.3.2(C). |
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No internal regulations and policies
Breach
| 5.7.1 | in excess of RUB [***] ([***]), the Purchaser may terminate this Agreement by notice in writing to the Seller, in which case the provisions of Clauses 16.1 and 16.4 shall apply; and |
| 5.7.2 | less than RUB [***] ([***] Rubles), the Purchaser shall proceed to First Completion in accordance with the provisions of this Agreement but without prejudice to its right to claim for breach of this Agreement (including in particular Clause 5.1). |
Circumvention
| 5.9 | The Seller further covenants and agrees that from the date of this Agreement it will not, and will procure that no Connected Person of the Seller will, take any action the sole purpose of which is to circumvent the terms and obligations set out in the paragraphs referred to in Clause 5.8. |
| 6. | FIRST COMPLETION |
First Completion Commencement Date
| 6.1 | Unless this Agreement is previously terminated in accordance with its terms, First Completion shall commence at the office of the Purchaser Depositary at 9.00 am (Moscow |
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| time) as soon as practicable following the satisfaction, or (if capable of waiver) waiver, of all the Conditions with the exact date of First Completion commencement to be agreed by the Parties in writing, or at such other place or time as the Seller and the Purchaser shall agree (the "First Completion Commencement Date"). |
First Tranche Exchange NV Shares Notification
Obligations at First Completion
| 6.3 | At First Completion, each Party shall perform the obligations that Schedule 5 (First Completion Obligations) states are to be performed by it and in the order set out therein. |
| 6.5 | At First Completion, the Seller shall sell and transfer (or procure the sale and transfer of) the Preference Share B to the Management Foundation. |
Default at First Completion
| 6.6 | Neither Party shall be obliged to complete the sale and purchase of the First Tranche Sale Shares unless the other Party complies in full with its obligations pursuant to Clause 6.3. |
| 6.7.2 | proceed to First Completion as far as practicable and in any case without prejudice to its rights under this Agreement; or |
| 6.7.3 | if First Completion has already been deferred on two separate occasions pursuant to Clause 6.7.1, terminate this Agreement in which case the provisions of Clauses 16.1 and 16.4 shall apply. |
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| 7. | Second Completion |
Second Completion Commencement Date
Second Tranche Exchange NV Shares Notification
| 7.3 | For the avoidance of doubt, in the event the Purchaser: (i) has not acquired the Second Tranche Exchange NV Shares; or (ii) has acquired less Second Tranche Exchange NV Shares than the amount notified to the Seller in accordance with Clause 7.2, in each case prior to Second Completion for any reason whatsoever, the Purchaser shall proceed to Second Completion and the Second Tranche Pre-Conversion Payment shall be increased accordingly as set out in paragraph 1.3 of Schedule 6 (Second Completion Obligations). |
Obligations at Second Completion
| 7.4 | At Second Completion, each Party shall perform the obligations that Schedule 6 (Second Completion Obligations) states are to be performed by it and in the order set out therein. |
| 7.5 | All of the documents and monies delivered at Second Completion pursuant to Schedule 6 (Second Completion Obligations) shall be held by the recipient to the order of the person delivering them until such time as Second Completion takes place. Following the delivery of all documents and monies required to be delivered or paid at Second Completion or the waiver of the requirement to deliver any such document or monies by the person entitled to receive the relevant document or monies for the purposes of enabling Second Completion to proceed, the documents and monies delivered pursuant to Schedule 6 (Second Completion Obligations) shall cease to be held to the order of the person delivering them and Second Completion shall be deemed to have taken place. |
Default at Second Completion
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| 7.7.1 | defer Second Completion to a date selected by it, being not more than [***] days after that date (in which case this Clause shall apply to Second Completion as so deferred); or |
| 7.7.2 | proceed to Second Completion as far as practicable and in any case without prejudice to its rights under this Agreement. |
| 8. | Warranties |
Seller Warranties
| 8.2 | The Seller gives the Seller Warranties at the date of this Agreement and shall be deemed to repeat: |
| 8.2.1 | the Fundamental Warranties (provided that paragraph 8 of Schedule 7 (Seller Warranties) shall be given in respect of the First Tranche Sale Shares only, as if references in such paragraph 8 to the Sale Shares were references to the First Tranche Sale Shares) immediately before First Completion by reference to the circumstances subsisting at that time; and |
| 8.2.2 | the Fundamental Warranties (provided that paragraph 8 of Schedule 7 (Seller Warranties) shall be given in respect of the Second Tranche Total Ordinary Company Shares only, as if references in such paragraph 8 to the Sale Shares were references to the Second Tranche Total Ordinary Company Shares, and excluding paragraphs 8.2 and 8.4) immediately before Second Completion by reference to the circumstances subsisting at that time. |
Warranties to be independent
| 8.3 | Each of the Seller Warranties shall be separate and independent and shall not be limited by reference to any other Seller Warranty or any other provision of this Agreement. |
Notification by Xxxxxx
| 8.5 | Where any of the Seller Warranties is qualified by the expression "so far as the Seller is aware" or any similar expression, that Seller Warranty shall be deemed to refer to the actual knowledge of those individuals as agreed by the Seller and the Purchaser in writing on the date hereof, having made due and careful enquiries of [***]. |
Purchaser Warranties
| 8.6 | The Purchaser warrants to the Seller that each of the Purchaser Warranties is true, accurate and not misleading. |
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| 8.7 | The Purchaser gives the Purchaser Warranties (excluding paragraph 9 of Schedule 9 (Purchaser Warranties)) at the date of this Agreement and shall give: |
| 8.7.1 | the Purchaser Warranties contained in paragraphs 9.1 of Schedule 9 (Purchaser Warranties) immediately before First Completion by reference to the circumstances subsisting at that time; and |
| 8.7.2 | the Purchaser Warranties contained in paragraphs 9.2 and 9.3 of Schedule 9 (Purchaser Warranties) immediately before Second Completion by reference to the circumstances subsisting at that time. |
Purchaser's knowledge
| 8.8 | Where any of the Purchaser Warranties is qualified by the expression "so far as the Purchaser is aware" or any similar expression, that Purchaser Warranty shall be deemed to refer to the actual knowledge of the general director, the director of the department of legal support for trust management and the advisor to the general director for project management of JSC Solid Management, each having made due and careful enquiries of those individuals as agreed by the Seller and the Purchaser in writing on the date hereof. |
Notification by Purchaser
| 8.9 | The Purchaser undertakes to notify the Seller in writing fully and promptly of anything of which the Purchaser is or becomes aware which renders or may render any of the Purchaser Warranties untrue, inaccurate, or misleading. |
| 9. | Seller limitations on liability |
The liability of the Seller in respect of Claims shall be limited in the circumstances and to the extent set out in Schedule 10 (Limitations on Liability).
| 10. | Purchaser Undertakings |
Preservation of information
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| compliance by its Representatives with such non-disclosure obligations and shall be responsible for such compliance. |
Return of information
| 10.2 | If First Completion does not take place, the Purchaser undertakes to the Seller that: |
| 10.2.1 | it shall forthwith hand over, or procure the handing over to the Seller of, all accounts, records, documents and papers of or relating to the Seller, or any member of the Complete Target Group which have been made available to it and all copies or other records derived from such materials; |
| 10.2.2 | to the extent legally and technically practicable, it shall remove any information derived from such materials or otherwise concerning the subject matter of this Agreement from its computers, word processors or other devices containing information; and |
| 10.2.3 | shall ensure that its Representatives do the same. |
Memorandum
| 10.3 | The Purchaser hereby undertakes that it shall instruct any relevant brokers engaged for the purposes of the transactions stipulated in the Memorandum that they are not to transact with any Sanctioned Persons in connection with any block trades or stake building off-market in bilateral transactions (which restriction, for the avoidance of doubt, shall not apply to (i) any attorneys and representatives of the holders of the Exchange NV Shares; and (ii) any Exchange NV Shares acquired by the Purchaser via stock exchange infrastructure). |
| 11. | PURCHASER FUNDING OBLIGATIONS |
Future funding
Interim Period prior to First Completion
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| 11.4 | The Purchaser hereby undertakes to the Seller that after having received a Compromise Notice from the Seller, it shall procure that no Funding Notice is issued to a Compromised Investor. Notwithstanding the provisions of Clause 11.5, the Purchaser shall further procure that any Funding Notices issued to other Underlying Investors (who for the avoidance of doubt, are not Compromised Investors) may thereafter be revised in accordance with the Fund Documents, in order to ensure that the Purchaser is fully funded and capable of satisfying its obligation to pay the First Tranche Payment. |
Emergency Funding
| 11.5.1 | seek such additional funding from the remaining Underlying Investors (who for the avoidance of doubt, are not Compromised Investors) in the form of either a subscription for new units (participatory interests) in the Purchaser or through the provision of loans advanced to the Purchaser; |
| 11.5.2 | seek such additional funding from new investor(s) of the Purchaser, provided such new investor(s) would not be deemed to be a Compromised Investor (as defined in Clause 11.7); or |
| 11.5.3 | seek a loan from third party lenders. |
Compromised Investors
| 11.7.1 | in the case of an entity only: |
| (A) | becomes bankrupt or insolvent or unable to pay its debts when due; |
| (B) | an order has been made against it, corporate action or other step has been taken or legal proceedings have been started, for its winding-up, dissolution or re-organisation or for the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager (or equivalent in any jurisdiction) of it or over any of its assets; or |
| (C) | any other measures have been taken against or in respect of it under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, |
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| 11.7.2 | in the case of an individual only: |
| (A) | becomes bankrupt under any Applicable Laws; |
| (B) | bankruptcy or similar proceedings have been commenced against him or any event has occurred, which under Applicable Laws, would justify any such proceedings; or |
| (C) | has died, become permanently incapacitated or is otherwise no longer of sound mind, or |
| 11.8 | Without limitation to any other rights of the Seller under this Agreement (including, this Clause 11), and from the date of this Agreement, the Seller shall not be entitled to exercise its rights under this Clause 11 in respect of the Purchaser, JSC Solid Management in its personal capacity, the Fund, an Underlying Investor or a Purchaser Financing Provider solely based on the criterion set out in Clause 11.7.4. |
Compliance Policies
| 11.9 | The Seller hereby undertakes that from the date of this Agreement until First Completion it shall not amend or modify the provisions of its internal "Know-Your-Client" or other regulatory compliance policies that are in place on the date of this Agreement, save as may be required or otherwise deemed necessary in order to comply with Applicable Laws and any Sanctions administered or enforced by any Sanctions Authority. |
| 12. | RESTRICTIONS ON CHANGES TO BENEFICIAL OWNERShIP |
Standstill
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| liquidation or other extraordinary transaction with respect to the Company, except for (i) any internal restructuring of the Complete Target Group; (ii) issuance of shares in the Company, including in a public offering or in a private subscription; or (iii) as required to facilitate compliance with Applicable Laws; |
| 12.1.4 | enter into detailed discussions, negotiations, arrangements or agreements with any person relating to any actions prohibited in Clauses 12.1.1 to 12.1.3 (inclusive). |
Restrictions on Dispositions
| 12.3 | For the purposes of this Clause 12, "Dispose" means, in respect of an Ordinary Sale Share: |
| 12.3.2 | effect a reduction of an interest (including selling short) or enter into a derivative transaction with respect to, any legal or beneficial interest in such Ordinary Sale Share or any interest in such Ordinary Sale Share; |
| 12.3.4 | enter into any other transaction with the same economic effect as any transaction referred to in Clauses 12.3.1 to 12.3.3 (inclusive); |
| 12.3.5 | agree or contract to or publicly announce any intention to enter into transaction referred to in paragraphs Clauses 12.3.1 to 12.3.4; or |
| 12.3.6 | mandate any third party to do any of the foregoing on their behalf, |
in each case directly or indirectly and whether conditionally or unconditionally, and "Disposal", "Disposing" and "Disposition" shall be construed accordingly.
| 12.4 | Nothing in this Clause 12 shall prohibit or restrict any of the following transactions during the Lock-Up Term: |
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| 12.4.1 | the transfer of any of the Ordinary Sale Shares in exchange for the NV Shares to be transferred to the Seller at First Completion or Second Completion in accordance with this Agreement, the Memorandum and any other relevant documents; |
| 12.4.2 | entering into any transaction, pursuant to which any Underlying Investor shall transfer any participation units in the Fund to its Permitted Assignees, any other Underlying Investor(s) and/or their Permitted Assignees, provided that in all cases: (i) any such transferee is not a Compromised Investor; and (ii) the completion and the actual transfer of the participation units in the Fund under such transaction can only take place after First Completion; |
| 12.4.3 | entering into any transaction, pursuant to which the Fund shall transfer the Ordinary Sale Shares to the relevant Underlying Investor(s) and/or Permitted Assignees, provided that completion and the actual transfer of the Ordinary Sale Shares under such transaction can only take place after expiration of the Lock-Up Term; |
| 13. | LEAKAGE |
| 13.1 | The Seller: |
| 13.1.1 | warrants to the Purchaser that from (but excluding) the Locked Box Date to (and including) the date of this Agreement, there has been; and |
| 13.1.2 | undertakes to the Purchaser to procure that from the date of this Agreement to (and including) the First Completion End Date, there will be, |
no Leakage, provided that the Seller shall have no liability to the Purchaser under this Clause 13 if First Completion does not occur.
