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.
(1) UBER Technologies, Inc.
and
(2) Uber NL Holdings 1 B.V.
and
(3) Uber NL Holdings 2 B.V.
and
(4) YANDEX N.V.
Xxxxxx, Xxxxx & Xxxxxxx UK LLP
Condor House
0-00 Xx Xxxx’x Xxxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
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.
TABLE OF CONTENTS
PAGE
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 FRAMEWORK AGREEMENT (this “Agreement”) is made and entered into as of 30 August 2021:
BETWEEN:
(1) | UBER Technologies, Inc. whose registered office is at 0000 0xx Xx., Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (“Uber”); |
(2) | Uber NL Holdings 1 B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) formed under the laws of the Netherlands, having its corporate seat at Amsterdam, its registered office at Mr. Xxxxxxxxx 0, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, and registered with the trade register of the Chamber of Commerce under number 73338893) (“NL1”); |
(3) | Uber NL Holdings 2 B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) formed under the laws of the Netherlands, having its corporate seat at Amsterdam, its registered office at Mr. Xxxxxxxxx 0, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, and registered with the trade register of the Chamber of Commerce under number 73666475 (“NL2”, together with NL1 the “Sellers”); and |
(4) | Yandex N.V., a public limited liability 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 Schiphol, the Netherlands and registered with the trade register of the Chamber of Commerce under number 27265167 (“Yandex”), |
(each a “Party” and together the “Parties”).
RECITALS:
(Capitalised terms used in these Recitals that are not set out above are defined in Clause 1.1 below).
(A) | WHEREAS, MLU B.V. (“MLU”), Yandex, Stichting MLU Equity Incentive and Uber International C.V. (“Uber International”) entered into a shareholders agreement in respect of MLU dated 7 February 2018 (as amended and restated on 9 September 2020) (the “MLU SHA”); |
(B) | WHEREAS, Yandex, Stichting SDG Equity Incentive and Uber International entered into a shareholders agreement in respect of Yandex Self Driving Group B.V. (“SDG”), dated 9 September 2020 (the “SDG SHA”); |
(C) | WHEREAS, NL1 holds the legal title to seven million eight hundred eighty-five thousand eight hundred ninety-four (7,885,894) class B ordinary shares of MLU, numbered B12,880,252 up to and including B20,766,145, and six million two hundred fifty-one thousand nine hundred eighty-two (6,251,982) class A ordinary shares of SDG, numbered A4,272,699 up to and including A10,524,680, and holds (i) 0.49% of the economic title to one (1) class B ordinary share of MLU, numbered B12,880,252, and (ii) 0.33% of the economic title to one (1) class A ordinary share of SDG, numbered A4,272,699, for the benefit and account of NL2, and intends to deal with those shares pursuant to the terms of this Agreement (the “NL1 MLU Shares” and the “NL1 SDG Shares” respectively); |
1
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) | WHEREAS, NL2 holds the legal title to seventy-nine thousand six hundred fifty-five (79,655) class B ordinary shares of MLU, numbered B12,800,597 up to and including B12,880,251 and sixty-three thousand one hundred fifty-one (63,151) class A ordinary shares of SDG, numbered A4,209,548 up to and including A4,272,698, and holds (i) 0.49% of the economic title to one (1) class B ordinary share of MLU, numbered B12,880,252, and (ii) 0.33% of the economic title to one (1) class A ordinary share of SDG, numbered A4,272,699,and intends to deal with those shares pursuant to the terms of this Agreement (the “NL2 MLU Shares” and the “NL2 SDG Shares” respectively); |
(E) | WHEREAS, the Parties have agreed that NL1 and NL2 will sell all of their respective shares in SDG to Yandex; |
(F) | WHEREAS, the Parties have agreed that NL1 will sell nine hundred ninety-one thousand one hundred fifty-seven (991,157) NL1 MLU Shares and NL2 will sell seventy-nine thousand six hundred fifty-five (79,655) NL2 MLU Shares to Yandex; (constituting, in the case of NL2, all of the MLU Shares owned by NL2 as of the Initial Closing); |
(G) | WHEREAS, the Parties have agreed that MLU will pursue and give effect to the Demerger and that NL1 will sell all of its shares in Demerger Newco to Yandex; |
(H) | WHEREAS, the Parties have agreed that NL1 will grant Yandex an option to acquire all of their remaining shares in MLU; |
(I) | WHEREAS, in addition to this Agreement, the Parties have further agreed to enter into the other Transaction Agreements as an integral part of and in order to further the transactions contemplated hereby; and |
(J) | WHEREAS, in consideration of the mutual promises, agreements, warranties and provisions contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Parties have agreed the following. |
| 1. | INTERPRETATION |
| 1.1 | In this Agreement the following words and expressions have the following meanings: |
“Additional Shares” | has the meaning given in Clause 8.3(c); |
“Affiliate” | means, in relation to any person, any other person directly or indirectly Controlled by, Controlling, or under common Control with, that person; |
“Amended Deed of Covenant” | means the amended and restated deed of covenant between Yandex, Uber and MLU (amongst others) in relation to MLU and the Demerged Businesses in the agreed form; |
“Amended MLU SHA” | means the amended MLU SHA among Yandex, NL1, Stichting MLU Equity Incentive and MLU following the execution and delivery of (i) the Deed of SHA Novation and (ii) the Deed of SHA Amendment; |
2
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
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.
“Contract” | means any legally binding agreement, contract, subcontract, lease, instrument, note, option, warranty, purchase order, license, sublicense, mortgage, guarantee, purchase order, insurance policy, commitment or undertaking; |
“Control” | of a given person means the power or authority, whether exercised or not, to direct the business, management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the voting of more than [***]% of the votes entitled to be cast at a meeting of the members or shareholders of such person or power to control the composition of a majority of board of directors of such person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing; |
“Deed of SHA Amendment” | means the deed of amendment in relation to the MLU SHA to be delivered at the Initial Closing; |
“Deed of SHA Novation” | means the deed of novation by which Uber International C.V. will novate its rights and obligations under the MLU SHA to NL1 to be delivered to the Notary at the Initial Closing; |
“Deed of Termination” | means the deed of termination in relation to the SDG SHA in the agreed form; |
“Demerged Businesses” | means the Lavka Business, the Eats Business and the Logistics Business; |
“Demerged Entities” | means the Demerger Newco and the other entities to be incorporated to hold the Demerged Businesses from the Effective Time; |
“Demerger” | the demerger of the Lavka Business, the Eats Business and the Logistics Business as described in the Demerger Step Plan; |
“Demerger Cash Consideration” | has the meaning given in Clause 4.1(b); |
“Demerger Cash Consideration SWIFT Confirmation” | has the meaning given in Clause 7.4; |
“Demerger Closing” | means the completion of the final legal step of the Demerger, which is to occur by execution of the demerger Notarial Deed; |
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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.
“Demerger Newco” | a newly incorporated Dutch entity established for the purpose described in Clause 6.1 to be held at the Effective Time by NL1, Yandex and Stichting MLU Equity Incentive pro rata to their shareholdings in MLU at the moment of the execution of the Notarial Demerger Deed; |
“Demerger Shares” | means the shares in Demerger Newco to be issued to NL1 in connection with the Demerger; |
“Demerger Shares Closing” | has the meaning given in Clause 7.1; |
“Demerger Step Plan” | means the step plan to effect the Demerger as set out in Schedule 1; |
“Dispute” | has the meaning given in Clause 20.2; |
“Eats Business” | means the business of facilitating food ordering and delivery (including without limitation meal kits, restaurant prepared food and other prepared meals) as conducted by MLU as at the Effective Time including all ancillary and related employees, assets and liabilities; |
“Effective Time” | means the date on which the Demerger has become fully effective under both Dutch law and Russian law; |
“Encumbrances” | means any option, charge (fixed or floating), mortgage, lien, pledge, equity, right to acquire, right of pre-emption, right of first refusal, title retention or any other security interest of any kind or any agreement to create any of the foregoing, or any other third party interest, equity, or right except for encumbrances that occur under this Agreement or relevant articles of association; |
“GAAP” | means U.S. generally accepted accounting principles; |
“Governmental Authority” | means any government or state and any ministry, department or political subdivision thereof, and any person exercising executive, judicial, regulatory or administrative functions of, or pertaining to, government (including any independent regulator) or any other governmental entity, instrumentality, agency, authority, corporation, committee or commission under the direct or indirect control of a government, and for the avoidance of doubt includes any court or competent authority or tribunal; |
“Indebtedness” | 1.2 means, without duplication, with respect to MLU and its Subsidiaries, the outstanding amount of (a) indebtedness for borrowed money (principal and interest), (b) amounts owing as deferred purchase price, contingent payments or earnout |
5
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.