Consequences for Leakage
Prior to First Completion
| 13.3 | If on or prior to First Completion: |
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| 13.3.1 | any Leakage is notified by the Seller to the Purchaser; or |
| 13.3.2 | the Purchaser becomes aware of any Leakage and notifies the Seller of such Leakage, |
the Parties shall agree in good faith an amount of Leakage, which shall be deducted from the Base First Tranche Payment on a corresponding RUB for RUB basis pursuant to Clause 3.1.1 (each a "First Completion Agreed Leakage Amount", and together with all other First Completion Agreed Leakage Amounts (if any), the "Aggregate FCALA"). Each First Completion Agreed Leakage Amount will be net of any Tax deduction available to any member of the Complete Target Group in respect of such Leakage and any amount in respect of VAT which is recoverable as input tax by a member of the Complete Target Group in respect of such Leakage.
| 13.5 | If on or prior to First Completion: |
| 13.5.1 | any Leakage is notified by the Seller to the Purchaser; or |
| 13.5.2 | the Purchaser becomes aware of any Leakage and notifies the Seller of such Leakage, |
and the Parties fail to agree on an amount of Leakage, which shall be deducted from the Base First Tranche Payment, the Purchaser may by giving written notice to the Seller:
| (A) | proceed to First Completion as far as practicable and in any case without prejudice to its rights under this Agreement (including in particular, Clause 13.9); or |
Between First Completion and Second Completion
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| pursuant to Clause 3.1.3 (each a "Second Completion Agreed Leakage Amount", and together with all other Second Completion Agreed Leakage Amounts (if any), the "Aggregate SCALA"). Each Second Completion Agreed Leakage Amount will be net of any Tax deduction available to any member of the Complete Target Group in respect of such Leakage and any amount in respect of VAT which is recoverable as input tax by a member of the Complete Target Group in respect of such Leakage. |
| 13.7 | Any Second Completion Agreed Leakage Amount will be paid by way of reduction of the Base Second Tranche Payment payable by the Purchaser to the Seller pursuant to Clause 3.1.3 (and subject to Clause 3.1.3, the payment of the amount of the Base Second Tranche Payment so reduced shall be an absolute discharge of the Purchaser's obligations hereunder in respect of the Second Tranche Pre-Conversion Payment to be paid to the Seller at Second Completion pursuant to this Agreement). |
Indemnity for Leakage
| 13.10 | The Seller shall not be liable to make a payment under Clause 13.9 unless: |
| 13.10.2 | following the delivery of a notice to the Seller pursuant to 13.10.1, the Seller fails to fully remedy the matter underlying such breach of Clause 13.1 to the satisfaction of the Purchaser (acting reasonably) within [***] days of receiving such notice (such remediation to be agreed in advance with the Purchaser (acting reasonably) and in any case to be at no cost for the Purchaser or the Complete Target Group). |
| 13.11 | The Seller's aggregate liability for all Leakage and Locked Box Warranty Claims shall not |
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| exceed [***] per cent ([***]%) of the amount of the Total Consideration that is received by the Seller in cash. |
| 14. | SELLER COVENANTS AND UNDERTAKINGS |
| 14.1.2 | the Purchaser not having or ceasing to have full legal and beneficial title, free from any Encumbrances, in the Second Tranche Total Ordinary Company Shares upon Second Completion, as a result of an event, occurrence or circumstance which occurred prior to Second Completion; |
| 14.1.6 | any other indemnity as agreed between the Parties in writing on the date of this Agreement. |
Tax Indemnity Payment
| 14.2 | The Seller shall pay to the Purchaser any amount properly claimed by the Purchaser under Clauses 14.1.5 or 14.1.6 on (or following) the date on which the Tax which is the subject matter of the claim is actually paid to any relevant Tax Authority by the Purchaser or a member of the Complete Target Group. |
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| 14.4 | The Seller shall use its best endeavours to procure that the Pre-Completion Reorganisation is implemented in compliance with the Pre-Completion Reorganisation Steps Plan in all material respects as soon as reasonably practicable following the date of this Agreement and in any event prior to First Completion. |
| 15. | TRANSITIONAL ARRANGEMENTS |
Transitional Services Agreements and Termination of Existing Arrangements
| 15.1 | The Parties acknowledge that the Transitional Services Agreements shall take effect at First Completion. |
| 15.3 | Solely for the purposes of Clause 15.2: |
| 15.3.1 | references to the Seller's Affiliates shall include, for the avoidance of doubt, a reference to each Connected Person of the Seller; |
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| 15.3.3 | "Seller Group Obligations" means any guarantee, surety, indemnity, mortgage, charge or other security arrangement of any kind, entered into by any member of the Complete Target Group in respect of any obligations of the Seller or its Affiliates. |
Wind Down Use of Names and Logos
| 15.4 | The Seller covenants with the Purchaser that: |
| 15.4.1 | from First Completion and until 31 July 2024, it shall not, and shall procure that no Seller Group Company, or any Affiliate of the Seller or any Seller Group Company shall, offer consumer-facing services, or market and service products under any Relevant Branding, provided that the Seller, a Seller Group Company, and any Affiliate of the Seller or any Seller Group Company shall be entitled to make use of any Relevant Branding for purposes of official or legal communications with any other person (including, without limitation, correspondence on company letterhead with banks); |
| 15.4.2 | after 31 July 2024, it shall not, and shall procure that no Seller Group Company, or any Affiliate of the Seller or any Seller Group Company shall, make use of any Relevant Branding or permit, allow, authorize, encourage or enable any other person to make any use of any Relevant Branding; and |
| 15.4.3 | as soon as practicable after First Completion, but in any event by no later than 31 July 2024, it shall, and shall procure that the relevant Seller Group Companies shall, rename the following companies to names that do not include any of the Relevant Names: |
| (A) | the Seller; |
| (B) | [***]; |
| (C) | [***]; |
| (D) | [***]; |
| (E) | [***]; and |
| (F) | [***]. |
| 15.5 | Notwithstanding anything to the contrary, the Seller shall rename its NASDAQ "ticker" symbol within one (1) year of the date that the trading halt relating to the NV Shares on NASDAQ is lifted. For so long as the NASDAQ trading halt relating to the NV Shares remains in effect, the Parties agree that the Seller does not breach the restrictions in Clause |
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| 15.4 as a result of the NASDAQ "ticker" symbol relating to the Seller at the date of this Agreement. |
| 15.6 | For the purposes of Clause 15.4: |
| 15.6.1 | "NASDAQ" means The Nasdaq Global Select Market (or its successor); |
| 15.6.2 | "Relevant Branding" means any Relevant Name or any brand, trade or service mark, trade name or branding owned or used by any member of the Complete Target Group; and |
| 15.6.3 | "Relevant Name" means any of: (a) "Yandex"; (b) any abbreviation of the foregoing, whether on its own or as part of another name; (c) [***], [***] and any other domain name held or used by any member of the Complete Target Group at any time; and (d) any word or words similar to or which are likely to be confused with any of above. |
No Grant of Licence
Registry Agreement Transfer
| 15.8 | The Seller shall use its reasonable endeavours to procure that, by [***], all rights and obligations of [***] or any other Seller Group Company under registry agreement dated 10 April 2014 entered into with the [***] in relation to the [***] top level domain are assigned and transferred to the Complete Target Group in accordance with the provisions of such agreement and requirements of the [***]. |
| 16. | TERMINATION |
Termination events
| 16.2 | If: |
| 16.2.1 | between the date of this Agreement and First Completion the Purchaser becomes aware that: |
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| of this Agreement; or |
| (B) | any Seller Warranty (other than the Seller Warranties set out in Clause 16.2.1(A)) was untrue inaccurate or misleading in any material respect when given on the date of this Agreement, which results or may reasonably be expected to result in a Material Adverse Effect; |
| 16.2.2 | between the date of this Agreement and First Completion the Purchaser becomes aware of any matter, fact or circumstance that constitutes, or would constitute, a breach of: |
| (B) | any Seller Warranty (other than the Seller Warranties set out in Clause 16.2.2(A)), as if it was repeated at any time before First Completion, notwithstanding the provisions of Clause 8.2, by reference to the circumstances then subsisting, which results or may reasonably be expected to result in a Material Adverse Effect, |
the Purchaser may at its option:
| (1) | terminate this Agreement by notice in writing to the Seller, in which case the provisions of Clauses 16.1 and 16.4 shall apply; or |
| (2) | proceed to First Completion but without prejudice to its right to claim for breach of the Seller Warranties. |
| 16.3 | If: |
| 16.3.1 | between the date of this Agreement and First Completion the Seller becomes aware that any Purchaser Warranty set out in paragraphs 1 to 5 (inclusive), 7, 8, and 10 to 16 (inclusive) of Schedule 9 (Purchaser Warranties) was untrue, inaccurate or misleading when given on the date of this Agreement; or |
| 16.3.2 | between the date of this Agreement and First Completion the Seller becomes aware of any matter, fact or circumstance that constitutes, or would constitute, a breach of any Purchaser Warranty set out in paragraphs 1 to 5 (inclusive), 7, 8, or 10 to 16 (inclusive) of Schedule 9 (Purchaser Warranties), as if it was repeated at any time before First Completion, notwithstanding the provisions of Clause 8.7, by reference to the circumstances then subsisting, |
the Seller may at its option:
| (A) | terminate this Agreement by notice in writing to the Purchaser, in which case the provisions of Clauses 16.1 and 16.4 shall apply; or |
| (B) | proceed to First Completion but without prejudice to its right to claim for breach of the Purchaser Warranties. |
Effect of termination
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| 16.4 | The termination of this Agreement shall not affect: |
| 16.4.1 | any rights or obligations which have accrued or become due prior to the date of termination; and |
No other right to terminate or rescind
| 17. | MISCELLANEOUS |
Announcements
| 17.1 | Subject to Clause 17.2, neither Party shall (and both Parties shall procure that none of its Affiliates, or in the case of the Purchaser, any of its Underlying Investors shall): |
| 17.1.1 | make or send; or |
| 17.1.2 | permit another person to make or send on its behalf, |
a public announcement or circular regarding the existence or the subject matter of this Agreement unless it has first obtained the other Party's written consent (such consent not to be unreasonably withheld or delayed).
Permitted Announcements
| 17.2 | Clause 17.1 does not apply to: |
| 17.2.1 | the Shareholder Circular; |
| 17.2.3 | any announcement or circular: |
| (A) | which is required by Applicable Law, a court of competent jurisdiction or |
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| a competent Governmental Authority or any other regulatory or legislative body, including without limitation the SEC; |
| (B) | which, in the case of the Seller only, is required by a rule of a stock exchange or listing authority on which its shares or other securities are listed or traded; or |
| (C) | which does not go beyond the language, content, intent or substance of any Agreed Announcements. |
Cooperation
| 17.3 | If a Party is required to make or send an announcement or circular in the circumstances contemplated by Clauses 17.2.3(A) or 17.2.3(B), it must, before making or sending such announcement or circular, consult with the other Party and take into account the other Party's views as to the timing, content and manner of making the announcement or circular to the extent it is permitted to do so by Applicable Law and to the extent it is reasonably practicable to do so. |
Disparaging Statements
Confidentiality
| 17.6 | For the purposes of Clauses 17.7 and 17.8, "Confidential Information" means the existence and contents of this Agreement and any other agreement or arrangement contemplated by this Agreement and: |
| 17.6.2 | any information which is expressly indicated to be confidential in relation to the Party disclosing it (or in relation to any of its group undertakings) from time to time, |
which any Party may from time to time receive or obtain (verbally or in writing or in disk or electronic form) from the other Party as a result of negotiating, entering into, or performing its obligations pursuant to this Agreement and provided that such information concerning the Complete Target Group in relation to the period before First Completion shall not be Confidential Information of the Seller following First Completion; such information concerning the Complete Target Group in relation to the period after First Completion shall be Confidential Information of the Purchaser.
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 17.8 | The consent referred to in Clause 17.7 shall not be required for disclosure by a Party of any Confidential Information: |
| 17.8.3 | to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by either Party; |
| 17.8.4 | which is disclosed to such Party by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied; |
| 17.8.5 | which that Party lawfully possessed prior to obtaining it from another; |
| 17.8.6 | to the other Party to this Agreement; or |
| 17.8.7 | pursuant to the terms of this Agreement. |
No partnership
Assignment
| 17.11 | Except as provided in Clause 17.12, no Party shall assign (whether absolutely or by way of |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| security and whether in whole or in part), transfer, mortgage, charge or otherwise dispose of or deal with in any manner whatsoever the benefit of this Agreement or sub-contract or delegate in any manner whatsoever its performance under this Agreement. |
| 17.13 | This Agreement will be binding on and continue for the benefit of the successors and permitted assignees of each Party. |
Third party rights
| 17.14 | With the exception of: |
| 17.14.1 | the rights of any member of the Complete Target Group to enforce the terms of this Agreement pursuant to Clause 14.5; |
| 17.14.2 | the rights of any Permitted Assignee to enforce the terms of this Agreement pursuant to Clause 17.12 (Assignment); |
| 17.14.3 | the rights of each beneficiary referred to in Clause 17.19 to enforce the terms contained in Clause 17.17 (Claims from Completion); |
| 17.14.4 | the rights of each beneficiary referred to in Clause 17.20 to enforce the terms contained in Clause 17.18 (Claims from Completion), |
(each such party being, for the purposes of this Clause 17.14, a "Third Party") and
| 17.14.5 | the rights of each Third Party to enforce the terms of Clause 19 (Governing law and dispute resolution), |
no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a Party to this Agreement. The rights of the relevant Third Parties under Clause 17.12 (Assignment) and Clause 17.18 (Claims from Completion) are subject to the terms of Clause 17.11 (Assignment) and Clause 19 (Governing law and dispute resolution). The Parties to this Agreement may by agreement rescind or vary any term of this Agreement without the consent of any of the Third Parties.