payments for the purchase of any property, intellectual property rights, assets or business, (c) indebtedness evidenced by any bond, debenture, note, mortgage, indenture or other debt instrument or debt security (principal and interest), (d) obligations secured by any Encumbrances, (e) commitments or obligations to assure any person or entity against loss (including contingent reimbursement obligations under letters of credit), (f) any amounts owed to related parties that are unpaid, other than amounts due pursuant to any Intercompany Agreements, (g) guarantees with respect to any indebtedness or obligation of a type described in clauses (a) through (f) above of MLU or any of its Subsidiaries, or any other person or entity, and (h) any non-current liabilities reflected in the Post Demerger Balance Sheet (excluding deferred taxes and accrued tax liabilities), provided that “Indebtedness” shall exclude any items that are included as Current Liabilities in the final calculation of Post Demerger Working Capital); | |
“Initial Closing” | has the meaning given in Clause 5.1; |
“Initial Closing Cash Consideration” | has the meaning given in Clause 4.1(a); |
“Initial Closing Date” | means the date on which the Initial Closing shall occur; |
“Initial Closing SWIFT Confirmation” | has the meaning given in Clause 5.4; |
“Inter-Company Agreements” | means the intercompany agreements to be entered into or amended between MLU or its Subsidiaries, on the one hand, and Yandex and/or the Demerged Entities, or their respective Subsidiaries, on the other, in accordance with Clause 6.1, including without limitation the intercompany agreements described in Schedule B of the Demerger Step Plan and such intercompany agreements governing (among other things), overhead and G&A services, rents, engineering and R&D, shared services, uses of assets and users, leveraging third party contracts (including without limitation marketing agreements, payment and credit card processing), uses of IT systems, servers, and infrastructure, marketing services and compensation for participation in Plus program and corporate taxi services; |
“Lavka Business” | means the business of facilitating hyper-fast grocery delivery as conducted by MLU in Russia and Israel at the Effective Time including all ancillary and related employees, assets and liabilities; |
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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.
“Logistics Business” | means the business of facilitating logistics and deliveries as conducted by MLU as at the Effective Time including all ancillary and related employees, assets and liabilities; |
“Losses” | 1.3 means with respect to any person and in relation to any matter, all direct and (to the extent reasonably foreseeable at the date of this Agreement) indirect losses and damages resulting from such matter, including all reasonable and properly incurred out-of-pocket costs, fees or expenses of third party professional advisors, experts or consultants suffered or incurred by such person in successfully bringing any claim relating to such matter, or in disputing, defending, settling, investigating or providing evidence in connection with successfully establishing its right to bring such a claim (and including all Taxes), provided that “Losses” shall not include any losses or damages based on diminution in the value of the shares of capital stock of Yandex or Uber (except to the extent contemplated by Clause 12.4(b) or Clause 12.5); |
“Misallocated Assets Remedy” | has the meaning given in Clause 6.10; |
“MLU” | has the meaning given in Recital (A); |
“MLU Business” | means: (i) prior to the Effective Time, the Demerged Businesses and the Remaining Businesses; and (ii) after the Effective Time, the Remaining Businesses only; |
“MLU Option Shares” | means all shares owned by NL1 in MLU as at Call Option Closing; |
“MLU Sale Shares” | means nine hundred ninety-one thousand one hundred fifty-seven (991,157) NL1 MLU Shares and seventy-nine thousand six hundred fifty-five (79,655) NL2 MLU Shares, which together comprise 4.5% of the outstanding issued share capital of MLU as at Initial Closing; |
“MLU SHA” | means the shareholders’ agreement relating to MLU made among Uber International C.V., Yandex, Stichting MLU Equity Incentive and MLU dated 7 February 2018, as amended and restated on 9 September 2020; |
“MLU Shares” | means the NL1 MLU Shares and the NL2 MLU Shares; |
“NASDAQ” | means The Nasdaq Global Select Market (or its successor); |
“Net Cash” | means total unrestricted cash, cash equivalents and current term deposits of MLU and its Subsidiaries less |
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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.
Indebtedness, determined in each case as of immediately after the Effective Time; | |
“NL1 MLU Shares” | has the meaning given in Recital (C); |
“NL1 SDG Shares” | has the meaning given in Recital (C); |
“NL2 MLU Shares” | has the meaning given in Recital (D); |
“NL2 SDG Shares” | has the meaning given in Recital (D); |
“Notarial Demerger Deed” | means the notarial deed effecting the demerger of MLU in the agreed form; |
“Notarial Transfer Deed” | means a notarial deed of sale and transfer of the MLU Sale Shares, the SDG Sale Shares, the Demerger Shares or the MLU Option Shares, as the case may be, to be executed before the Notary; |
“Notary” | means a civil law notary of Van Doorne N.V.; |
“Post Demerger Working Capital” | has the meaning given in Schedule 5; |
“Prepayments” | means the prepayments referred to in Clauses 4.2(e) and 4.2(f); |
“Reimbursement Agreement” | means the agreement in respect of reimbursement by MLU of equity awards granted by Yandex to MLU employees (excluding employees of the Demerged Entities) in the agreed form; |
“Related Agreement” | means each Transaction Agreement other than this Agreement; |
“Relevant Days” | means the [***] Trading Days immediately preceding (but excluding) the date of Call Option Closing; |
“Remaining Businesses” | means the business of facilitating (i) ridesharing and (ii) car sharing, together in each case with all ancillary and related activity thereto as conducted by MLU as at the Effective Time; |
“Rules” | has the meaning given in Clause 20.2; |
“SDG” | means Yandex Self Driving Group B.V.; |
“SDG Business” | means the business of facilitating vehicular self-driving technology (including “rovers”) and all ancillary and related |
8
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.
activity thereto as conducted by SDG as at the Initial Closing; | |
“SDG Sale Shares” | means six million two hundred fifty-one thousand nine hundred eighty-two (6,251,982) NL1 SDG Shares and sixty-three thousand one hundred fifty-one (63,151) NL2 SDG Shares, being all of the shares owned by NL1 and NL2 in SDG as at Initial Closing; |
“SEC” | means the U.S. Securities and Exchange Commission; |
“Securities Act” | means the U.S. Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder; |
“Specified U.S. Tax Reporting Information” | means any information required in order to permit Uber or its Affiliates, or their respective Tax advisors, to (i) determine the status of MLU or SDG (or their Subsidiaries) as a “controlled foreign corporation” within the meaning of Section 957 of the Code, (ii) determine the status of MLU or SDG (or their Subsidiaries) as a “passive foreign investment company” within the meaning of Section 1297 of the Code, (iii) determine whether Uber (or any of its Affiliates) is required to include any amount of income on account of MLU or SDG (or their Subsidiaries) pursuant to Section 951, Section 951A, or Section 1293 of the Code, or (iv) to make or maintain a “qualified electing fund” election in accordance with Section 1295 of the Code, in each case whether such information relates to a period prior to or following the Initial Closing; |
“Subsidiary” | means, with respect to any party, any corporation or other organization or person, whether incorporated or unincorporated, of which (i) such party or any other subsidiary of such party is a general partner (excluding such partnerships where such party or any subsidiary of such party does not have a majority of the voting interest in such partnership) or (ii) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such party or by any one or more of its subsidiaries or Affiliates; |
“Target Cash” | has the meaning given in Clause 6.1(d); |
“Tax” or “Taxes” | means any federal, national, state, local or foreign net income, alternative or add-on minimum, estimated, gross income, gross receipts, sales, use, ad valorem, value added, |
9
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.
transfer, franchise, capital, profits, lease, service, fringe benefits, license, withholding, payroll, employment, social security, excise, severance, stamp, occupation, premium, property, environmental, windfall profit tax, registration, capital stock, social security (or similar), unemployment, disability, customs duty or other tax of any kind whatsoever, including any governmental fee or other like assessment or charge in the nature of a tax, and unclaimed property (which for the purposes of this Agreement shall be treated as Tax), together with all interest, penalties, additions to tax and additional amounts with respect thereto; | |
“Tax Authority” | means any Governmental Authority responsible for the imposition, administration, assessment, and/or collection of any Tax; |
“Tax Relevant Entity” | has the meaning given in Clause 12.7; |
“Trading Days” | means Business Days that are trading days on NASDAQ; |
“Transaction Agreements” | means this Agreement, the Deed of Amendment, the Deed of Termination, the Reimbursement Agreement, the Amended Deed of Covenant, the Deed of SHA Amendment, the Amended MLU SHA, the Amended Trademark License and the Inter-Company Agreements; |
“Transferred IP” | has the meaning given in Clause 6.1(e)(ii); |
“Uber Bank Account” | means: [***]; |
“Uber SDG Released Claims” | has the meaning given in Clause 11.3; |
“Uber MLU Released Claims” | has the meaning given in Clause 11.4; |
“U.S.” | means the United States of America; |
“VWAP” | means the volume-weighted average price calculated by reference to the relevant Bloomberg screen or if not applicable or available, any price published with respect to the relevant securities by NASDAQ; |
“Yandex Bank Account” | means: [***]; |
“Yandex Class A Shares” | means Class A ordinary shares of Yandex, nominal value €0.01 per share; |
10
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.