Entire agreement
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| between the Parties with respect thereto, whether in writing or otherwise, and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing. |
| 17.16 | Each Party agrees and undertakes on behalf of itself and its Affiliates that: |
| 17.16.3 | for the avoidance of doubt and without limitation, 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, the other Transaction Documents or any agreed form documents (as agreed on the date 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 statute). |
Claims from Completion
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Default Interest
No challenges
| 17.23 | Each Party undertakes to the other Party that it shall not (and it shall procure that none of its Connected Persons shall): |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 17.23.1 | seek to challenge the validity of any Transaction Document or any provision thereof; or |
| 17.23.2 | seek to invalidate, set-aside, avoid, or terminate any Transaction Document or any provision thereof other than in compliance with the provisions thereof; or |
| 17.23.3 | not instigate any third party to do any of the above. |
Unenforceable provisions
Effect of Completion
Waiver
Variation
Counterparts
Payments
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 17.29 | Save as otherwise provided by this Agreement and subject to Clause 3.2, when a Party pays an amount due under this Agreement, it shall pay it: |
| 17.29.1 | to such account of the other Party as it has specified therefor; and |
| 17.29.2 | in CNH. |
| 17.30 | Unless otherwise expressly provided in this Agreement or any other Transaction Document: |
| 17.30.1 | the Purchaser must pay all present and future Taxes imposed under applicable Russian law (other than any Taxes which would have not arisen, had the Seller Warranties set out in paragraphs 7.6, 7.7 and 7.8 of Schedule 8 (Business Warranties) been true, accurate and not misleading, which such Taxes in each case shall be payable by the Seller); and |
| 17.30.2 | the Seller must pay all present and future Taxes imposed in any applicable jurisdiction other than the Russian Federation, |
in each case, payable in connection with this Agreement and any other Transaction Document. For the avoidance of doubt, the Seller shall not (and shall procure that no Seller Group Company shall) make any claim by way of recourse against the Purchaser for any compensation of Dutch withholding tax arising as a result of the acquisition of the Exchange NV Shares under this Agreement.
| 17.33 | Any payment made by or due from a Party under, or pursuant to the terms of, this Agreement shall be free and clear of all Tax whatsoever save only for any deductions or withholdings required by law. |
Payments net of mandatory withholdings or deductions
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| withholdings. |
No set off, deduction or counterclaim
Costs
| 17.36 | The Parties shall pay their own costs in connection with the preparation and negotiation of this Agreement and any matter contemplated by it. |
Language
Independent advice
| 18. | Notices |
| 18.2 | A notice shall be effective upon receipt and shall be deemed to have been received: |
| 18.2.1 | at the time of delivery, if delivered by hand or courier; or |
| 18.2.2 | if sent by email, the earlier of (a) when the sender receives an automated message confirming delivery; or (b) four hours after the time sent (as recorded on the device |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, |
provided that, in each case, a notice received, or deemed to be received, on a day which is not a business day in the place of receipt, or after 5 pm on any business day in the place of receipt, shall be deemed to have been received on the next following business day in the place of receipt (and for the purposes of this Clause, a business day in the place of receipt shall mean a day (other than a Saturday or Sunday) on which banks are open for general business in that place).
| 18.3 | The relevant details of each Party at the date of this Agreement are: |
Seller | |
Address: | Xxxxxxxx Xxxxxxxxx 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx |
Email: | [***] |
Attention: | [***] |
Purchaser | |
Address: | Khoroshyovskoye sh. 32A, Moscow, 125284, the Russian Federation |
Email: | [***] |
Attention: | [***] |
| 19. | Governing law and dispute resolution |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| nominated by the two party-nominated arbitrators. |
| 19.5 | The arbitration proceedings shall be conducted in, and the award rendered in, the English language. |
| 19.6 | This agreement to arbitrate shall be binding upon the Parties, their successors and assigns. |
| 19.9 | The law of this arbitration agreement shall be the law of England and Wales. |
THIS AGREEMENT has been duly executed by the Parties (or their duly authorised representatives) on the date specified at the beginning of this Agreement.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Name | IJSC Yandex |
Main state registration number (OGRN) | 1233900014699 |
Company type | International Joint Stock Company (Международная компания акционерное общество) |
Country of incorporation | Russian Federation |
Registered office | Solnechniy xxxxxx 0, Xxxxxxx 0, Xxxxxx 000, Xxxxxxxxxxx, xxx Xxxxxxx Xxxxxxxxxx |
Issued share capital | RUB [***] divided into: - [***] ordinary shares having nominal value of [***] kopecks each; - [***] preferred share of type "A" having nominal value of [***] kopecks; and - [***] preferred share of type "B" having nominal value of [***] kopecks |
Shareholders | |
Directors | - General Director (sole executive): [***] - Members of the board of directors: [***], [***] and [***] |
Registrar | Joint Stock Company "Independent Registrar Company X.X.X.X.", main state registration number (OGRN) [***] |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
(this list includes non-profit organisations and foundations where an entity of the Complete Target Group is a founder,
but excluding those there it is a participant)
Xx. | Xxxxx Name | Entity Type | Registered Address | Registered Number | Share / Charter Capital | Shareholders/ | Destiny | Encumbrances Over Shares / Participation Interests |
|---|---|---|---|---|---|---|---|---|
1. | [***] | [***] | [***] | [***] | [***] | [***] | [***] | [***] |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Leakage" shall mean, in each case during the period from (but excluding) the Locked Box Date to (and including) the First Completion End Date:
| (b) | any redemption, repurchase, repayment or return of shares or other securities, or return of capital (whether by reduction of capital or otherwise and whether in cash or in kind) by any member of the Complete Target Group the Seller, the Seller's Connected Persons, or the Family Members of the Seller's Connected Persons; |
| (c) | any bonus or similar payments paid or agreed to be paid by any member of the Complete Target Group to any employee of the Seller or any of the Seller's Connected Persons; |
| (d) | any transfer or surrender (including, for the avoidance of doubt, any waiver, discount, deferral, release or discharge) of assets, contractual rights (including any claim (howsoever arising) or liability), Intellectual Property of any member of the Complete Target Group, or other benefits by any member of the Complete Target Group to the Seller or any of the Seller's Connected Persons; |
| (e) | any member of the Complete Target Group assuming, indemnifying, guaranteeing, securing, incurring or agreeing to assume, indemnify, guarantee, secure or incur by or on behalf of any member of the Complete Target Group any liability or obligation for the benefit of the Seller or any of the Seller's Connected Persons; |
| (f) | any payment made by any member of the Complete Target Group to the Seller or any of its Connected Persons; |
| (h) | any Tax Liability incurred by, or any Tax being paid or becoming payable by any member of the Complete Target Group as a consequence of any of the matters referred to in paragraphs (a) to (g) (both inclusive) above, |
but, in each case, not including any Permitted Leakage.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
"Permitted Leakage" shall mean:
| (a) | payment to the Seller of USD [***] ([***] Dollars) as funded to the Seller by [***] on [***]; |
| (b) | payment of the Upstream Payment; |
| (c) | any actions, steps or payments made (or to be made) by the Company or the Complete Target Group expressly provided by or required under the Pre-Completion Reorganisation Steps Plan; |
| (d) | any transactions, actions, steps or payments made or performed (or to be made or performed) solely amongst the Complete Target Group; |
| (f) | any payments of salary, benefits, compensation or other contractual entitlements of certain directors of the board of directors of the Seller as agreed between the Parties in writing on the date of this Agreement, in each case in connection with their position on the board of directors of the Seller; |
| (g) | any transfer or surrender of hardware, office equipment and other assets (including laptops and mobile telephones), provided that the net value (less depreciation) of such assets does not exceed RUB [***] ([***] Rubles) in aggregate; |
| (h) | any payments made (or to be made) by the Company or the Complete Target Group which have been specifically accrued or provided for in the Locked Box Accounts; |
| (i) | any payments which would otherwise constitute Leakage, provided that such payments do not exceed RUB [***] ([***] Rubles) in aggregate, and provided that if any payments which would otherwise constitute Leakage exceed RUB [***] ([***] Rubles) in aggregate, the Seller shall be liable for the whole amount of the Leakage and not for the excess over the above threshold only; and |
| (j) | any other payment, accrual, transfer of assets or assumption of liability by the Company or the Complete Target Group which the Purchaser has expressly approved in writing as Permitted Leakage. |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | The following events shall occur on the date of this Agreement (to the extent such events have not already occurred prior to the date of this Agreement): |
Purchaser's obligations
| 1.1 | The Purchaser shall deliver (or procure the delivery) to the Seller: |
| 1.1.2 | written consent of the Purchaser Depositary authorising the Fund to enter into and perform its obligations under this Agreement and each other Transaction Document to which it is a party (if applicable), certified to be a true and complete copy by a director or the secretary of the Purchaser; and |
| 1.1.3 | if relevant, applicable power of attorney or other authority, under which this Agreement and each other Transaction Document to which it is a party (if applicable), is executed on behalf of the Purchaser, certified to be a true and complete copy by a director or the secretary of the Purchaser. |
Seller's obligations
| 1.2 | The Seller shall deliver (or procure the delivery) to the Purchaser: |
| 1.2.3 | two original copies of the Deed of Undertaking duly executed by the Seller and the Company; and |
| 1.2.4 | two original copies of each Transitional Services Agreements duly executed by the [***], [***] and [***] (as the context requires). |
62
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Save for any action that: (i) is expressly provided for or contemplated by this Agreement; (ii) is reasonably required to comply with an obligation of the Seller pursuant to this Agreement; (iii) is a Permitted Transaction; or (iv) is otherwise required in order to facilitate compliance with Applicable Laws or contractual obligations entered into by any member of the Complete Target Group before the date of this Agreement (provided that any such contractual obligations do not give rise to Leakage or cause any of the Seller Warranties to be untrue, inaccurate or misleading), prior to First Completion the Seller shall procure that, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed), no member of the Complete Target Group shall:
| 2.1 | include an annual interest rate on sums advanced that is higher than the key interest rate of the [***] plus [***] per cent ([***]%), or |
| 2.2 | contain a pledge or collateral as security, other than any guarantee granted by a member of the Complete Target Group in respect of any obligations of any other member of the Complete Target Group, |
and for the sole purpose of this paragraph 2:
| (A) | "LTM EBITDA" shall mean adjusted EBITDA for the immediately preceding full [***] period, where adjusted EBITDA means U.S. GAAP net income adjusted so as to exclude each of the following items without double counting (and so that, to the extent any of the following have been charged, expensed or deducted in calculating such net income, the amount shall be added back and, to the extent any of the following have been credited in calculating such earnings, the amount shall be deducted) (1) depreciation and amortization, (2) interest expense, (3) income tax expense, net, (4) expenses (or reversal of expenses) related to the contingent compensation payable to employees in connection with certain business combinations, (5) gain or loss from equity method investments, (6) one-off restructuring and other related expenses, (7) impairment of goodwill and other intangible assets, (8) interest income, and (9) other non-operating income or loss, net; and |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 3. | grant or provide any credit or loan in excess of RUB [***] ([***] Rubles) (whether in a single transaction or a series of related transactions), except for to any member of the Complete Target Group in the ordinary and usual course of business in accordance with past practice in the past [***] months (both as to the scope and volume); |
| 4. | sell, grant an option, right to acquire, right of pre-emption, right of first refusal or preferential right, assign, pledge, create any restriction upon ownership, use or alienation over, or make an agreement to do any of the above in relation to any Material Intellectual Property, save for if any of the foregoing is approved by the PIF. For the avoidance of doubt, the granting of any non-transferable and non-exclusive licenses by the Complete Target Group to its customers and third parties to use the products of the Complete Target Group in the ordinary and usual course of business and which do not place any restrictions on the use of the relevant Material Intellectual Property by the Complete Target Group is not prohibited; |
| 6. | grant or agree to grant any option, right to acquire or call (whether by conversion, subscription or otherwise), sell, assign, otherwise dispose of, or make an agreement to do any of the above in relation to any shares or interest or loan capital in any member of the Complete Target Group (other than the Company) with a market value in excess of RUB [***] ([***] Rubles); (ii) grant or agree to grant any option, right to acquire or call (whether by conversion, subscription or otherwise), sell, assign, otherwise dispose of, or make an agreement to do any of the above in relation to any shares or loan capital in the Company; or (iii) grant any right of pre-emption, right of first refusal, preferential right, pledge, create any restriction upon ownership, use or alienation or make an agreement to do any of the above in relation to any shares or interest or loan capital in any member of the Complete Target Group; |
| 8. | sell, otherwise dispose of, or create an Encumbrance over, any asset of any member of the Complete Target Group with a book or market value in excess of RUB [***] ([***] Rubles); |
| 9. | make any proposal for the winding up or liquidation of any entity within the Complete Target Group; |
| 10. | alter the terms of employment of any Key Employee (save for any increase in the compensation terms of any Key Employee by no more than [***]% of the target total cash compensation for such Key Employee as approved by the compensation committee of the board of directors of the Seller for the year 2024 and disclosed to the Purchaser prior to the |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| date of this Agreement) or terminate the employment of any Key Employee, save for termination for cause, termination at the instance of the employee, or by mutual agreement; |
| 11. | make an admission of liability, agreement, settlement or compromise with any third party in relation to any claim, action or demand against any member of the Complete Target Group that may reasonably result in a loss to member of the Complete Target Group in excess of RUB [***] ([***] Rubles); |
| 12. | introduce any changes in the accounting policies or practices of the Complete Target Group; or |
| 13. | enter into any agreement, undertaking or contract to do any of the above. |
Any request for consent shall set out in reasonable detail the action or matter proposed to be approved and shall be made by the Seller or any Original Group Company in writing and sent by email headed "Project [***] – Consent Request" to each of the persons whose email address is specified below:
Person | Email address |
|---|---|
[***] | [***] |
Consent may be given or refused (with explanation of the reasons for such refusal) by an email reply by any of those persons to the address from which the request was sent and such consent shall not be unreasonably withheld.
Consent shall be deemed to have been given if the Purchaser fails to respond by way of reply to the aforementioned email or by any other form of written notice within [***] Business Days of the request being sent, or, if the Seller or an Original Group Company is required or obliged whether by Governmental Authority or otherwise to take the action for which it is seeking the approval prior to such date (the "Emergency Request"), such earlier date or time as is reasonable in the circumstances and notified to the Purchaser in the Emergency Request.