“Yandex Competitively Sensitive Information” | means any information that the chief executive officer or the chief legal officer of Yandex determines (in each case in good faith in his, her or its reasonable judgment) the disclosure of which to a competitor of Yandex may impair a competitive advantage or opportunity for such advantage, or result in or increase a competitive disadvantage, or otherwise prejudice the commercial interests, of Yandex, or any information otherwise considered to be competitively sensitive because it could influence the competitive behaviour of the recipient; |
“Yandex MLU Released Claims” | has the meaning given in Clause 12.3; and |
“Yandex SDG Released Claims” | has the meaning given in Clause 12.2. |
| 1.2 | In this Agreement: |
| (a) | any reference to this Agreement includes the Schedules to it, each of which forms part of this Agreement for all purposes; |
| (b) | references to this Agreement shall be construed as references also to any separate or independent stipulation or agreement contained in it; |
| (c) | the contents page and headings in this Agreement are for convenience only and shall not affect its interpretation; |
| (d) | references to any document (including this Agreement) or a provision of any document includes such document or provision thereof as amended or supplemented in accordance with its terms, and whether or not such other document or provisions thereof is or becomes ineffective for any reason; |
| (e) | references to any document in the “agreed form” shall be to documents agreed between Uber and Yandex; |
| (f) | a reference to an enactment or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment or statutory provision and is a reference to that enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, re-enacted or replaced, provided that, as between the Parties, no such amendment, consolidation, modification, re-enactment or replacement shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party; |
| (g) | words in the singular shall include the plural and vice versa, and references to one gender include other genders; |
| (h) | a reference to a person shall include a reference to any individual, firm, company or other body corporate, an individual’s executors or administrators, Governmental Authority, |
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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.
| unincorporated association, trust or partnership (whether or not having separate legal personality); |
| (i) | a reference to a Clause, paragraph, Schedule (other than to a schedule to a statutory provision) or Recital shall be a reference to a clause, paragraph, schedule or recital (as the case may be) of or to this Agreement; |
| (j) | 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; |
| (k) | references to any English, Dutch or Russian legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England, the Netherlands or Russia (as relevant) be deemed to include what most nearly approximates the English, Dutch or Russian legal term in that jurisdiction and references to any English, Dutch or Russian statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction; |
| (l) | words and expressions defined in the Companies Xxx 0000 shall bear the same meaning as in that Act, unless expressly provided otherwise; |
| (m) | references to writing shall include any modes of reproducing words in any legible form (but shall not include email unless expressly stated otherwise); |
| (n) | a reference to “USD”, “US$” “$” or “US Dollars” is to the lawful currency of the United States of America; |
| (o) | a reference to a payment to Uber or to the Uber Bank Account shall be at the direction of, and for the benefit of, the applicable Seller and in Uber’s capacity as agent of the applicable Seller; |
| (p) | except where the context otherwise requires, a reference to time or the time of any day is to Amsterdam 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.; and |
| (q) | references to fractional holdings of shares shall be rounded up to the nearest whole share. |
| 2. | SALE AND TRANSFER OF SDG SHARES |
| 2.1 | Subject to the terms and conditions of this Agreement, at the Initial Closing the Sellers shall sell and transfer the SDG Sale Shares as follows: |
| (a) | NL1 shall sell and transfer to Yandex all economic and legal title to the NL1 SDG Shares; and |
| (b) | NL2 shall sell and transfer to Yandex all economic and legal title to the NL2 SDG Shares. |
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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.
| 2.3 | The SDG Sale Shares shall be transferred with the rights, preferences, privileges and restrictions set forth in the articles of association of SDG and free and clear of all Encumbrances. |
| 2.4 | Uber shall procure compliance by NL1 and NL2 with this Clause 2. |
| 2.5 | Yandex shall not be obliged to complete the acquisition of any of the SDG Sale Shares unless the transfers of all SDG Sale Shares and MLU Sale Shares are practically completed simultaneously. |
| 2.6 | Each relevant Party shall procure that each person having any rights of pre-emption or right of first refusal (or any other rights, which may otherwise operate to restrict transfer) will take the rights into account which such person may have in relation to the SDG Sale Shares under the articles of association of SDG or the SDG SHA, as the case may be. |
| 3. | SALE AND TRANSFER OF MLU SALE SHARES |
| 3.1 | Subject to the terms and conditions of this Agreement, at the Initial Closing the Sellers shall sell and transfer the MLU Sale Shares as follows: |
| (a) | NL1 shall sell and transfer to Yandex all economic and legal title to the NL1 MLU Sale Shares; and |
| (b) | NL2 shall sell and transfer to Yandex all economic and legal title to the NL2 MLU Sale Shares. |
| 3.2 | Title to and beneficial ownership of the MLU Sale Shares shall pass to Yandex at the Initial Closing through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same. |
| 3.3 | The MLU Sale Shares shall be transferred with the rights, preferences, privileges and restrictions set forth in the articles of association of MLU and free and clear of all Encumbrances. |
| 3.4 | Uber shall procure compliance by NL1 and NL2 with this Clause 3. |
| 3.5 | Yandex shall not be obliged to complete the acquisition of any of the MLU Sale Shares unless the transfers of all MLU Sale Shares and SDG Sale Shares are practically completed simultaneously. |
| 3.6 | Each relevant Party shall procure that each person having any rights of pre-emption or right of first refusal (or any other rights, which may otherwise operate to restrict transfer) will take the rights into account which such person may have in relation to the MLU Sale Shares under the articles of association of MLU or MLU SHA, as the case may be. |
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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. | CONSIDERATION |
| (b) | the payment by Yandex to Uber or its designee of two hundred million US Dollars ($200,000,000) (the “Demerger Cash Consideration”) in accordance with Clause 7.3. |
| 4.2 | The Parties acknowledge that the Consideration shall be allocated as follows: |
| (a) | [***] to the MLU Sale Shares being transferred by NL1; |
| (b) | [***] to the MLU Sale Shares being transferred by NL2; |
| (c) | [***] to the SDG Sale Shares being transferred by NL1; |
| (d) | [***] to the SDG Sale Shares being transferred by NL2; |
| (e) | [***] by way of prepayment for the Demerger Shares being transferred by NL1; and |
| (f) | [***] by way of final payment for the Demerger Shares being transferred by NL1. |
| 4.3 | Notwithstanding the foregoing, each of Yandex and Uber (on behalf of the Sellers) acknowledges that, for financial reporting purposes, Uber and Yandex will be required to determine the allocation of Consideration under this Agreement taking into account all relevant facts and circumstances in good faith and in accordance with GAAP. Uber and Yandex shall each have sole discretion to make adjustments to the allocation stated in Clause 4.2 in order to comply with GAAP for purposes of its respective financial statements and Tax compliance; provided, however, that Uber and Yandex will cooperate in good faith to align on such adjustments (but, for the avoidance of doubt, shall not be required to agree). |
| 4.4 | Notwithstanding anything to the contrary in this Agreement, Uber and Yandex, and their respective Affiliates, shall be entitled to report a different allocation of the Consideration for purposes of Tax reporting in any applicable jurisdiction, or as otherwise required for purposes of any reporting made pursuant to GAAP, in each case as required by applicable Law (as determined by an internationally recognized firm of certified public accountants engaged by Uber or Yandex, respectively); provided, however, that Uber and Yandex will cooperate in good faith to align on such different allocation (but, for the avoidance of doubt, shall not be required to agree). |
| 5. | INITIAL CLOSING |
| 5.1 | The closing of the sale of the MLU Shares and the SDG Shares (the “Initial Closing”) shall be held at the office of the Notary at Xxxxxxxxxxxxx 000; 0000 XX Xxxxxxxxx at 12:00 p.m. on the |
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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.
| Initial Closing Date (which shall occur no later than five (5) Business Days after the date of this Agreement), or such other place, date or time as the Parties shall agree. |
| 5.2 | At the Initial Closing (unless already having occurred prior to Initial Closing), the Parties shall deliver to the Notary or shall procure to be delivered to the Notary: |
| (a) | a duly signed and dated version of this Agreement; |
| (b) | (in the case of Yandex) the original shareholders registers of each of MLU and SDG; |
| (c) | a power of attorney in favor of the Notary and the employees of Van Doorne N.V. to execute the relevant Notarial Transfer Deed and perform any acts required in relation thereto, duly executed in accordance with the signing instructions by each of the Sellers, Uber, Yandex, SDG and MLU; |
| (d) | a resolution executed by its board of directors, or a duly authorized committee thereof, approving entry by each Party into this Agreement and the transfers of the MLU Sale Shares and the SDG Sale Shares; |
| (e) | (in the case of the Sellers) copies of any resolutions and approvals required to effectuate the transfer of the MLU Sale Shares and the SDG Sale Shares; |
| (f) | resignation letters of [***] and [***] relating to their resignation as supervisory director of SDG, effective as per the moment of the execution of the relevant Notarial Transfer Deed; |
| (g) | (in the case of Yandex) copies of any resolutions and approvals required to effectuate the payment of the Initial Closing Cash Consideration; |
| (h) | a resolution executed by the general meeting of SDG accepting the resignation of [***] and [***]; |
| (j) | a duly completed and executed Internal Revenue Service Form 8832 for each Tax Relevant Entity (as defined below) specified by Uber at least two (2) days prior to the Initial Closing; and |
| (k) | duly signed (and, where necessary, witnessed) versions of each of: |
| (i) | the Deed of Termination; |
| (ii) | the Deed of SHA Novation; |
| (iii) | the Deed of SHA Amendment; |
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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.