Within [***] Business Days of a request for approval (other than any Emergency Request), any of the persons to whom the request for approval was sent may request additional information to the extent reasonably necessary to assess the request for approval, in which case the above [***] Business Day-period for approval shall commence from the date of receipt of such additional information by the relevant requesting person.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
For the purpose of this Schedule 4 (Conduct of Business Before First Completion), "Permitted Transaction" shall mean any transactions, actions or steps:
| 1. | required or necessary for the implementation of any Pre-Completion Reorganisation and/or the execution of any Pre-Completion Reorganisation Documents, in each case substantially in accordance with or as contemplated by the Pre-Completion Reorganisation Steps Plan; |
| 2. | which is performed solely amongst the Complete Target Group; |
| 4. | any grant or provision of any credit or loan to any employee of the Complete Target Group in an amount not exceeding RUB [***] ([***] Rubles) in respect of each individual employee; |
| 5. | performed in the ordinary course of the lending activities of [***] (OGRN [***]), [***] (OGRN [***]) and [***] (OGRN [***]); |
| 6. | which are reasonably necessary and undertaken in good faith with the intention of minimizing any adverse effect in an emergency or disaster situation, provided that the Purchaser has been notified accordingly as soon as reasonably practicable after the respective actions or steps have been taken; |
| 7. | which is expressly provided for in any Transaction Document; |
| 8. | which has been consented to, or deemed to have been consented to pursuant to Part A of Schedule 4, by the Purchaser; |
| 9. | to engage in discussions or conduct formal proceedings (including, without limitation, in relation to any dispute), including proceedings with any Governmental Authority, the non-conduct of which could prejudice the business of any member of the Complete Target Group or the Transaction provided that such engagements shall not amount to an admission of liability, settlement or compromise. For the purposes of this paragraph, formal proceedings include any action, suit, litigation, arbitration, proceeding, hearing, inquiry, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel; |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 10. | necessary for compliance with Applicable Laws; |
| 11. | relating to the winding up or liquidation (as the context requires) of the following entities: |
| 11.1 | [***]; |
| 11.2 | [***]; |
| 11.3 | [***]; |
| 11.4 | [***]; |
| 11.5 | [***]; |
| 11.6 | [***]; |
| 11.7 | [***]; |
| 11.8 | [***]; |
| 11.9 | [***]; |
| 11.10 | [***]; |
| 11.11 | [***]; and |
| 11.12 | [***]; |
| 12. | any transactions, actions or steps as agreed by the Seller and the Purchaser in writing on the date hereof; and |
| 13. | any agreement, undertaking or other arrangement to do any of the foregoing. |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | The following events shall occur on the First Completion Commencement Date (to the extent such events have not occurred prior to the First Completion Commencement Date): |
Purchaser's obligations
| 1.1 | The Purchaser shall deliver (or procure the delivery) to the Seller: |
| 1.1.1 | a notice substantially in the form set out in Part C of Schedule 13 (Completion Notifications) of: (i) the number of the First Tranche Exchange NV Shares to be exchanged at First Completion; (ii) the total number of the First Tranche Total Ordinary Company Shares to be acquired at First Completion; and (iii) the calculation of the First Tranche Payment in CNH; |
| 1.1.2 | a copy of or evidence of the satisfaction of each of the Conditions in paragraphs 1 to 4 (inclusive) of Clause 4.1 (Conditions), in each case, on the terms set out in Clause 4.11; |
| 1.1.3 | the details of the Purchaser's custody account(s) opened with the Purchaser Depositary; |
| 1.1.5 | copies of the written resignations of certain directors from the board of directors of the Seller, waiving, to the extent possible under Applicable Law, all claims against the Seller; and |
| 1.1.6 | a signature page of the NV Priority Share transfer agreement between the Seller and the PIF by PDF file (or other scanned document) duly executed by the PIF's authorised signatory. |
Seller's obligations
| 1.2 | The Seller shall deliver (or procure the delivery) to the Purchaser: |
| 1.2.1 | a copy of the minutes of a meeting of the shareholders of the Seller authorising it to enter into and perform its obligations under this Agreement and each other Transaction Document to which it is a party (if applicable), certified to be a true and complete copy by a director or the secretary of the Seller; |
| 1.2.2 | the details of the Seller's custody account(s) opened with the Purchaser Depositary; |
| 1.2.3 | the Seller's custody account statement issued by the Purchaser Depositary confirming that the First Tranche Total Ordinary Company Shares and the Preference Share A are registered in the Seller's custody account(s) and are free from Encumbrances; and |
68
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1.2.4 | the Immovable Property Share Statement. |
Settlements
| 1.4 | On the First Completion Commencement Date: |
provided that unless paragraph 1.6 applies, the blocking shall automatically lapse upon expiry of [***] Business Days (in Moscow), whereupon the Parties shall agree on a new First Completion Commencement Date; and
| 1.4.3 | the Parties shall take all reasonable endeavours to procure that the Purchaser Depositary simultaneously executes the instructions set out in paragraphs 1.4.1 and 1.4.2 above and provides to each Party the confirmation documents in respect thereof in accordance with the First Completion Settlement Agreement. |
| 1.6.1 | makes entries on removal of the blocking of the First Tranche Total Ordinary Company Shares and the Preference Share A and on transfer of the First Tranche Total Ordinary Company Shares and the Preference Share A to the Purchaser's custody account opened with the Purchaser Depositary; and |
69
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
in each case in accordance with the First Completion Settlement Agreement and on the earlier of:
| (A) | a date falling [***] Business Days after the receipt of the confirmation of the remittance of the First Tranche Payment as set out in paragraph 1.5 above; and |
| 1.7 | Following the performance by the Parties of their respective obligations set out in paragraphs 1.1 - 1.6 above, the Parties shall take all reasonable endeavours to procure: |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | The following events shall occur on the Second Completion Commencement Date (to the extent such events have not occurred prior to the Second Completion Commencement Date): |
| 1.1 | The Purchaser shall deliver (or procure the delivery) to the Seller: |
| 1.1.1 | a notice substantially in the form set out in Part D of Schedule 13 (Completion Notifications) of: (i) the number of the Second Tranche Exchange NV Shares to be exchanged at Second Completion; (ii) the total number of the Second Tranche Total Ordinary Company Shares to be acquired at Second Completion; and (iii) the calculation of the Second Tranche Payment in CNH; |
| 1.1.2 | (unless provided earlier) three original copies of the Second Completion Settlement Agreement duly executed by the Purchaser and the Purchaser Depositary; and |
| 1.1.3 | the details of the Purchaser's custody account(s) opened with the Purchaser Depositary; |
| 1.2 | The Seller shall deliver (or procure the delivery) to the Purchaser: |
| 1.2.1 | (unless provided earlier) three original copies of the Second Completion Settlement Agreement duly executed by the Seller; and |
| 1.2.2 | the details of the Seller's custody account(s) opened with the Purchaser Depositary. |
NVSP* (NSTES - ASTES),
where:
NVSP means NV Share Price;
NSTES means the amount of the Second Tranche Exchange NV Shares as notified by the Purchaser to the Seller for the purported exchange in accordance with Clause 7.2; and
ASTES means the amount of the NV Shares actually delivered by the Purchaser at Second Completion;
| 1.4 | Following the performance by the Parties of their obligations set out in paragraphs 1.1- 1.3 above and the obligations set out in the Second Completion Settlement Agreement, the Parties shall take all reasonable endeavours to procure: |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1.5 | The Parties agree that the provision set out in paragraph 1.8 of Schedule 5 (First Completion Obligations) shall also apply to Second Completion equally (mutatis mutandis). |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | Incorporation |
The Seller is duly incorporated, duly organised and validly existing under the laws of its jurisdiction of incorporation and has full power to conduct its business as conducted at the date of this Agreement.
| 2. | Corporate power and authority |
Save to the extent the same are the subject of the Conditions, the Seller has the corporate power and authority to enter into and perform this Agreement and any other Transaction Document.
| 3. | Binding agreements |
The provisions of this Agreement and any of the Transaction Documents, constitute valid and binding obligations on the Seller and are enforceable against the Seller in accordance with their respective terms, in each case subject to principles of Applicable Laws of general application limiting obligations.
| 4. | Due authorisation, execution, and delivery |
Save to the extent the same are the subject of the Conditions, the Seller has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any Transaction Documents.
| 5. | Effect of the Transaction |
| 5.1 | The execution and delivery by the Seller of, and the performance by the Seller of its obligations under, this Agreement and any other Transaction Document will not result in: |
| 5.1.1 | a breach of or conflict with any provision of the Articles of Association or any other constitutional documents of the Seller; |
| 5.1.2 | a material breach of, or constitute a material default under, any instrument to which the Seller is a party or by which it is bound; or |
| 5.1.3 | a breach of any Applicable Law. |
| 6. | Consents |
Save to the extent the same are the subject of the Conditions, all consents, permissions, authorisations, approvals from any Governmental Authority or Regulator having jurisdiction over the Seller which are necessary for it to obtain in order to enter into and perform this Agreement and any other Transaction Document in accordance with its terms, will have been unconditionally obtained by the First Completion Commencement Date.
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 7. | SEC Reports |
Each of the SEC Reports, as of its respective filing date, complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Report, and, except to the extent that information contained in any SEC Report has been revised or superseded by a later filed SEC Report filed and publicly available prior to the date of this Agreement, none of the SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
| 8. | Title to the Sale Shares |
| 8.1 | The Seller is the legal and beneficial owner of the Sale Shares free from any Encumbrances. |
| 8.3 | No decision has been taken by the Seller or the Company nor has any other arrangement or agreement been made, in each case which has not been fulfilled, that may result in a change in the amount or other reorganisations of the share capital of the Company, save as expressly contemplated by the Pre-Completion Reorganisation Steps Plan. |
| 8.4 | No person has any right (whether exercisable now or in the future and whether contingent or otherwise) to require the Company: |
| 8.5 | The Seller has the full right to exercise all voting rights and other rights over the Sale Shares and to transfer the legal and beneficial title to the Sale Shares to the Purchaser on the terms and subject to this Agreement. |
| 8.6 | There are no outstanding claims against the Seller in connection with the Sale Shares. |
| 9. | The Company and the Material Subsidiaries |
| 9.1 | The particulars set out in Schedule 1 (Details of the Group) are true and accurate. |
| 9.2 | The Company and each Material Subsidiary is validly existing and is a company duly incorporated and registered under the law of its jurisdiction of incorporation. |
| 9.3 | The direct and indirect subsidiaries of the Company upon completion of the Pre-Completion |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| Reorganisation (as described in Clause 4.2) are set out in Part B of Schedule 1 (Details of the Group) and, save for those companies set out therein, the Company has no other direct or indirect subsidiaries. |
| 9.4 | There exists no shareholders' agreement or similar arrangement or agreement which purports to regulate, control or otherwise affect the voting or disposition of the Sale Shares or the shares (participatory interests) of the Company or any Material Subsidiary. |
| 9.5 | No decision has been taken by any member of the Complete Target Group in favour of any third party (other than the Company or Material Subsidiary), nor has any other arrangement or agreement been made in favour of a third party (other than the Company or Material Subsidiary), in each case which has not been fulfilled, that may result in a change in the amount or other reorganisations of the charter capital of any Material Subsidiary. |
| 9.6 | Members of the Complete Target Group are the sole legal owners of the shares (participatory interests) of each Material Subsidiary as shown in Part B of Schedule 1 (Details of the Group) as being held by the relevant members of the Complete Target Group, free from any Encumbrances. |
| 9.7 | No person has any right (whether exercisable now or in the future and whether contingent or otherwise) to require any Material Subsidiary: |
save in respect of any agreement or arrangement which exists to which only members of the Complete Target Group are a party.
| 9.8 | There are no outstanding claims against the Company, Seller or any Seller Group Company in connection with the shares (participatory interests) in a Material Subsidiary and, so far as the Seller is aware, there are no circumstances likely to give rise to any such claims. |
| 9.9 | The transactions and transfers contemplated by the Pre-Completion Reorganisation have been completed in accordance with the Pre-Completion Reorganisation Steps Plan, constitutional documents of each member of the Complete Target Group and, in all material respects, in accordance with Applicable Law. |
| 10. | Proceedings against the Seller |
| 10.1 | There are no: |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
and which, in each case, has or could have a material adverse effect on its ability to perform its obligations under this Agreement or any other Transaction Document.
| 11. | Solvency |
The Seller is not bankrupt or insolvent or unable to pay its debts when due and no order has been made, and no corporate action or other step has been taken and no legal proceedings have been started or threatened, for its winding-up, dissolution or reorganisation or for the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager (or equivalent in any jurisdiction) of it or over any of its assets, or any other measures taken against or in respect of it under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under Applicable Law, would justify any such orders, steps or proceedings.
| 12. | Sanctions relating to the Seller |
| 12.1 | The Seller is not currently the subject or the target of any Sanctions administered or enforced by any Sanctions Authority, nor is the Seller designated under any Sanctions List. |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | Locked Box Accounts |
| 1.1 | The Locked Box Accounts have been prepared on a basis consistent with that used in preparing the Accounts and fairly represent the combined assets and liabilities of the Complete Target Group as at and to the date to which they have been prepared, except that: |
| (A) | the quantitative impairment test of goodwill; |
| (B) | valuations of separate business units performed by an independent appraiser; |
| (C) | stocktaking of inventory, operating right-of-use assets, property and equipment and intangible assets; and |
| (D) | signing of reconciliation acts with counterparties (debtors and creditors) that have the most material balances; |
| (A) | [***]; and |
| (B) | [***]; |
| (A) | [***]; |
| (B) | [***]; and |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| (C) | [***]. |
| 1.2 | The Locked Box Accounts do not materially misstate the assets or liabilities of the Complete Target Group as at the Locked Box Date, for which purposes misstatement shall be deemed to be material if the aggregate value of such misstatement is in excess of RUB [***] ([***] Rubles). |
| 1.3 | Each contractual agreement entered into from the Locked Box Date to the date of this Agreement which, if entered into after the date of this Agreement, would require the Purchaser's prior written consent pursuant to paragraphs 2, 5, 7 or 8 of Schedule 4 (Conduct of Business Before First Completion), is listed in the Disclosure Letter, and true, accurate and complete copies of any such contractual agreements have been Disclosed to the Purchaser. |
| 1.4 | Since the Locked Box Date, the Seller has not knowingly taken any action, the sole purpose of which is to circumvent the prohibitions relating to Leakage in Clause 13 of this Agreement. |
| 2. | Litigation |
So far as the Seller is aware, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending, to which any of the Complete Target Group is a party or to which any property of the Company or of the Complete Target Group is subject that, individually or in the aggregate, if determined adversely to the Complete Target Group, could reasonably be expected to have a Material Adverse Effect, and no such investigations, actions, suits or proceedings are, to the knowledge of the Seller, threatened or contemplated by any governmental or regulatory authority or threatened by others.
| 3. | Intellectual Property |
| 3.1 | At the date of this Agreement, the Complete Target Group: |
| 3.1.1. | owns all Group Intellectual Property and Group Information Technology; and |
| 3.1.2. | so far as the Seller is aware, has access to all necessary Third-Party Intellectual Property, |
which, together, encompasses all the Intellectual Property and Information Technology that is necessary in the context of the business of the Complete Target Group as conducted by the Target Group Companies as at the date of this Agreement, including, without limitation, with respect to the internet search engine technology used by the Complete Target Group.
| 3.2 | At the date of this Agreement, the Complete Target Group owns all Group Intellectual Property and Group Information Technology that was developed within the Prospective Streams which, on the date of this Agreement, is necessary, or could reasonably be expected to be necessary, for the further development of such Prospective Streams. |
| 3.3 | Other than as provided by the Transitional Services Agreements, no Information Technology or Intellectual Property depends or otherwise relies on any service or data owned or controlled by the Seller or any Seller Group Company. |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 3.4 | Other than as provided by the Transitional Services Agreements, no Group Intellectual Property and no Group Information Technology is subject to any Encumbrance that would, or could reasonably be considered to, adversely impact, restrict or otherwise impair: (i) the Complete Target Group's use or application of the Material Intellectual Property as it is used or applied on the date of this Agreement; or (ii) the Complete Target Group's ability to dispose of the Material Intellectual Property. |
which, in each case, resulted in or could reasonably be expected to result in an IP Claim MAE, and, so far as the Seller is aware, no member of the Complete Target Group has received notice of, or is aware of facts that would form a reasonable basis for, any such notice or claims, which, individually or in the aggregate, if the subject of an unfavourable decision, ruling or finding, would have an IP Claim MAE.
| 3.6 | The business and operations of the Complete Target Group do not infringe the rights of the Seller and the Seller Group Companies, in respect of: |
| (A) | is necessary in the context of the business of the Complete Target Group as conducted by the Target Group Companies as at the date of this Agreement, including, without limitation, with respect to the internet search engine technology used by the Complete Target Group; and |
| (B) | was developed within the Prospective Streams which, on the date of this Agreement, is necessary, or could reasonably be expected to be necessary, for the further development of such Prospective Streams; and |
in each case, which results or may reasonably be expected to result in a Material Adverse Effect.
| 4. | No Undisclosed Relationships |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
To the Seller's knowledge, no relationship, direct or indirect, exists between or among the Complete Target Group, on the one hand, and the directors, officers, shareholders, customers or suppliers of the Complete Target Group, on the other, that is required by the Securities Act to be described in a registration statement to be filed with the SEC and that is not so described in the SEC Reports.
| 5. | Permits |
Each member of the Complete Target Group possesses all licenses, certificates, permits and other authorisations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses, except where the failure to possess or make the same would not or could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; and none of the Complete Target Group has received notice of any revocation or modification of any such license, certificate, permit or authorisation or has any reason to believe that any such license, certificate, permit or authorisation will not be renewed in the ordinary course.
| 6. | Employees |
| 6.2 | No terms of employment of any Key Employee require on termination of the employee's employment payment of compensation which exceeds the minimum amount of compensation payable on termination under Applicable Laws, including any so-called "golden parachute" type arrangements. |
| 6.4 | No person, other than the Eligible Employees, has received, or has any entitlement to receive, any shares in the Company transferred by the Seller to Yandex.Technologies LLC in connection with the Pre-Completion Sale. |
| 7. | Taxes |
| 7.1 | Each member of the Complete Target Group has: |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 7.2 | No Tax deficiency has been determined adversely to any of the Complete Target Group which has had (nor does the Seller have any knowledge of any Tax deficiency which, if determined adversely to the Complete Target Group, might individually or in the aggregate have) a Material Adverse Effect. |
| 7.3 | So far as the Seller is aware, no member of the Complete Target Group is party to any transaction which is fraudulent or a sham or which has as its main purpose or one of its main purposes the avoidance of a liability to Tax. |
| 7.4 | Each member of the Complete Target Group is, and since the date of its incorporation has been, resident for Tax purposes only in the jurisdiction in which it was incorporated. |
| 7.5 | So far as the Seller is aware: |
| 7.6 | The Seller, in the [***] years prior to the date of this Agreement: |
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 8. | No Unlawful Payments |
No member of the Complete Target Group or, to the Seller's knowledge, any Affiliate or Representative of any of the Complete Target Group, has taken any action in furtherance of an offer, payment, promise to pay, or authorisation or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any "government official" (including any officer or employee of a government or government-owned or controlled entity or of a public international organisation, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage relating to the Company or any other member of the Complete Target Group or any of their respective businesses; for the past [***] years, the Target Group Companies have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
| 9. | Compliance with Anti-Money Laundering Laws |
The current operations of the Company and the operations conducted within the past [***] years by the Target Group Companies are and have been, to the knowledge of the Seller, in material compliance with applicable financial recordkeeping and reporting requirements, including to the extent applicable those of the (i) European Union Money Laundering Directives and member states' implementing legislation, (ii) the UK Proceeds of Crime Act 2002, (iii) the U.S. Bank Secrecy Act, USA Patriot Act and other US legislation relating to money laundering, including the Currency and Foreign Transactions Reporting Act of 1970, as amended, and (iv) any other laws, regulations and orders relating to money laundering or the proceeds of criminal activity and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the "Anti-Money Laundering Laws"), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Complete Target Group with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Seller, threatened.
| 10. | No Conflicts with Sanctions Laws |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
None of the Complete Target Group or, to the Seller's knowledge, any Affiliate or Representative of any member of the Complete Target Group is currently the subject or the target of any Sanctions administered or enforced by any Sanctions Authority and including, without limitation, designated under any Sanctions List, which have the effect of making unlawful, prohibiting or otherwise restricting First Completion, Second Completion, the Transaction or performance by any Party of its obligations under this Agreement.
| 11. | This paragraph is intentionally left blank. |
| 12. | No Defaults |
| 12.1 | So far as the Seller is aware, none of the Company or any other member of the Complete Target Group is, or will be as a result of execution of this Agreement or Completion, (i) in material violation of its constitutional or organisational documents; (ii) in default, and no event has occurred, or will occur as a result of execution of this Agreement or Completion, that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the any member of the Complete Target Group is a party or by which members of the Complete Target Group are bound or to which any of the property or assets of the Complete Target Group is subject; or (iii) in violation of any Applicable Laws or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of each of (i) and (ii) above, for any such default or violation that would not or could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. |
For the purposes of this paragraph 12.2, "Material Contract" means: (i) any contract or agreement to which a member of the Complete Target Group is a party involving aggregate consideration payable to or by such member of the Complete Target Group, or liabilities of such member of the Complete Target Group, in an amount exceeding RUB [***] ([***] Rubles) in any year; and (ii) any contract or agreement as to which the breach, termination or failure to renew by such member of the Complete Target Group could reasonably be considered to be material to the business or operations of the Complete Target Group taken as a whole.
| 13. | No Reliance on the Seller or Seller Group Companies |
| 13.2 | Each Material Subsidiary owns or has the right to use each asset, and has access to all |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| information necessary to continue its operations in the ordinary course of business, as conducted by such Material Subsidiary in the [***] months prior to the date of this Agreement, and such use and access are not wholly or partly dependent on any facilities or services under the ownership or control of the Seller or any of the Seller Group Company. |
| 13.4 | At First Completion, all Intra-Group Agreements that would or could reasonably be deemed to be material to the business, properties, liabilities (actual or contingent), management, condition (financial or otherwise), financial position, profits, shareholders' equity, operations or prospects of the Complete Target Group taken as a whole have been discharged or otherwise terminated. |
| 14. | No Marketing or Disclosure of the Transaction |
No transaction contemplated by this Agreement has been announced, disclosed, communicated, or marketed by the Seller prior to the date hereof.
| 15. | No Internal Regulations |
From the date of the Company's incorporation, neither the general shareholders meeting nor board of directors of the Company have adopted any internal regulations or policies.
| 16. | Pre-Completion Reorganisation |
The Pre-Completion Reorganisation, solely to the extent carried out outside of the Russian Federation, complies in all material respects with Applicable Laws (including, for the avoidance of doubt, applicable anti-trust and competition laws in any jurisdiction (other than the Russian Federation)).
| 17. | No Other Representations and Warranties |
Except for the warranties contained in Schedule 7 (Seller Warranties) and this Schedule 8 (Business Warranties), the Seller makes no other representation or warranty, express or implied, written or oral, and hereby, to the maximum extent permitted by Applicable Laws, disclaims any such representation or warranty, whether by the Seller or any other person, with respect to the Seller or with respect to any other information made available to the Purchaser or its representatives in connection with the transactions contemplated hereby.
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 1. | Incorporation |
The Purchaser is duly incorporated, duly organised and validly existing under the laws of its jurisdiction of incorporation.
| 2. | Corporate power and authority |
The Purchaser has the corporate power and authority to enter into and perform this Agreement and any agreement entered into pursuant to the terms of this Agreement.
| 3. | Binding agreements |
The provisions of this Agreement and any agreement entered into pursuant to the terms of this Agreement, constitute valid and binding obligations on the Purchaser and are enforceable against it in accordance with their respective terms, in each case subject to principles of Applicable Laws of general application limiting obligations.
| 4. | Due authorisation, execution and delivery |
The Purchaser has duly authorised, executed and delivered this Agreement and will, at Completion, have authorised, executed and delivered any agreements to be entered into by the Purchaser pursuant to the terms of this Agreement.
| 5. | No breach |
The execution and delivery by the Purchaser of, and the performance by it of its obligations under, this Agreement and any agreement entered into pursuant to the terms of this Agreement will not result in:
| 5.1 | a breach of or conflict with any provision of the Purchaser's memorandum or articles of association or equivalent constitutional documents nor any of the constitutional documents of the Fund, including the Fund Documents; |
| 5.2 | a material breach of, or constitute a material default under, any instrument to which the Purchaser is a party or by which it is bound; or |
| 5.3 | a breach of any Applicable Laws. |
| 6. | Consents |
Save to the extent the same are the subject of the Conditions, all consents, permissions, authorisations, approvals from any Governmental Authority or Regulator having jurisdiction over it which are necessary for the Purchaser to obtain in order to enter into and perform this Agreement and any agreement into pursuant to the terms of this Agreement in accordance with its terms, will have been unconditionally obtained by the First Completion Commencement Date.
| 7. | Proceedings |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
There are no:
| 7.1 | outstanding judgments, orders, injunctions or decrees of any governmental or regulatory body or arbitration tribunal against or affecting the Purchaser or the Fund, or any of its Affiliates, or so far as the Purchaser is aware, any of the Underlying Investors or any of their Affiliates; |
| 7.2 | lawsuits, actions or proceedings pending or, to its knowledge, threatened against or affecting the Purchaser or any of the Underlying Investors; or |
| 7.3 | investigations by any governmental or regulatory body which are pending or, to its knowledge, threatened against the Purchaser or any of the Underlying Investors, |
and which, in each case, has or could have a material adverse effect on its ability to perform its obligations under this Agreement or any other agreements entered into pursuant to the terms of this Agreement.
| 8. | Beneficial Ownership |
The identity of each and any of the Underlying Investors, which for the avoidance of doubt includes such Underlying Investors' ultimate beneficial owners, to the extent applicable, as provided to the Seller prior to the date hereof is true and accurate.
| 9. | Title to Exchange NV Shares |
| 9.1 | At First Completion, the Purchaser is the legal and beneficial owner of the First Tranche Exchange NV Shares free from any Encumbrances. |
| 9.2 | The Purchaser has not disposed of any Second Tranche Exchange NV Shares and/or created any Encumbrance thereover. |
| 10. | Sufficient Funds |
The Purchaser has obtained financing commitments sufficient to meet its obligations under this Agreement such that it cannot foresee that it will not be fully funded and have all of the necessary cash resources in order to fulfil its obligations under this Agreement at the relevant Completion.
| 11. | Purchase For Own Account |
The Purchaser is acquiring the Ordinary Sale Shares as principal, for its own account (and those of its Underlying Investors and Affiliates) solely for the purpose of investment, not as nominee or agent, and not with a view to, or for sale in connection with, any distribution of the Ordinary Sale Shares in violation of this Agreement. The Purchaser has (and, so far as the Purchaser is aware, each Underlying Investor has) no present agreement, undertaking,
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EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
arrangement, obligation, or commitment providing for the direct or indirect disposition of the Ordinary Sale Shares, save in respect of the transactions contemplated by Clause 12.4.