| (iv) | the Amended Deed of Covenant; |
| (v) | the Amended Trademark License; and |
| (vi) | the Reimbursement Agreement, |
which shall be delivered, released and dated by the parties thereto at Initial Closing, the Deed of SHA Novation being delivered and released immediately before the Deed of SHA Amendment.
| 5.6 | With effect from the Initial Closing, all of the Sellers’ rights in and to the MLU Sale Shares and the SDG Sale Shares shall terminate, and title, ownership and all of the rights, preferences, privileges and obligations associated with all such shares shall vest in Yandex. |
| (a) | there is continuity in and no disruption to either the Demerged Businesses or the Remaining Businesses as a result of the Demerger and no transfer or assignment of any asset, right or employee unless reasonably necessary; |
| (b) | as at the Effective Time, Demerger Newco is owned by the shareholders in MLU pro rata to their respective shareholdings in MLU as of the moment of the execution of the Notarial Deed of Demerger; |
| (c) | as at and from the Effective Time, each of the Demerged Businesses shall be wholly owned directly or indirectly by Demerger Newco; |
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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.
| (e) | immediately following the Effective Time: |
| (i) | MLU (together with its Subsidiaries) will retain all Contracts that relate to, and all assets, rights and interests used in connection with, the Remaining Businesses; |
| (ii) | With the exception of certain intellectual property rights to be transferred to the Demerged Entities as set forth in Schedule A of the Demerger Step Plan (the “Transferred IP”), none of which is used in the Remaining Business, MLU will retain ownership of all intellectual property rights developed by it prior to the Effective Time; and |
| (iii) | The Demerged Entities will have (1) all Contracts that relate exclusively to, and all assets, rights and interests used exclusively in connection with, the Demerged Businesses; and (2) the right to access and enjoy, under the Inter-Company Agreements, all of the other assets, rights and interests necessary to operate and conduct the Demerged Businesses; |
| (f) | Inter-Company Agreements will be entered into as necessary to ensure that there is continuity in and no disruption to either the Demerged Businesses or the Remaining Businesses as a result of the Demerger and, unless otherwise mutually agreed by the parties, will be implemented and maintained pursuant to the following principles: (i) all rights, services and products (including without limitation shared services, shared personnel, and use of assets, users, drivers and Contracts and system access) shall be remunerated on an arms-length basis (i.e., cost-plus, percentage of revenue, or other transfer pricing policy) supported, as and to the extent reasonably necessary, by benchmark studies undertaken by a “Big Four” accounting firm, (ii) when selecting from within benchmark ranges, consideration shall be given to whether the resulting remuneration is commensurate with actual costs incurred by the entity providing such rights, services or products, and consideration may be given to past practices between MLU and Yandex, (iii) all rights, services and products of the Remaining Businesses shall be prioritized for, and be for the primary benefit of, the Remaining Businesses and all rights, services and products of the Demerged Businesses shall be prioritized for, and be for the primary benefit of, the Demerged Businesses, (iv) calculation of intercompany charges will take into account allocation of direct costs and apportionment of indirect costs (or costs that benefit multiple lines of business) using a reasonably accurate methodology (e.g., pro-ration based on headcount or revenue), (v) costs associated with all rights, services and products exclusively used by the Demerged Businesses should be [***] borne by the Demerged Businesses, (vi) costs associated with all rights, services and products exclusively used by the Remaining Businesses should be [***] borne by the Remaining Businesses and (vii) such transfer pricing policies and calculation methodologies shall be updated as necessary to comply with the arms-length standard and/or to account for changes in facts; |
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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.
| (g) | to the extent any Inter-Company Agreement between Yandex or any of its Subsidiaries (other than MLU and/or any of its Subsidiaries), on the one hand, and MLU or any of its Subsidiaries, on the other hand, includes fees, costs or other amounts calculated or allocated on the basis of operational, financial or other similar metrics of MLU and/or its Subsidiaries, amendments to such Inter-Company Agreements (including to any minimum royalties, fees or similar payments therein) shall be made to proportionally adjust such metrics to give effect to the Demerger and exclude the Demerged Businesses from MLU and/or such Subsidiaries, and shall become effective immediately following the Effective Time; |
| (h) | the rate(s) or amount(s) payable by MLU or any of its Subsidiaries in respect of any rights, services or products provided by Yandex or any of its Subsidiaries (other than MLU and/or any of its Subsidiaries) as of the date of this Agreement shall not be modified or amended unless and until market conditions or the scope of rights, services or products change in which case such rate(s) or amount(s) may be increased as reasonably necessary, subject to the other terms of this Clause 6, to appropriately reflect such change; |
| (i) | immediately following the Effective Time, the properties, rights, interests and other tangible and intangible assets which are owned, leased or licensed by MLU and/or its Subsidiaries, or that MLU and/or its Subsidiaries otherwise have the right to use, will constitute all of the properties, rights, interests and other tangible and intangible assets that are used by MLU and/or its Subsidiaries for the conduct or operation of the Remaining Businesses as of immediately prior to the Effective Time; |
| (j) | immediately following the Effective Time, none of the assets or properties owned, leased or licensed by Demerger Newco and its Subsidiaries (including the intellectual property rights set forth on Schedule A of the Demerger Step Plan) will be material to or necessary for MLU and its Subsidiaries to conduct, operate and continue to conduct the Remaining Businesses; |
| (k) | subject to paragraph 6.1(l), all employees of MLU or any of its Subsidiaries as of immediately prior to the Effective Time shall be allocated to the Remaining Businesses, other than certain employees described on Schedule C of the Demerger Step Plan whose roles primarily relate to the Demerged Businesses, who will transfer to (or be retained by) the Demerged Entities pursuant to Applicable Laws with effect from or shortly after the Effective Time; |
| (l) | in addition to the employees who will transfer to (or be retained by) the Demerged Entities pursuant to paragraph 6.1(k), certain additional technical and development staff primarily engaged in the Demerged Businesses described on Schedule C of the Demerger Step Plan may be transferred from the Remaining Businesses to the Demerged Businesses after the Effective Time. The time and costs of such employees (together with those development engineers that support core infrastructure and technologies used by the Remaining Businesses and the Demerged Businesses) will be allocated fairly under the terms of appropriate Inter-Company Agreement(s); and |
| (m) | in the event that MLU or any of its Subsidiaries are required to renew, or enter into new, third-party Contracts as a result of the Demerger, the terms of such third-party Contracts |
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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.
| shall be not less favorable to MLU or its applicable Subsidiary than terms of the Contracts that are in place with such third parties immediately prior to the Effective Time. |
The principles in this Clause 6.1 shall operate together and not separately. The actions in the Demerger Step Plan shall in any case be subject to the principles set forth in this Clause 6.1. The parties acknowledge that the list of assets in Schedule A to the Demerger Step Plan is preliminary and shall not prejudice the principles in this Clause 6.1.
| 6.2 | Within [***] days after the Demerger Closing, Yandex shall prepare, cause MLU’s auditors to review and then deliver to Uber the following: |
| (a) | a pro forma consolidated balance sheet for MLU immediately prior to the Effective Time; in the form set out in Column 2 of Schedule 4; |
| (b) | a pro forma consolidated balance sheet for MLU immediately after the Effective Time in the form set out in Column 3 of Schedule 4 (the “Post Demerger Balance Sheet”), |
each such pro forma balance sheet to be prepared in accordance with Schedule 5.
| 6.3 | The Post Demerger Working Capital shall be agreed or determined by the Parties, in accordance with Schedule 5 (Post Demerger Working Capital Confirmation). |
| 6.6 | For the avoidance of doubt, in no event shall any amount be double-counted for purposes of the calculations of Post Demerger Working Capital or Target Working Capital and such calculations shall therefore exclude any amount which is included in Net Cash or Indebtedness. |
| 6.7 | Yandex shall exercise all of its rights and powers as a shareholder in MLU to procure that MLU (including the Demerged Businesses) will operate in the ordinary course until the Effective Time. |
| 6.8 | Yandex shall procure that the Demerger is implemented, and the Inter-Company Agreements are entered into, in compliance with the Demerger Step Plan and this Agreement in all material respects |
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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.