| 12. | Solvency |
Neither the Purchaser nor any of the Underlying Investors is bankrupt or insolvent or unable to pay its debts when due and no order has been made, and no corporate action or other step has been taken and no legal proceedings have been started or threatened, for its winding-up, dissolution or reorganisation or for the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager (or equivalent in any jurisdiction) of it or over any of its assets, or any other measures taken against or in respect of it under any applicable insolvency, reorganisation or similar laws in any relevant jurisdiction, and no events have occurred which, under Applicable Laws, would justify any such orders, steps or proceedings.
| 13. | Anti-Bribery and Anti-Money Laundering |
| 13.2 | The funds that the Purchaser will use for the purchase of the Sale Shares do not derive from criminal activity. |
| 14. | Sanctions |
| 14.2 | As far as the Purchaser is aware, none of the persons from whom the Purchaser has acquired the First Tranche Exchange NV Shares as at First Completion, is the target of any Sanctions, owned or Controlled by any Sanctioned Person or designated on any Sanctions List, in each case to the extent relevant Sanctions have the effect of making unlawful, prohibiting or otherwise restricting First Completion, the Transaction or performance by any Party of its obligations under this Agreement. |
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| 14.3 | As far as the Purchaser is aware, none of the persons from whom the Purchaser has acquired the Second Tranche Exchange NV Shares under over-the-counter transactions as at Second Completion, is the target of any Sanctions, owned or Controlled by any Sanctioned Person or designated on any Sanctions List, in each case to the extent relevant Sanctions have the effect of making unlawful, prohibiting or otherwise restricting Second Completion, the Transaction or performance by any Party of its obligations under this Agreement (which warranty, for the avoidance of doubt, shall not extend to any Exchange NV Shares acquired by the Purchaser via stock exchange infrastructure). |
| 15. | Non-Reliance |
Neither the Purchaser, the Fund, any of the Underlying Investors, nor, so far as the Purchaser is aware, any of their respective Representatives has relied or is relying on any representation or warranty, express or implied, written or oral, made by the Seller or any of its Representatives, except those representations and warranties expressly set forth in Schedule 7 (Seller Warranties) and Schedule 8 (Business Warranties), as qualified by the contents of the Disclosure Letter. Neither the Seller nor any of its Representatives will have or be subject to any liability or indemnification obligation to the Purchaser or any other person resulting from any other express or implied representation or warranty with respect to the Company or the Complete Target Group, unless any such information is expressly included in a representation or warranty contained in Schedule 7 (Seller Warranties) and Schedule 8 (Business Warranties), as qualified by the contents of the Disclosure Letter.
| 16. | Tax |
The Purchaser is not a resident in any jurisdiction, other than the Russian Federation, for Tax purposes.
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| 1. | Disclosure |
The Seller shall not be liable in respect of a Claim for breach of any of the Seller Warranties to the extent that the facts and circumstances giving rise to such Claim are Disclosed in the Disclosure Letter or are treated as Disclosed pursuant to the terms of the Disclosure Letter.
| 2. | Time limits |
| 2.2.1 | in the case of any Fundamental Claim or Claim under Clauses 14.1.1 to 14.1.4 (inclusive), on or before the date being [***] years from the First Completion End Date; |
| 2.2.3 | in the case of any Pre-Completion Conduct Claim, Locked Box Warranty Claim or any claim under Clause 13 (Leakage), on or before the date being [***] months from the First Completion End Date; |
| 2.2.4 | any claim under Clauses 17.6 to 17.9 (Confidentiality), on or before [***]; and |
| 2.2.5 | any other Claim (other than a Fundamental Claim, Tax Claim, Locked Box Warranty Claim and Claims under Clauses 14.1.1 to 14.1.4 (inclusive)), or any |
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| other claim under this Agreement, on or before the date being [***] months from the First Completion End Date. |
| 2.3 | To the extent that a Claim arises out of a liability which at the time that it is notified to the Seller is contingent only, the Seller shall not be under any obligation to make any payment to the Purchaser unless and until the liability ceases to be contingent and becomes an actual liability (provided that, subject to any such Claim being notified within the period specified in paragraph 2.2, the [***] month time limit referred to in paragraph 2.4 for commencing proceedings in respect of that Claim shall begin on the date on which the relevant liability ceases to be contingent and becomes an actual liability). |
| 3. | Monetary limits |
| 3.1.1 | all Leakage and Locked Box Warranty Claims shall not exceed [***] per cent ([***]%) of the amount of the Total Consideration that is received by the Seller in cash; |
| 3.1.2 | the Fundamental Claims and Claims under Clauses 14.1.1 to 14.1.4 (inclusive) shall not exceed [***] per cent ([***]%) of the amount of the Total Consideration that is received by the Seller in cash; |
| 3.1.3 | the Pre-Completion Conduct Claims and other Claims (other than the Fundamental Claims, Locked Box Warranty Claims and Claims under Clauses 14.1.1 to 14.1.4 (inclusive)) shall not exceed [***] per cent ([***]%) of the Total Consideration, save that any such amount shall not exceed the amount of the Total Consideration that is received by the Seller in cash; and |
| 3.1.4 | all other claims under this Agreement shall not exceed [***] per cent ([***]%) of the amount of the Total Consideration that is received by the Seller in cash. |
| 3.3 | Notwithstanding the provisions of paragraph 3.2 of this Schedule 10, the Seller shall not be liable for an Actual Tax Liability to which Clauses 14.1.5 and 14.1.6 applies unless, in respect of all claims under Clause 14.1.5 or all claims under Clause 14.1.6, the amount of the Actual Tax Liability exceeds USD [***] ([***] Dollars), in which case the Seller shall be |
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| liable for the full amount of such Actual Tax Liability and not for the excess over the foregoing threshold only. |
| 3.4 | For the purpose of this paragraph 3 of Schedule 10, all Claims arising from the same or substantially the same set of circumstances shall be treated as one individual Claim. |
| 3.5 | The limitation in paragraph 3.2 of this Schedule 10 does not apply to Fundamental Claims and Claims under Clauses 14.1.1 to 14.1.4 (inclusive). |
| 4. | cure |
| 5. | Purchaser's actions |
| 5.1 | The Seller shall not be liable for a Claim in respect of any matter, fact or circumstance: |
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| 6. | Changes in law, regulation and practice |
| 6.1 | The Seller shall not be liable in respect of a Claim to the extent that the Claim arises or is increased as a result of: |
| 6.1.2 | any change in generally accepted accounting practice after the date of this Agreement; or |
| 7. | Matters included in the locked box Accounts |
The Seller shall not be liable in respect of a Claim to the extent that the Claim relates to any matter specifically provided for or recognised, or included as a liability, in the Locked Box Accounts.
| 8. | Sums recoverable from third parties |
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| that the person receiving such sum shall pay to the Seller, as soon as practicable after receipt, an amount equal to the sum actually recovered (less any reasonable costs and expenses incurred by the Purchaser or any member of the Complete Target Group (or any assignee or successor in title thereof) in recovering the sum and any Tax attributable to or suffered in respect of the sum recovered), but not exceeding the amount paid by the Seller to the Purchaser in discharge of the Claim. |
| 8.3 | The provisions of paragraphs 8.1 and 8.2 of this Schedule 10 shall not apply where the Purchaser (acting reasonably and in good faith) determines that complying with the relevant provisions would be materially prejudicial to the interests of the Complete Target Group, or would otherwise materially damage the goodwill of the Complete Target Group. |
| 9. | Actions by third parties |
| 9.1.1 | the Purchaser shall as soon as practicable notify the Seller, giving reasonable details of the relevant facts and circumstances relating to the Third Party Claim; |
| 10. | Information provided by the Seller |
The Seller expressly disclaims all liability and responsibility for any conclusion, opinion, forecast or evaluation contained within or derived or capable of being derived from any investigation carried out or made by or on behalf of the Purchaser in the course of any due diligence or other enquiry prior to the Parties entering into this Agreement or any other data,
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document, record or information disclosed by the Seller or any member of the Complete Target Group or any employee, agent or adviser of any of them, to the Purchaser or to any person on behalf of the Purchaser.
| 11. | No LiabIlity to third parties |
No person other than the Purchaser is entitled to make any Claim, save to the extent that Clause 17.14 (Third Party Rights) provides otherwise.
| 12. | Change of Control |
| 12.3 | For the avoidance of doubt, an internal reorganisation within the Purchaser's Group, or the liquidation or legal reorganisation of a member of the Purchaser's Group (other than the Purchaser) whereby it ceases to exist, would not necessarily of itself constitute a change of Control of the Purchaser or of a member of the Complete Target Group or the assets, business or revenue of an entity in the Complete Target Group. |
| 13. | Mitigation |
Where the Seller is or may likely become liable in respect of any Claim, the Purchaser shall take all reasonable steps, and (if applicable) shall (following First Completion) procure that
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the members of the Complete Target Group and any other relevant person shall take all reasonable steps, to mitigate the loss in respect of which the Claim is made.
| 14. | No double recovery |
The Purchaser agrees that it shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one shortfall, damage, deficiency, breach or other set of circumstances which give rise to one or more Claims. For this purpose, recovery by an entity in the Complete Target Group shall be deemed to be recovery by the Purchaser.
| 15. | Indirect loss |
| 15.1 | The Seller shall not be liable for any: |
| 15.1.1 | indirect or consequential loss; |
| 15.1.2 | indirect loss of profit; or |
| 15.1.3 | punitive damages (whether direct or indirect). |
| 16. | Cooperation and provision of information |
provided that the Seller will give the Purchaser at least [***] Business Days' prior notice and will, and will procure that its advisers will, treat all information that is disclosed as confidential, and that nothing in this paragraph 16.1 shall require the Purchaser to disclose: (i) any legally privileged information or internal analysis that has been prepared by, or for the benefit of, the Complete Target Group, (ii) the confidential information disclosure of which by the Purchaser will violate the obligations owed by the Purchaser or any member of the Complete Target Group to any third party other than the Seller; or (iii) any other
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documents and information to the extent such disclosure would materially prejudice the ability of the Purchaser to bring a claim against the Seller.
| 16.3 | For the avoidance of doubt, the Seller shall not be exempt from its liability under any Claim solely by reason of the Purchaser failing to comply with any of the provisions of this paragraph 16. |
| 17. | General |
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| | Complete Target Group combined balance sheet as of 30 September 2023 (in millions of Russian rubles) | | ||
| | RUB | | ||
[ASSETS | | | | ||
Cash and cash equivalents | | [***] | | ||
Accounts receivable | | [***] | | ||
Sales financing receivable | | [***] | | ||
Prepaid expenses | | [***] | | ||
Inventory | | [***] | | ||
Funds receivable | | [***] | | ||
VAT reclaimable | | [***] | | ||
Net investment in the lease | | [***] | | ||
Investments in debt securities | | [***] | | ||
Bank deposits and loans to customers | | [***] | | ||
Other current assets, including | | [***] | | ||
Other receivables | | [***] | | ||
Loans granted | | [***] | | ||
Prepaid income tax | | [***] | | ||
Contract assets | | [***] | | ||
Restricted cash | | [***] | | ||
Prepaid other taxes | | [***] | | ||
Interest receivable | | [***] | | ||
Other | | [***] | | ||
Total current assets | | [***] | | ||
Property and equipment | | [***] | | ||
Operating lease right-of-use assets | | [***] | | ||
Intangible assets | | [***] | | ||
Content assets | | [***] | | ||
Goodwill | | [***] | | ||
Equity method investments | | [***] | | ||
Investments in non-marketable equity securities | | [***] | | ||
Deferred tax assets | | [***] | | ||
Net investment in the lease | | [***] | | ||
Long-term prepaid expenses | | [***] | | ||
Bank deposits and loans to customers | | [***] | | ||
Other non-current assets, including | | [***] | | ||
Loans granted | | [***] | | ||
Contract assets | | [***] | | ||
Restricted cash | | [***] | | ||
VAT reclaimable | | [***] | | ||
Other receivables | | [***] | | ||
Total non-current assets | | [***] | | ||
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Investments in group companies | | [***] | | |||
Due from group companies | | [***] | | |||
TOTAL ASSETS | | [***] | | |||
| | Complete Target Group combined balance sheet as of September 30, 2023 (in millions of Russian rubles) | ||||
| | RUB | ||||
LIABILITIES AND SHAREHOLDERS' EQUITY | | | ||||
Accounts payable, accrued and other liabilities, including | | [***] | ||||
Trade accounts payable for services | | [***] | ||||
Other trade accounts payable and accrued liabilities | | [***] | ||||
Salary and other compensation expenses payable/accrued to employees | | [***] | ||||
Liabilities under the reverse factoring program | | [***] | ||||
Operating lease liabilities, current | | [***] | ||||
Content liabilities | | [***] | ||||
Finance lease liability, current | | [***] | ||||
Accounts payable for acquisition of businesses | | [***] | ||||
Debt, current portion | | [***] | ||||
Income and non-income taxes payable | | [***] | ||||
Deferred revenue | | [***] | ||||
Bank deposits and liabilities | | [***] | ||||
Total current liabilities | | [***] | ||||
Debt, non-current portion | | [***] | ||||
Deferred tax liabilities | | [***] | ||||
Operating lease liabilities | | [***] | ||||
Finance lease liabilities | | [***] | ||||
Bank deposits and liabilities | | [***] | ||||
Other accrued liabilities, including | | [***] | ||||
Other accrued tax liabilities | | [***] | ||||
Other accrued liabilities | | [***] | ||||
Total non-current liabilities | | [***] | ||||
Due to group companies | | [***] | ||||
Total liabilities | | [***] | ||||
Commitments and contingencies | | | ||||
Total shareholders' equity | | [***] | ||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | | [***] | ||||
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General procedures
Procedure 1: obtain the information as set out in Appendix 2 to the Contract and Appendix 2 to the Report.
Procedure 2: compare the list of TP companies to the list of companies included into the TP Group consolidation table as of December 31, 2022, and as of September 30, 2023.
Procedure 3: compare the list of EP companies to the list of companies included into the EP Group consolidation table as of December 31, 2022, and as of September 30, 2023.
Procedure 4: in respect of each discrepancy identified as a result of performing Procedures 2 and 3 perform inquiry of Head of Corporate reporting and financial control division of [***] regarding the nature of the discrepancy identified.
Math accuracy and completeness check of TP Group combined balance sheet as of December 31, 2022
Procedure 5.1: sum up the amount for respective line item from TP companies' stand-alone balance sheets as of December 31, 2022 with US GAAP adjustments for this line item from the TP Group consolidation table as of December 31, 2022 and agree the resulting total to the amount for this line item in the TP Group combined balance sheet as of December 31, 2022.
Procedure 5.2: sum up the amount for respective line item from EP companies' stand-alone balance sheets as of December 31, 2022 with US GAAP adjustments for this line item from the EP Group consolidation table as of December 31, 2022 and agree the resulting total to the amount for this line item in the EP Group combined balance sheet as of December 31, 2022.
Procedure 5.3: sum up the amount for respective line item from the TP Group balance sheet as of December 31, 2022, the EP Group balance sheets as of December 31, 2022 and amount of US GAAP adjustments from the Group consolidation table for this line and agree the resulting total to the amount for this line item in the Group balance sheet as of December 31, 2022.
Math accuracy and completeness check of TP Group combined balance sheet as of September 30, 2023
Procedure 6.1: sum up the amount for respective line item from TP companies' stand-alone balance sheets as of September 30, 2023 with US GAAP adjustments for this line item from the TP Group consolidation table as of September 30, 2023 and agree the resulting total to the amount for this line item in the TP Group combined balance sheet as of September 30, 2023.
Procedure 6.2: sum up the amount for respective line item from EP companies' stand-alone balance sheets as of September 30, 2023 with US GAAP adjustments for this line item from the EP Group consolidation table as of September 30, 2023 and agree the resulting total to the amount for this line item in the EP Group combined balance sheet as of September 30, 2023.
Procedure 6.3: sum up the amount for respective line item from the TP Group combined balance sheet as of September 30, 2023, the EP Group combined balance sheets as of September 30, 2023
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and amount of US GAAP adjustments from the Group consolidation table as of September 30, 2023 for this line and agree the resulting total to the amount for this line item in the Group balance sheet as of September 30, 2023.
Cash and cash equivalents
Procedure 7.1: compare the total of Cash detailed listing and the total of Deposits detailed listing for [***] to the amount per line "Cash and cash equivalents" for respective companies in the TP Group consolidation table as of September 30, 2023.
Procedure 7.2: agree the amounts of cash balances as of September 30, 2023 as per bank statements to the amount of cash balances for respective banks accounts in the Cash detailed listing of [***].
Procedure 7.3: agree the amounts of deposits balances as of September 30, 2023 as per deposit application form to the amount of deposits balances for respective banks accounts in the Deposits detailed listing of [***].
Procedure 7.4: sum up the total of Cash detailed listing and the total of Deposits detailed listing for all EP companies and compare it to the amount per line "Cash and cash equivalents" for respective companies in the EP Group consolidation table as of September 30, 2023.
Procedure 7.5: agree the amounts of cash balances as of September 30, 2023 as per bank statements to the amount of cash balances for respective banks accounts in the Cash detailed listing for all EP companies.
Procedure 7.6: agree the amounts of deposits balances as of September 30, 2023 as per deposit application form to the amount of deposits balances for respective banks accounts in the Deposits detailed listing for all EP companies.
Procedure 7.7: in respect of each individual difference of RUB [***] or above identified as a result of performing Procedures 7.1 - 7.6 perform the additional procedures (a) – (b):
| a) | inquire Head of Corporate reporting and financial control division of [***] of the respective company regarding the nature of the difference identified and obtain a breakdown of difference by transactions, |
| b) | For all transactions from point a) above, compare the amount of the transaction to the amount from supporting documents, provided by the Client. |
Accounts receivable
Procedure 8: compare the total of Accounts receivable detailed listing for [***] together with the adjustments to the amount per line "Accounts receivable" for respective companies in the TP Group consolidation table as of September 30, 2023. Specify the cumulative difference for the indicated companies if it is above RUB [***].
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Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Inventory
Procedure 9.1: compare the total of Inventory detailed listing for [***] from [***] together with the adjustments to the amount per line "Inventory" for [***] in the TP Group consolidation table as of September 30, 2023. Specify the difference if it is above RUB [***] in total.
Procedure 9.2: compare the total of Inventory detailed listing for [***] from [***] together with the adjustments to the amount per line "Inventory" for [***] in the TP Group consolidation table as of September 30, 2023. Specify the difference if it is above RUB [***] in total.
Prepaid expenses
Procedure 10: compare the total of Prepaid expenses detailed listing for [***]together with the adjustments to the amount per line "Prepaid expenses" for respective companies in the TP Group consolidation table as of September 30, 2023. Specify the cumulative difference for the indicated companies if it is above RUB [***].
Procedure 11: sum up the total of Fixed assets register, the total of Finance lease register, the total of Assets not yet in use register and the total of Prepaid property and equipment detailed listing for [***] and compare to the amount per line "Property, plant and equipment" for respective companies in the TP consolidation table as of September 30, 2023. Specify the cumulative difference for the indicated companies if it is above RUB [***].
Operating lease right-of-use assets
Procedure 12: compare the total of Operating lease right-of-use assets register for [***] to the amount per line "Operating lease right-of-use assets" for respective companies in the TP consolidation table as of September 30, 2023. Specify the cumulative difference for the indicated companies if it is above RUB [***].
Intangible assets
Procedure 13: compare the total of Intangible assets detailed listing for [***] to the amount per line "Intangible assets" respective companies in the TP consolidation table as of September 30, 2023. Specify the cumulative difference for the indicated companies if it is above RUB [***].
Debt
Procedure 14.1: sum up the amount per line "Debt, current portion" and "Debt, non-current portion" for [***] in the TP Group consolidation table as of September 30, 2023 and compare to the sum of total of Loans payable detailed listing and total of Liabilities under the reverse factoring program (within debt) detailed listing for [***].
Procedure 14.2: agree the amounts of loans payable balances as of September 30, 2023 as per bank statement to the amount of loans payable balances for respective loan agreements in the Loans payable detailed listing of [***].
Procedure 14.3: agree the amounts of liabilities under the reverse factoring program balances as of September 30, 2023 for [***] as per factoring agent report to the amount of liabilities under the
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reverse factoring program for respective agreements as per Liabilities under the reverse factoring program balances (within debt) detailed listing.
Accounts payable, accrued and other liabilities
Procedure 15.1: compare the total of Accounts payable, accrued and other liabilities breakdown to the amount in line item "Accounts payable, accrued and other liabilities" in TP Group combined balance sheet as of September 30, 2023.
Procedure 15.2: compare each line item in the Accounts payable, accrued and other liabilities breakdown to respective line item in the TP Group consolidation table as of September 30, 2023.
Procedure 15.3: compare the total of Trade accounts payable for services detailed listing for [***] together with the adjustments to the amount per line "Trade accounts payable for services" for respective companies in the TP Group consolidation table as of September 30, 2023. Specify the difference if it is above RUB [***] in total.
Procedure 15.4: compare the total of Liabilities under the reverse factoring program (within account payables) detailed listing to the amount per line "Liabilities under the reverse factoring program" in the TP Group consolidation table as of September 30, 2023 for [***].
Procedure 15.5: agree the amounts of liabilities under the reverse factoring program balances as of September 30, 2023 as per factoring agent report to the amount of liabilities under the reverse factoring program for respective agreements as per Liabilities under the reverse factoring program (within account payables) detailed listing for [***].
Other accrued liabilities
Procedure 16.1: compare the total of Other accrued liabilities breakdown to the line item "Other accrued liabilities" (within non-current liabilities) of TP Group combined balance sheet as of September 30, 2023.
Procedure 16.2: compare each line item in the Other accrued liabilities breakdown to respective line item in the TP Group consolidation table as of September 30, 2023.
Procedure 16.3: compare the total of Tax risk register together with the adjustments for TP companies to the line item "Other accrued tax liabilities" in the Other accrued liabilities breakdown. Specify the difference if it is above RUB [***] in total.
Intragroup balances
Procedure 17: compare the amount per line item "Due from Group companies" in the TP consolidation table to the total of Intragroup detailed listing with US GAAP adjustments. Specify the cumulative difference for the indicated companies if it is above RUB [***].
Appendix No. 1 − Information provided
The following information has been provided by the management of the Client:
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| a) | List of Yandex N.V. subsidiaries included into "Excluded Perimeter" category (hereinafter – the "EP companies"). |
| b) | List of Yandex N.V. subsidiaries included into "Target Perimeter" category (hereinafter – the "TP companies"). |
| c) | The Yandex N.V. and its subsidiaries consolidated balance sheet as of December 31, 2022 prepared based on US GAAP recognition and measurement principles consistent with the Group's US GAAP accounting policies (hereinafter – the "Group balance sheet as of December 31, 2022"). |
| d) | The Yandex N.V. and its subsidiaries consolidated balance sheet as of September 30, 2023 prepared based on US GAAP recognition and measurement principles consistent with the Group's US GAAP accounting policies, which were used to prepare US GAAP consolidated financial statements for 2022 (hereinafter – the "Group balance sheet as of September 30, 2023"). |
| e) | The EP companies combined balance sheet (hereinafter – the "EP Group combined balance sheet") as of December 31, 2022 and as of September 30, 2023 prepared based on US GAAP recognition and measurement principles consistent with the Group's US GAAP accounting policies, which were used to prepare US GAAP consolidated financial statements for 2022. |
| f) | The TP companies combined balance sheet September 30, (hereinafter – the "TP Group combined balance sheet") as of December 31, 2022 and as of September 30, 2023 prepared based on US GAAP recognition and measurement principles consistent with the Group's US GAAP accounting policies, which were used to prepare US GAAP consolidated financial statements for 2022. |
| g) | A table which shows the consolidation of TP companies' stand-alone balance sheets into the TP Group combined balance sheet detailing US GAAP adjustments for each financial statement line item (hereinafter – the "TP Group consolidation table") as of December 31, 2022 and as of September 30, 2023. |
| h) | A table which shows the consolidation of EP companies' stand-alone balance sheets into the EP Group combined balance sheet detailing US GAAP adjustments for each financial statement line item (hereinafter – the "EP Group consolidation table") as of December 31, 2022 and as of September 30, 2023. |
| i) | A table which shows the consolidation of the TP Group combined balance sheet and the EP Group combined balance sheet into US GAAP consolidated balance sheet detailing US GAAP adjustments for each financial statement line item (hereinafter – the "Group consolidation table") as of December 31, 2022 and as of September 30, 2023. |
| j) | A detailed listing of cash balances by type, bank and currency as of September 30, 2023 (hereinafter – the "Cash detailed listing") for [***] and EP companies. |
| k) | A detailed listing of deposit balances with maturity less than [3] months by bank and currency as of September 30, 2023 (hereinafter – the "Deposits detailed listing") for [***] and EP companies. |
| l) | Bank statements for cash balances for [***] and EP companies as of September 30, 2023. |
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| m) | Deposit application form for deposit balances with maturity less than [***] months where [***] and EP companies had accounts as of September 30, 2023. |
| n) | A detailed listing of trade and other receivables balances (within current assets) by counterparty as of September 30, 2023 (hereinafter – the "Receivables detailed listing") for [***]. |
| o) | A detailed listing of prepaid expenses balances (within current assets) by counterparty as of September 30, 2023 (hereinafter – the "Prepaid expenses detailed listing") for [***]. |
| p) | A detailed listing of inventory balances by inventory items as of September 30, 2023 (hereinafter – the "Inventory detailed listing") for [***]. |
| q) | A fixed asset register by types and items as of September 30, 2023 (hereinafter – the "Fixed assets register") for [***]. |
| r) | An asset not yet in use register by initial purchase order and counterparty as of September 30, 2023 (hereinafter – the "Assets not yet in use register") for [***]. |
| s) | A detailed listing of prepaid property and equipment balances by counterparty as of September 30, 2023 (hereinafter – the "Prepaid property and equipment detailed listing") for [***]. |
| t) | A finance lease contracts register by lessor and leased asset as of September 30, 2023 (hereinafter – the "Finance lease register") for [***]. |
| u) | An operating lease right-of-use assets register by lessor and leased asset as of September 30, 2023 (hereinafter – the "Operating lease right-of-use assets register") for [***]. |
| v) | An intangible asset register by types and items as of September 30, 2023 (hereinafter – the "Intangible assets register") for [***]. |
| w) | A detailed listing of loans payable by lender and loan agreement as of September 30, 2023 (hereinafter – the "Loans payable detailed listing") for [***]. |
| x) | Bank statements on loan agreements balance where [***] had balances as of September 30, 2023. |
| y) | A detailed listing of liabilities under the reverse factoring program presented within "Debt" line item in the TP Group combined balance sheet by agreement as of September 30, 2023 (hereinafter – the "Liabilities under the reverse factoring program (within debt) detailed listing") for [***]. |
| z) | Factoring agent report for reverse factoring program for all banks, where [***] had outstanding balance as of September 30, 2023. |
| aa) | A breakdown of line item "Accounts payable, accrued and other liabilities" from TP Group combined balance sheet by nature as of September 30, 2023 (hereinafter – the "Accounts payable, accrued and other liabilities breakdown"). |
| bb) | A detailed listing of trade payables for services balances by counterparty as of September 30, 2023 (hereinafter – the "Payables detailed listing") for [***]. |
104
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
| cc) | A detailed listing of liabilities under the reverse factoring program presented within "Accounts payable, accrued and other liabilities" line item in the TP Group combined balance sheet by agreement as of September 30, 2023 (hereinafter – the "Liabilities under the reverse factoring program (within accounts payable) detailed listing") for [***]. |
| dd) | A breakdown of line item "Other accrued liabilities" within non-current liabilities of TP Group combined balance sheet by nature as of September 30, 2023 (hereinafter – the "Other accrued liabilities breakdown"). |
| ee) | A tax risks register by company, type of tax and risk level as of September 30, 2023 (hereinafter – the "Tax risk register"). |
| ff) | A detailed listing of receivables and payables between the EP companies and the TP companies as of September 30, 2023 (hereinafter – the "Intragroup balances detailed listing"). |
105
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
PART A
First Completion First Notice
To: Yandex N.V.,
Schiphol Boulevard 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx (the "Seller")
Reference is made to the Share Purchase Agreement between the Seller and JSC Solid Management, Trust Manager ("Д.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" (the "Purchaser") dated [●] (the "SPA").