| (including without limitation Clause 6.1) as soon as reasonably practicable following the Initial Closing. Yandex shall provide Uber and its representatives with a reasonable opportunity to review and comment on (a) all documents related to the implementation of the Demerger, including without limitation each step in the Demerger Step Plan, and (b) each Inter-Company Agreement, and in each case Yandex shall consider any such comments in good faith prior to finalizing, executing and implementing each such step or document. Yandex shall keep Uber and its representatives reasonably informed, including reasonably promptly following Uber’s request, as to the status of the implementation of the Demerger Step Plan and the execution of the Inter-Company Agreements. Promptly following the implementation of each step in the Demerger Step Plan and the execution of each Inter-Company Agreement, Yandex shall provide final, executed copies of such documents to Uber, together with any other related documents that Uber may reasonably request. |
| 6.9 | The Notarial Demerger Deed shall be executed by the Notary on the first (1st) Business Day following that upon which it is first permitted to occur pursuant to Dutch law and the Notary has received the relevant documents to his/her satisfaction to proceed with the execution of the Notarial Demerger Deed. On the date of the signing of the Notarial Demerger Deed, Yandex shall deliver to Uber a certificate, validly executed by a duly appointed officer of Yandex, to the effect that the Demerger has been implemented, and the Inter-Company Agreements have been entered into, in compliance in all material respects with this Agreement (including without limitation Clause 6.1). |
| 7. | DEMERGER SHARES CLOSING MECHANICS |
| 7.2 | At the Demerger Shares Closing (unless already having occurred), the Parties shall deliver to the Notary or shall procure to be delivered to the Notary: |
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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.
| (a) | a duly signed and dated version of this Agreement; |
| (b) | (in the case of Yandex) the original shareholders register of Demerger Newco; |
| (c) | a power of attorney in favor of the Notary and the employees of Van Doorne N.V. to execute a relevant Notarial Transfer Deed and perform any acts required in relation thereto, duly executed in accordance with the signing instructions by each of NL1, Yandex and Demerger Newco; |
| (d) | a duly completed and executed election for each Tax Relevant Entity (as defined below) specified at least twenty (20) days prior to the Demerger Shares Closing by Uber pursuant to Clause 12.7; and |
| (e) | (in the case of Demerger Newco) resolutions approving the transfer of the Demerger Shares to Yandex. |
| 7.5 | Immediately upon receipt of the Demerger Cash Consideration SWIFT Confirmation, the Notary shall (and the Parties shall procure that the Notary shall and pursuant to this Agreement and the powers of attorney from each of NL1 and Yandex, the Notary is hereby irrevocably and fully authorized to) execute the relevant Notarial Transfer Deed in relation to the transfer of the Demerger Shares as contemplated in this Clause 7. |
| 7.6 | With effect from Demerger Shares Closing all of the NL1’s rights in and to the Demerger Shares shall terminate, and title, ownership and all of the rights, preferences, privileges and obligations associated with them shall vest in Yandex. |
| 7.7 | At or prior to Demerger Shares Closing, each Party shall take such actions and execute such additional documents, certificates and instruments and take such other steps as shall be reasonably necessary to give effect to the transactions contemplated to take place at Demerger Shares Closing and shall take such actions following Demerger Shares Closing as may be reasonably necessary or appropriate in furtherance of the agreements and covenants contained herein. |
| 7.8 | Title to and beneficial ownership of the Demerger Shares shall pass to Yandex at Demerger Shares Closing through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same. |
| 7.9 | The Demerger Shares shall be transferred with the rights, preferences, privileges and restrictions set forth in the articles of association of Demerger Newco and free and clear of all Encumbrances. |
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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.
| 7.10 | Each relevant Party waives (or agrees to procure the waiver of) any rights or restrictions conferred on him or on any other person which may exist in relation to the Demerger Shares under the articles of association of Demerger Newco. |
| 7.11 | Uber shall procure compliance by NL1 with this Clause 7. |
| 8. | DEMERGER LONG STOP DATE |
| 8.1 | Yandex shall exercise all of its rights and powers as a shareholder in MLU, and shall use all reasonable commercial endeavours, to procure that the Demerger Closing occurs by no later than December 31, 2021 (the “Longstop Date”). Uber shall exercise all of its rights and powers as a shareholder in MLU, and shall use all reasonable commercial endeavours to assist Yandex upon its reasonable request, in giving effect to the Demerger Step Plan in accordance with this Agreement. |
| (a) | Uber shall pay the amount of [***] to the Yandex Bank Account by wire transfer of immediately available funds, such funds to be received by Yandex within five (5) Business Days following the Longstop Date; |
| (b) | Yandex shall transfer legal and beneficial ownership in the MLU Sale Shares to Uber through the execution of the relevant Notarial Transfer Deed, whereby Uber will accept delivery of the same, such transfer to be completed simultaneously (so far as practical) with the transfer of funds pursuant to Clause 8.2(a); |
| (c) | Uber shall pay [***] to the Yandex Bank Account by wire transfer of immediately available funds, such funds to be received by within five (5) Business Days following the Longstop Date, and Yandex shall have the right to initiate legal proceedings against Uber for damages in excess of such amount; and |
| (d) | The Call Option Price shall be fixed at [***] until the Call Option Termination Date notwithstanding Clauses 9.4(b) or 9.4(c). |
For the avoidance of doubt, Uber’s rights under the Amended MLU SHA shall remain in effect, notwithstanding this Clause 8.2.
| 8.3 | Where the Demerger Closing does not occur by the Longstop Date due to a material breach of this Agreement (including without limitation Clause 6.1) by Yandex, provided that Uber has first given Yandex notice of such material breach prior to the Longstop Date and that fifteen (15) Business Days following the delivery of such notice of material breach to Yandex (or the Longstop Date if sooner) such material breach has not been remedied to the reasonable satisfaction of Uber (provided that no cure period shall be required for a breach which by its nature cannot be cured), the following 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.
| (a) | The Call Option Termination Date shall be revised to mean the [***] anniversary of the Initial Closing; |
| (b) | Yandex shall pay the amount of [***] to the Uber Bank Account by wire transfer of immediately available funds, such funds to be received by Uber within five (5) Business Days following the Longstop Date; |
| (c) | NL1 shall transfer legal and beneficial ownership in [***] MLU Shares to Yandex (such number being equal in aggregate to [***]% of the outstanding and issued shares in MLU calculated at the date hereof) (the “Additional Shares”), such transfer to be effected through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same and the transfer pursuant to this Clause 8.3(c) to be completed simultaneously (so far as practical) with the transfer of funds pursuant to Clause 8.3(b); |
| (e) | Clause 23.4 of the Amended MLU SHA shall be deleted and replaced in its entirety with a new Clause 23.4 as set forth in Schedule 3 hereto. |
| 8.4 | If the Demerger Closing does not occur by the Longstop Date due to any reason other than those set forth in Clause 8.2 or Clause 8.3, the Longstop Date shall automatically be extended to [***]. If the Demerger Closing does not occur by the Longstop Date, as so extended, due to any reason other than those set forth in Clause 8.2 or Clause 8.3, the following shall apply: |
| (a) | Yandex shall pay the amount of [***] to the Uber Bank Account by wire transfer of immediately available funds, such funds to be received by Uber within five (5) Business Days following the Longstop Date; and |
| (b) | NL1 shall transfer legal and beneficial ownership in the Additional Shares, such transfer to be effected through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same and the transfer pursuant to this Clause 8.4(b) to be completed simultaneously (so far as practical) with the transfer of funds pursuant to Clause 8.4(a). |
For the avoidance of doubt, Uber’s rights under the Amended MLU SHA shall remain in effect, notwithstanding this Clause 8.4.
| 8.5 | Where Clause 8.4 applies and the Demerger Closing nonetheless occurs within [***] months following the Longstop Date, as so extended, unless the Call Option has already been exercised pursuant to Clause 9, the following shall apply on an inter-conditional basis within five (5) Business Days of the occurrence of the Demerger Closing: |
| (a) | Yandex shall transfer legal and beneficial ownership in the Additional Shares to Uber, such transfer to be effected through the execution of the relevant Notarial Transfer Deed, whereby Uber will accept delivery of the same; and |
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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.
| (b) | Uber shall in exchange transfer legal and beneficial ownership in all of the Demerger Shares to Yandex, such transfer to be effected through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same, such transfer to be completed simultaneously (so far as practical) with the transfer pursuant to Clause 8.5(a). |
| 8.6 | Following the Demerger Closing, and until the Call Option Closing, Uber shall have the right, exercisable [***] per calendar year, to review and inspect all documents and all underlying books and records reasonably related to, and be granted reasonable access to the appropriate personnel at Yandex, MLU and/or the Demerged Entities to answer questions with respect to, the implementation of the Demerger held by Yandex, MLU, the Demerged Entities and their respective Affiliates and representatives. If, following the Demerger Closing, Uber discovers any breach of Clause 6.1, provided that Uber first provides Yandex with notice of such breach and at least fifteen (15) Business Days following the delivery of such notice to remedy such breach to the satisfaction of Uber (acting reasonably) (provided that no cure period shall be required for a breach which by its nature cannot be cured), Uber shall have the right to initiate legal proceedings against Yandex for damages and/or in the case of a breach of Clause 6.1(e), Clause 6.1(i) or Clause 6.1(j), seek specific performance, including the Misallocated Assets Remedy. |
| 9. | CALL OPTION |
| 9.3 | No later than [***] Business Days following the date on which Uber receives a Call Option Notice, Uber shall transmit by email to Yandex confirmation of receipt of the Call Option Notice. |
| 9.4 | The Call Option Price shall be calculated as follows: |
| (a) | where the Call Option is exercised prior to 1 July 2022, the Call Option Price shall be one billion eight hundred eleven million in US Dollars ($1,811,000,000); provided that if the Call Option is exercised prior to the earlier of (i) the Demerger Closing and (ii) the Longstop Date, then the Call Option Price shall be [***]. |
| (b) | where the Call Option is exercised on or after [***] and prior to [***], the Call Option Price shall be [***] (plus interest as set forth in Clause 9.5). |
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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.
| effect from [***] to the date on which Call Option Closing occurs. Interest shall accrue, in each case, daily on the basis of a three-hundred and sixty-five (365) day year and shall compound quarterly. |
| 9.6 | Upon exercise of the Call Option, NL1 shall sell, assign, transfer, convey and deliver to Yandex and Yandex shall purchase and accept from the Seller, free and clear of all claims, liens, charges, encumbrances and equities whatsoever the MLU Option Shares held by such Seller on the date of exercise of the Call Option. |
| 10. | CALL OPTION MECHANICS |
| 10.2 | At Call Option Closing (unless already having occurred), the Parties shall deliver to the Notary or shall procure to be delivered to the Notary: |
| (a) | a duly signed and dated version of this Agreement and the Call Option Notice; |
| (b) | (in the case of Yandex) the original shareholders registers of MLU; |
| (c) | a power of attorney in favor of the Notary and the employees of Van Doorne N.V. to execute a relevant Notarial Transfer Deed and perform any acts required in relation thereto, duly executed in accordance with the signing instructions by NL1, Uber, Yandex and MLU; and |
| (d) | (in the case of MLU) resolutions approving the transfer of the MLU Option Shares to Yandex. |
| 10.5 | Immediately upon receipt of the Call Option SWIFT Confirmation, the Notary shall (and the Parties shall procure that the Notary shall and pursuant to this Agreement and the powers of attorney from NL1 and Yandex, the Notary is hereby irrevocably and fully authorized to) execute the relevant Notarial Transfer Deed in relation to the transfer of the MLU Option Shares as contemplated in this Clause 10. |
| 10.6 | With effect from Call Option Closing all of NL1’s rights in and to the MLU Option Shares shall terminate, and title, ownership and all of the rights, preferences, privileges and obligations associated with them shall vest in Yandex. |
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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.
| 10.7 | At or prior to Call Option Closing, each Party shall take such actions and execute such additional documents, certificates and instruments and take such other steps as shall be reasonably necessary to give effect to the transactions contemplated to take place at Call Option Closing and shall take such actions following Call Option Closing as may be reasonably necessary or appropriate in furtherance of the agreements and covenants contained herein. |
| 10.8 | Title to and beneficial ownership of the MLU Option Shares shall pass to Yandex at Call Option Closing through the execution of the relevant Notarial Transfer Deed, whereby Yandex will accept delivery of the same. |
| 10.9 | The MLU Option Shares shall be transferred with the rights, preferences, privileges and restrictions set forth in the articles of association of MLU and the Amended MLU SHA (as the case may be) and free and clear of all Encumbrances. |
| 10.10 | Yandex shall not be obliged to complete the acquisition of any of the MLU Option Shares unless the transfer of all such shares is completed simultaneously. |
| 10.11 | Each relevant Party waives (or agrees to procure the waiver of) any rights or restrictions conferred on him or on any other person which may exist in relation to the MLU Option Shares under the articles of association of MLU or the Amended MLU SHA, as the case may be. |
| 10.12 | Uber shall procure compliance by the Sellers with this Clause 10. |
| 11. | WARRANTIES AND COVENANTS OF UBER |
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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.
| (c) | The Sellers are, and immediately prior to the Initial Closing will be, the sole beneficial and legal owners of the MLU Sale Shares and the SDG Sale Shares, taking into account the split of the economic title to the class B ordinary share of MLU, numbered B12,880,252, and the class A ordinary share of SDG, numbered A4,272,699, as set out above in recitals (C) and (D) above, and have, and as of immediately prior to the Initial Closing will have, good and valid title to such shares free and clear of all restrictions, claims, liens, charges, encumbrances and equities whatsoever. |
| (d) | The Sellers have or will have, as of the Initial Closing, full right, power and authority to sell, transfer and deliver legal and beneficial ownership of the MLU Sale Shares, taking into account the split of the economic title to the class B ordinary share of MLU, numbered B12,880,252, and the class A ordinary share of SDG, numbered A4,272,699, as set out above in recitals (C) and (D) above, and the SDG Sale Shares to Yandex and, upon delivery of the relevant duly executed Notarial Transfer Deed, will, transfer to Yandex good and valid title thereto free and clear of any restriction, claim, lien, charge, encumbrance or equity whatsoever. |
| 11.2 | Uber acknowledges that SDG may during 2021 or subsequently decide to launch an investment round in which it will solicit interest, subject to prevailing market conditions, from prospective strategic tier 1 or original equipment manufacturer partners. |
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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.
| exists or may exist, whether in law or in equity and whether or not presently known to any Party or to the law, Uber and the Sellers, effective as of and subject to the occurrence of the Initial Closing, hereby irrevocably waive such Uber SDG Released Claim and release and forever discharge SDG, its respective Affiliates, directors, officers and employees from all and any such liability in respect of such Uber SDG Released Claim, and shall procure that their respective Affiliates act consistently with, and as if bound by, this Clause 11.3. |
| 11.7 | Notwithstanding anything herein to the contrary, Yandex and/or its Affiliates shall only be entitled to recover Losses from Uber in respect of a claim for indemnification under Clause 11.6 if (and only if) (a) Yandex first notifies Uber in writing of its claim for indemnification hereunder no later than [***] days following the date on which Yandex or its Affiliate’s first discover or obtain actual knowledge of the facts giving rise to such claim for indemnification hereunder (which notification shall include, to the extent known at such time, reasonable detail of the basis upon which Yandex or its Affiliates consider Uber liable for such indemnification and the amount sought) and (b) following the delivery of such indemnification claim to Uber, Uber fails to remedy the matter underlying such claim for indemnification within [***] days of receiving such indemnification claim notice (such remediation to be to Yandex’s satisfaction (acting reasonably)). Only if such |
28
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.
| matter remains unremedied as of the end of such [***]-day period shall Yandex or its Affiliates be entitled to recover any Losses from Uber under Clause 11.6 in respect of such claim. |
| 12. | WARRANTIES AND COVENANTS OF YANDEX |
29
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.
| ownership in SDG prior to the Initial Closing (the “Yandex SDG Released Claims”). If any Yandex SDG Released Claim exists or may exist, whether in law or in equity and whether or not presently known to any Party or to the law, Yandex, effective as of and subject to the occurrence of the Initial Closing, hereby irrevocably waives such Yandex SDG Released Claim and releases and forever discharges Uber, each Seller and their respective Affiliates, directors, officers and employees from all and any such liability in respect of such Yandex SDG Released Claim, and shall procure that its Affiliates act consistently with, and as if bound by, this Clause 12.2. |
30
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.
| otherwise arise out of the operation of the Demerged Businesses prior to the Demerger Closing (excluding any liabilities that are included in the final calculations of Indebtedness or Post Demerger Working Capital or otherwise indemnified by a third party); provided that such undertaking shall terminate three years following the Demerger Closing. |
| 12.6 | Notwithstanding anything herein to the contrary, Uber and/or its Affiliates shall only be entitled to recover Losses from Yandex in respect of a claim for indemnification under Clause 12.4 if (and only if) (a) Uber first notifies Yandex in writing of its claim for indemnification hereunder no later than [***] days following the date on which Uber or its Affiliate’s first discover or obtain actual knowledge of the facts giving rise to such claim for indemnification hereunder (which notification shall include, to the extent known at such time, reasonable detail of the basis upon which Uber or its Affiliates consider Yandex liable for such indemnification and the amount sought) and (b) following the delivery of such indemnification claim to Yandex, Yandex fails to remedy the matter underlying such claim for indemnification within [***] days of receiving such indemnification claim notice (such remediation to be to Uber’s satisfaction (acting reasonably)). Only if such matter remains unremedied as of the end of such [***]-day period shall Uber or its Affiliates be entitled to recover any Losses from Yandex under Clause 12.4 in respect of such claim. |
| 12.7 | For each of (a) MLU, (b) any subsidiary of MLU, and (c) any Demerged Entity (each, a “Tax Relevant Entity”), upon the written request of Uber, such entity will elect, or cause such election to be made, to treat such entity as a partnership or disregarded entity, as applicable, for U.S. federal income tax purposes, including by filing a “check the box” election on Form 8832. |
| 13. | GENERAL ACKNOWLEDGEMENT |
Each of Yandex and Uber acknowledges that it has read this Agreement and the other documents to be delivered in connection with the consummation of the transactions contemplated hereby and has made an independent examination of the transactions contemplated hereby (including any Tax consequences). Each of Yandex and Uber acknowledges that it has had an opportunity to consult with and has relied solely upon the advice of its legal counsel, financial advisors, or accountants with respect to the transactions contemplated by this Agreement to the extent it has deemed necessary, and has not been advised or directed by the other Party or their respective legal counsel or other advisors in respect of any such matters and has not relied on any such Parties in connection with this Agreement and the transactions contemplated hereby. Uber has been furnished with or has had access during, and prior to, the course of this transaction to all information necessary to enable Uber to evaluate the merits and risks of a prospective investment in Yandex and to form a view on the Consideration, and Uber has had an opportunity to discuss with representatives of Yandex the business and financial affairs of Yandex, MLU and SDG and to obtain such additional information as Uber has reasonably requested. Each of Yandex and Uber acknowledges that, save as otherwise provided by this Agreement, it (and not the other Party, MLU or SDG) shall be responsible for its own Tax liability that may arise as a result of or in connection with this Agreement and any of the transactions contemplated by this Agreement.
| 14. | TERMINATION |
| 14.1 | This Agreement shall automatically terminate with immediate effect and each Party’s rights and obligations shall cease to have force and effect if the Initial Closing does not occur on the Initial Closing Date because Uber or a Seller (on the one hand) or Yandex (on the other hand) fails to comply with an obligation at the Initial Closing, in which case either Uber or Yandex (whichever |
31
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.
| is the non-breaching party) may either: (a) defer the Initial Closing until such time as such obligation is satisfied by the breaching party or waived by such non-breaching party; or (b) if such breach is material and has not been remedied within ten (10) Business Days of the other party receiving notice of such breach, give notice to the other party that it wishes to terminate this Agreement. |
| 14.2 | Termination of this Agreement shall not affect any rights or obligations which have accrued or become due prior to the date of termination. Termination of this Agreement shall not affect the continuing validity and rights and obligations of the Parties under Clauses 18 to 21 (inclusive). |
| 14.3 | Subject to this Clause 14, no Party shall have a right to delay, defer or avoid the Initial Closing, the Demerger Closing or the Call Option Closing, or to rescind or terminate this Agreement. |
| 15. | COVENANTS |
| 15.1 | Each of the Parties hereto shall provide such information, perform such further acts and execute such additional documents as may be required to effectuate this Agreement, as relevant, and all other transactions contemplated by this Agreement, and shall be deemed to have waived all statutory and contractual rights of pre-emption of any kind for such purpose. |
| 15.2 | The Sellers and Yandex agree to use their respective rights and powers to procure that MLU and SDG consent to the transfer of the relevant MLU Sale Shares, SDG Sale Shares and MLU Option Shares to Yandex and that such transfers are properly reflected in their respective books and records. |
| 15.3 | Yandex and Uber agree to exercise their respective rights and powers to procure that their representatives to the board of directors of MLU and the board of directors of SDG vote in favour of any resolution required to approve or give effect to any matter contemplated by this Agreement. |
| 15.4 | Yandex covenants that it shall obtain all requisite shareholder and other consents and approvals required to consummate the Call Option Closing prior to delivering the Call Option Notice. |
| 16. | WITHHOLDINGS AND DEDUCTIONS |
All payments to be made under this Agreement and the Trademark License shall be made without any set-off, counterclaim, deduction or withholding regardless of any requirements of Applicable Law or otherwise; provided, that, in the event that a change in Applicable Law that is first introduced after the date hereof requires deduction or withholding of Tax on amounts paid by Yandex pursuant to this Agreement or the Trademark License, Yandex will be permitted to make such deduction and withholding that results solely from that change in Applicable Law if, prior to making any such deduction or withholding Yandex provides Uber or its Affiliates notice of its intention to make such deduction or withholding (which notice shall include the authority, basis and method of calculation for the proposed deduction or withholding), at least three (3) Business Days before such deduction or withholding is required, in order for Uber or its Affiliates to obtain reduction of, or relief from, such deduction or withholding to the extent allowed under Applicable Law and Yandex shall use all reasonable endeavors to cooperate with Uber or its Affiliates to minimize any such Taxes. For the avoidance of doubt, if Yandex assigns or licenses its rights pursuant to this Agreement or the Trademark License, and such assignment or license results in greater withholding or deduction on payments made to Uber or its Affiliates pursuant to this
32
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.
Agreement or the Trademark License than the withholding or deduction that would have resulted without such assignment or license, such withholding or deduction will not be treated as having arisen “solely” from a change in Applicable Law for purposes of this paragraph. Any stamp duty or other transfer Tax payable in connection with the Initial Closing, the Demerger Shares Closing, the Call Option Closing, the Demerger or the other transactions contemplated by this Agreement shall be borne by Yandex.
| 17. | TAX INFORMATION RIGHTS |
| 17.2 | Yandex shall use all reasonable commercial endeavours to procure that an analysis of the material tax consequences of the Demerger in each of Israel, Armenia, Belarus and Kazakhstan, prepared by appropriate outside Tax counsel and/or a member of the “Big Four” (or, where appropriate, a reputable national firm), in form and substance reasonably acceptable to Uber, be provided to Uber prior to the Demerger Shares Closing. |
| 18. | ANNOUNCEMENTS AND CONFIDENTIALITY |
Announcements
| 18.1 | No Party shall (and each Party shall procure than none of its Affiliates or subsidiary undertakings or parent undertakings shall): |
| (a) | make or send; or |
| (b) | 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 each other Party’s written permission (that permission not to be unreasonably withheld or delayed).
33
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 Announcements
| 18.2 | Clause 18.1 does not apply to an announcement or circular: |
| (a) | which is required by Applicable Law, a court of competent jurisdiction or a competent judicial, governmental, supervisory or regulatory body, including without limitation the SEC; or |
| (b) | which is required by a rule of a stock exchange or listing authority on which the shares or other securities of a member of the disclosing person’s group are listed or traded. |
Consultation
| 18.3 | Subject to Clause 18.7, a Party that is required to make or send an announcement or circular in the circumstances contemplated by Clauses 18.2(a) and 18.2(b), must, before making or sending the announcement or circular, consult with each other Party and take into account each 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. |
Confidentiality
| 18.4 | Save as provided in Clause 18.5, no Party shall, without the consent of the other Parties, disclose to any third party, any Confidential Information. |
Permitted disclosures
| 18.5 | Subject further to Clauses 18.6 and 18.7, Clause 18.4 does not apply to a disclosure of Confidential Information in the following circumstances: |
| (a) | the disclosure is required by Applicable Law or required or requested by a Governmental Authority; |
| (b) | the disclosure is required by a rule of a stock exchange or listing authority on which the shares or other securities of a Party or its Affiliates are listed or traded; |
| (c) | the disclosure is made to a Party’s Affiliate, parent undertaking or subsidiary undertakings or a subsidiary undertaking of such parent undertaking, or its or their directors, officers or senior employees to the extent reasonably required, in which case the disclosing person is responsible for ensuring that the relevant recipient(s) complies with the terms of Clause 18.4 as if it were a party to this Agreement; |
| (d) | to the extent that the relevant Confidential Information is in the public domain other than by breach of this Agreement by any Party; |
| (e) | the Confidential Information 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; |
34
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.
| (f) | the disclosure is required for the purpose of legal proceedings arising out of this Agreement or the disclosure is required to be made to a Tax Authority in connection with the Tax affairs of a disclosing Party or any of its Affiliates; or |
| (g) | the disclosure is made to a professional adviser or agent of the disclosing person, in which case the disclosing person shall inform the professional adviser or agent of, and direct the professional adviser or agent to comply with, the terms of Clause 18.4 as if it were a party to this Agreement. |
| 18.8 | The information sharing provisions in Clause 18.7 shall apply to all communications between the relevant Governmental Authority and the Receiving Party until the matter in question is finally resolved. Clause 18.7 shall only bind a Party to the extent consistent with Applicable Law. |
| 19. | MISCELLANEOUS |
Warranties
35
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.
| 19.1 | The warranties and agreements set forth in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Initial Closing. |
Joint and Several
| 19.2 | The obligations of the Sellers under this Agreement shall be joint and several. |
Notices
| 19.3 | Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile or email, or five (5) Business Days after being deposited in certified or registered mail with postage prepaid, if such notice is addressed to the Party to be notified at such Party’s address or facsimile number as set forth below, or as subsequently modified by written notice, |
If to Yandex:
Yandex X.X.
Xxxxxxxx Xxxxxxxxx 000
Xxxxxxxx 0000 XX
Xxxxxxxxxxx
Attention: [***]
Email: [***]
with a copy (which shall not constitute notice) to:
Head of Legal
Yandex LLC
16 Xxx Xxxxxxx xxx.
Xxxxxx 000000 Xxxxxx
Email: [***]
Xxxxxx Xxxxx & Bockius UK LLP
Condor House
0-00 Xx. Xxxx’x Xxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: [***]
Facsimile Number: [***]
Email: [***]
If to Uber or the Sellers:
Uber Technologies, Inc.
0000 0xx Xx.
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: [***]
36
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.
Email: [***]
with copies (which shall not constitute notice) to:
Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: [***]
Facsimile Number: [***]
Email: [***]
Assignment
Third party rights
| 19.5 | No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Xxx 0000 by a person who is not a Party to this Agreement, with the exception of the rights of: (i) Affiliates of Yandex to enforce Clauses 11.3 and 11.4; and (ii) Affiliates of Uber to enforce Clauses 12.2 and 12.3; (a “Third Party”). The rights of a Third Party shall be subject to the provisions of Clause 20. |
Entire agreement
| 19.6 | Each of the Parties confirms that this Agreement and any documents referred to in it (including those in agreed form) represent the entire understanding, and constitute the whole agreement, in relation to their subject matter and supersede any previous agreement between the Parties with respect thereto (including, for the avoidance of doubt any prior summary of terms) and, without prejudice to the generality of the foregoing, exclude any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing. |
| 19.7 | Each Party confirms that: |
| (a) | in entering into this Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in this Agreement or the agreed form documents or any document referred to in it; and |
| (b) | in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with this Agreement or the agreed form documents or any document |
37
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.
| referred to in it are those pursuant to this Agreement or agreed form document or document referred to in any of them, and for the avoidance of doubt and without limitation, no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, and/or in this Agreement). |
Unenforceable provisions
| 19.8 | If any provision or part of this Agreement is void or unenforceable due to any Applicable Law, it shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum deletion necessary to make it valid, legal and enforceable. |
Further assurance
| 19.9 | At any time after the date of this Agreement the Parties shall, and shall use all reasonable endeavours complete the transactions contemplated by this Agreement and to procure that any necessary third party shall, at the cost of the relevant Party, execute and deliver such documents and do such acts and things as that Party may reasonably require for the purpose of giving to that Party the full benefit of all the provisions of this Agreement. |
Waiver
| 19.10 | The rights and remedies of the Parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other Party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the Parties. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy. |
Variation
| 19.11 | No variation of this Agreement (or any of the documents referred to in it) shall be valid unless it is in writing (which, for this purpose, does not include email) and signed by or on behalf of each of the Parties. The expression “variation” includes any variation, supplement, deletion or replacement however effected. |
Counterparts
| 19.12 | This Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which when executed and delivered shall be an original, but all the counterparts together constitute one instrument. Delivery of a counterpart of this Agreement by email attachment shall be an effective mode of delivery. In relation to each counterpart, upon confirmation by or on behalf of a Party that such Party authorises the attachment of its counterpart signature page to the final text of this Agreement, such counterpart signature page shall take effect, together with such final text, as a complete authoritative counterpart. |
38
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.
No partnership
| 19.13 | Nothing in this Agreement or in any document referred to in it shall constitute any of the Parties a partner of any other, nor shall the execution, completion and implementation of this Agreement confer on any Party any power to bind or impose any obligations to any third parties on any other Party or to pledge the credit of any other Party. |
Costs
| 19.14 | None of Uber, the Sellers or MLU shall be responsible for any liabilities, costs or expenses (a) of the Demerger (including any transfer taxes) or (b) arising out of the failure of the Demerger Closing to occur. Each Party shall however bear its own costs, and the costs of its advisers, incurred in connection with the preparation, negotiation, entry into and performance of this Agreement and the documents to be entered into pursuant to it. For the avoidance of doubt, except as otherwise set forth in this Agreement (including Clause 12.4), each Party shall also be responsible for the payment of any corporate income tax or capital gains tax which arises for its own account as a result of, or in connection with, the transactions contemplated hereby, including the Demerger. |
Language
| 19.15 | This Agreement was negotiated in English and, to be valid, all certificates, notices, communications and other documents made in connection with it shall be in English. If all or any part of this Agreement or any such certificate, notice, communication or other document is for any reason translated into any language other than English the English text shall prevail. Each of the Parties understands English and is content for all communications relating to this Agreement to be served on it in English. |
Remedies cumulative
| 19.16 | The rights and remedies provided by this Agreement (including without limitation the payment of liquidated damages under clauses 8.2(c) or 8.3(b) and the Misallocated Assets Remedy) are cumulative and the use of any one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies available hereunder or otherwise in law or equity. |
Default interest
| 19.17 | If a Party fails to pay in full any amount which is payable hereunder on the due date for such payment, interest shall accrue on that amount for the period beginning on the due date for payment and ending on the date of actual payment in full of such amount (both before and after judgment) |
39
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.
| at the annual rate of six (6) per cent. Interest shall be calculated on the basis of a year of three hundred sixty-five (365) days and shall accrue from day to day, compounding quarterly. |
| 20. | GOVERNING LAW AND DISPUTE RESOLUTION |
Governing law
| 20.1 | This Agreement and any non-contractual obligations arising out of or in connection with this Agreement are governed by English law. |
Dispute resolution
| (b) | The seat or legal place of arbitration shall be London, England, and the language used in the arbitral proceedings shall be English. All documents submitted in connection with the arbitral proceedings shall be in the English language or, if in another language, accompanied by an English translation. Sections 45 and 69 of the Arbitration Xxx 0000 shall not apply. |
| (c) | No Party shall be required to give general discovery of documents but may be required only to produce specific, identified documents or classes of documents which are relevant to the Dispute and material to its outcome. |
| (d) | Each Party agrees that the arbitration agreement set out in this Clause 20.2 and the arbitration agreement contained in each Related Agreement shall together be deemed to be a single arbitration agreement. |
40
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.
| (g) | To the extent permitted by law, each Party waives any objection, on the basis that a Dispute has been resolved in a manner contemplated by Clause 20.2(e) to 20.2(f), to the validity and/or enforcement of any arbitral award. |
| (h) | Each Party agrees that any arbitration under this Clause 20.2 shall be confidential to the Parties and the arbitrators and that each Party shall therefore keep confidential, without limitation, the fact that the arbitration has taken place or is taking place, all non-public documents produced by any other Party for the purposes of the arbitration, all awards in the arbitration and all other non-public information provided to it in relation to the arbitral proceedings, including hearings, save to the extent that disclosure may be requested by a regulatory authority, or required of it by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. |
| (i) | The law of this arbitration agreement, including its validity and scope, shall be English law. |
41
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.
| (j) | This agreement to arbitrate shall be binding upon the Parties, their successors and permitted assigns. |
| 21. | PROCESS AGENT |
| 21.1 | Uber irrevocably consents to the process by which any proceedings are commenced in the English courts in support of, or in connection with, an arbitration commenced pursuant to Clause 20.2 (Dispute Resolution) being served on it by being delivered to Uber London Limited, First Floor, Aldgate Tower, 0 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxx X0 0XX, Xxxxxxx. If such person is not or ceases to be effectively appointed to accept service of process on behalf of Uber, Uber shall immediately appoint a further person in England to accept service of process on its behalf. |
| 21.3 | Each of the Parties agree that failure by a process agent to notify it of any process will not invalidate the relevant proceedings or render service of those proceedings ineffective. |
| 21.4 | Nothing in this Clause 21 shall affect the right of any Party to serve process in any other manner permitted by Applicable Law. |
THIS AGREEMENT has been duly EXECUTED by the Parties (or their duly authorised representatives) as of the date first above written.
42
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.
EXECUTION PAGES
| UBER Technologies, Inc. |
|  By: /s/ Xxxxx Xxxxxx |
| Name: Xxxxx Xxxxxx |
| Title: Senior Director, Corporate Development & Capital Markets |
| Uber NL Holdings 1 B.V. |
| By: /s/ Seb Dupont |
| Name: Seb Dupont |
| Title: Director |
| Uber NL Holdings 2 B.V. |
| By: /s/ Xxxx Xxx |
| Name: Xxxx