In accordance with clause 6.2 of the SPA, the Purchaser hereby notifies the Seller of: (i) the number of the First Tranche Exchange NV Shares to be exchanged at First Completion; (ii) the total number of the First Tranche Total Ordinary Company Shares to be acquired at First Completion; and (iii) the calculation of the First Tranche Pre-Conversion Payment. The respective numbers and calculations are set out in the table below:
# | Line Item | Units | Source/Formula | Value |
|
|
|
|
|
I – To be transferred by the Purchaser to the Seller | ||||
| | | | |
1 | First Tranche Exchange NV Shares | Seller Shares | Purchaser | [●] |
2 | NV Share Price | RUB / Share | [***] ₽ | |
3 | First Tranche NV Shares Payment | RUB | Formula: [1] x [2] | [●] ₽ |
| | | | |
4 | Preference Share A Purchase Price | RUB | [***] ₽ | |
| | | | |
5 | First Tranche Sale Ordinary Shares | Company Shares | [***] | |
6 | Price per Ordinary Share | RUB/Company Share | [***] ₽ | |
7 | Base First Tranche Payment | RUB | Formula: [5] x [6] | [***] ₽ |
| | | | |
8 | FCALA #1: Upstream Reserve | RUB | [***] ₽ | |
9 | FCALA #2: Complete Target Group Advisory Expenses | RUB | [***] ₽ | |
10 | FCALA #3: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
11 | Aggregate FCALA | RUB | Formula: [8] + [9] + [10] | [●] ₽ |
| | | | |
106
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
12 | First Tranche Pre-Conversion Payment | RUB | Formula: [4] + [7] - [11] | [●] ₽ |
| | | | |
II – To be transferred by the Seller to the Purchaser | ||||
| | | | |
13 | First Tranche Exchange Ordinary Shares | Company Shares | Formula: [1] | [●] |
14 | First Tranche Sale Ordinary Shares | Company Shares | Formula: [5] | [***] |
15 | First Tranche Total Ordinary Company Shares | Company Shares | Formula: [13] + [14] | [●] |
| | | | |
16 | Preference Share A | Company Shares | [***] | |
17 | First Tranche Sale Shares | Company Shares | Formula: [15] + [16] | [●] |
According to the table above, [●] First Tranche Exchange NV Shares will be transferred to the Purchaser at First Completion. Pursuant to clause [●] of the SPA, the total value of the First Tranche Exchange NV Shares shall be equal to First Tranche NV Shares Payment or [●].
Terms used but not defined herein shall have the meanings ascribed to them in the SPA.
Signed by | ) | |
_______________________________ | )) | |
xxxx authorised for and on behalf of | ) | |
JSC SOLID MANAGEMENT | ) | ……………………………..………… |
Trust Manager ("X.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" | ) | Authorised Signatory |
107
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
PART B
Second Completion First Notice
To: Yandex N.V.,
Schiphol Boulevard 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx (the "Seller")
Reference is made to the Share Purchase Agreement between the Seller and JSC Solid Management, Trust Manager ("Д.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" (the "Purchaser") dated [●] (the "SPA").
In accordance with clause 7.2 of the SPA, the Purchaser hereby notifies the Seller of: (i) the number of the Second Tranche Exchange NV Shares to be exchanged at Second Completion; (ii) the total number of the Second Tranche Total Ordinary Company Shares to be acquired at Second Completion; and (iii) the calculation of the Second Tranche Pre-Conversion Payment. The respective numbers and calculations are set out in the table below:
# | Line Item | Units | Source/Formula | Value |
|
|
|
|
|
I – To be transferred by the Seller to the Purchaser | ||||
| | | | |
1 | Ordinary Shares Outstanding | Company Shares | Share Purchase Agreement | [***] |
2 | Pre-Completion Sale Shares | Company Shares | Share Purchase Agreement | [***] |
3 | First Tranche Total Ordinary Company Shares | Company Shares | First Completion Notice | [●] |
| | | | |
4 | Second Tranche Total Ordinary Company Shares | Company Shares | Formula: [1] - [2] - [3] | [●] |
5 | Price per Ordinary Share | RUB / Share | Share Purchase Agreement | [***] ₽ |
6 | Second Tranche Purchase Price | RUB | Formula: [4] x [5] | [●] ₽ |
| | | | |
II – To be transferred by the Purchaser to the Seller | ||||
| | | | |
7 | Second Tranche Exchange NV Shares | Seller Shares | Purchaser | [●] |
8 | NV Share Price | RUB / Share | Share Purchase Agreement | [***] ₽ |
9 | Second Tranche NV Shares Payment | RUB | Formula: [7] x [8] | [●] ₽ |
| | | | |
10 | Base Second Tranche Payment | RUB | Formula: [6] - [9] | [●] ₽ |
| | | | |
11 | SCALA #1: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
12 | SCALA #2: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
108
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
13 | SCALA #3: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
14 | Aggregate SCALA | RUB | Formula: [11] + [12] + [13] | [●] ₽ |
| | | | |
15 | Second Tranche Pre-Conversion Payment | RUB | Formula: [10] - [14] | [●] ₽ |
According to the table above, up to [●] Second Tranche Exchange NV Shares will be transferred to the Purchaser at Second Completion. Pursuant to clause [●] of the SPA, the total value of the Exchange NV Shares shall be equal to Second Tranche NV Shares Payment or [●].
Terms used but not defined herein shall have the meanings ascribed to them in the SPA.
Signed by | ) | |
_______________________________ | ) | |
duly authorised for and on behalf of | ) | |
JSC SOLID MANAGEMENT | ) | ……………………………..………… |
Trust Manager ("X.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" | ) | Authorised Signatory |
109
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
PART C
First Completion Second Notice
To: Yandex N.V.,
Schiphol Boulevard 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx (the "Seller")
Reference is made to the Share Purchase Agreement between the Seller and JSC Solid Management, Trust Manager ("Д.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" (the "Purchaser") dated [●] (the "SPA").
In accordance with clause 6.2 of the SPA, the Purchaser hereby notifies the Seller of: (i) the number of the First Tranche Exchange NV Shares to be exchanged at First Completion; (ii) the total number of the First Tranche Total Ordinary Company Shares to be acquired at First Completion; and (iii) the calculation of the First Tranche Payment. The respective numbers and calculations are set out in the table below:
# | Line Item | Units | Source/Formula | Value |
|
|
|
|
|
I – To be transferred by the Purchaser to the Seller | ||||
| | | | |
1 | First Tranche Exchange NV Shares | Seller Shares | Purchaser | [●] |
2 | NV Share Price | RUB / Share | Share Purchase Agreement | [***] ₽ |
3 | First Tranche NV Shares Payment | RUB | Formula: [1] x [2] | [●] ₽ |
| | | | |
4 | Preference Share A Purchase Price | RUB | Share Purchase Agreement | [***] ₽ |
| | | | |
5 | First Tranche Sale Ordinary Shares | Company Shares | Share Purchase Agreement | [***] |
6 | Price per Ordinary Share | RUB/Company Share | Share Purchase Agreement | [***] ₽ |
7 | Base First Tranche Payment | RUB | Formula: [5] x [6] | [***] ₽ |
| | | | |
8 | FCALA #1: Upstream Reserve | RUB | Purchaser (pre-agreed with Seller) | [***] ₽ |
9 | FCALA #2: Complete Target Group Advisory Expenses | RUB | Purchaser (pre-agreed with Seller) | [***] ₽ |
10 | FCALA #3: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
11 | Aggregate FCALA | RUB | Formula: [8] + [9] + [10] | [●] ₽ |
| | | | |
12 | First Tranche Pre-Conversion Payment | RUB | Formula: [4] + [7] - [11] | [●] ₽ |
13 | Relevant Date | Date | Purchaser | [●] |
110
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
14 | Conversion Rate | CNH / RUB | Purchaser in accordance with Clause 1.3 of the Share Purchase Agreement | [●] ₽ |
15 | Adjusted Conversion Rate | CNH / RUB | Purchaser in accordance with Clause 3.2 of the Share Purchase Agreement | [●] ₽ |
16 | First Tranche Payment | CNH | Formula: [12] / [15] | ¥ [●] |
| | | | |
II – To be transferred by the Seller to the Purchaser | ||||
| | | | |
17 | First Tranche Exchange Ordinary Shares | Company Shares | Formula: [1] | [●] |
18 | First Tranche Sale Ordinary Shares | Company Shares | Formula: [5] | [***] |
19 | First Tranche Total Ordinary Company Shares | Company Shares | Formula: [17] + [18] | [●] |
| | | | |
20 | Preference Share A | Company Shares | Share Purchase Agreement | [***] |
21 | First Tranche Sale Shares | Company Shares | Formula: [19] + [20] | [●] |
According to the table above, [●] First Tranche Exchange NV Shares will be transferred to the Purchaser at First Completion. Pursuant to clause [●] of the SPA, the total value of the First Tranche Exchange NV Shares shall be equal to First Tranche NV Shares Payment or [●].
Terms used but not defined herein shall have the meanings ascribed to them in the SPA.
Signed by | ) | |
_______________________________ | )) | |
xxxx authorised for and on behalf of | ) | |
JSC SOLID MANAGEMENT | ) | ……………………………..………… |
Trust Manager ("X.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" | ) | Authorised Signatory |
111
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
PART D
Second Completion Second Notice
To: Yandex N.V.,
Schiphol Boulevard 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx (the "Seller")
Reference is made to the Share Purchase Agreement between the Seller and JSC Solid Management, Trust Manager ("Д.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" (the "Purchaser") dated [●] (the "SPA").
In accordance with clause 7.2 of the SPA, the Purchaser hereby notifies the Seller of: (i) the number of the Second Tranche Exchange NV Shares to be exchanged at Second Completion; (ii) the total number of the Second Tranche Total Ordinary Company Shares to be acquired at Second Completion; and (iii) the calculation of the Second Tranche Payment. The respective numbers and calculations are set out in the table below:
# | Line Item | Units | Source/Formula | Value |
|
|
|
|
|
I – To be transferred by the Seller to the Purchaser | ||||
| | | | |
1 | Ordinary Shares Outstanding | Company Shares | Share Purchase Agreement | [***] |
2 | Pre-Completion Sale Shares | Company Shares | Share Purchase Agreement | [***] |
3 | First Tranche Total Ordinary Company Shares | Company Shares | First Completion Notice | [●] |
| | | | |
4 | Second Tranche Total Ordinary Company Shares | Company Shares | Formula: [1] - [2] - [3] | [●] |
5 | Price per Ordinary Share | RUB / Share | Share Purchase Agreement | [***] ₽ |
6 | Second Tranche Purchase Price | RUB | Formula: [4] x [5] | [●] ₽ |
| | | | |
II – To be transferred by the Purchaser to the Seller | ||||
| | | | |
7 | Second Tranche Exchange NV Shares | Seller Shares | Purchaser | [●] |
8 | NV Share Price | RUB / Share | Share Purchase Agreement | [***] ₽ |
9 | Second Tranche NV Shares Payment | RUB | Formula: [7] x [8] | [●] ₽ |
| | | | |
10 | Base Second Tranche Payment | RUB | Formula: [6] - [9] | [●] ₽ |
| | | | |
11 | SCALA #1: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
12 | SCALA #2: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
112
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
13 | SCALA #3: TBD | RUB | Purchaser (pre-agreed with Seller) | [●] ₽ |
14 | Aggregate SCALA | RUB | Formula: [11] + [12] + [13] | [●] ₽ |
| | | | |
15 | Second Tranche Pre-Conversion Payment | RUB | Formula: [10] - [14] | [●] ₽ |
16 | Relevant Date | Date | Purchaser | [●] |
17 | Conversion Rate | CNH / RUB | Purchaser in accordance with Clause 1.3 of the Share Purchase Agreement | [●] ₽ |
18 | Adjusted Conversion Rate | CNH / RUB | Purchaser in accordance with Clause 3.2 of the Share Purchase Agreement | [●] ₽ |
19 | Second Tranche Payment | CNH | Formula: [15] / [18] | ¥ [●] |
According to the table above, up to [●] Second Tranche Exchange NV Shares will be transferred to the Purchaser at Second Completion. Pursuant to clause [●] of the SPA, the total value of the Exchange NV Shares shall be equal to Second Tranche NV Shares Payment or [●].
Terms used but not defined herein shall have the meanings ascribed to them in the SPA.
Signed by | ) | |
_______________________________ | ) | |
duly authorised for and on behalf of | ) | |
JSC SOLID MANAGEMENT | ) | ……………………………..………… |
Trust Manager ("X.У.") for Closed-end Mutual Investment Combined Fund "Consortium. First" | ) | Authorised Signatory |
113
EU1/ 502543630.3
Information in this exhibit identified by [***] is confidential and has been excluded pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.
Signed by | ) | |
[***] | )) | |
duly authorised for and on behalf of | ) | |
JSC SOLID MANAGEMENT | ) | /s/ [***] |
) | Authorised Signatory |
Signed by | ) | |
[***] | )) | |
duly authorised for and on behalf of | ) | |
YANDEX N.V. | ) | /s/ [***] |
| ) | Authorised Signatory |
114
EU1/ 502543630.3
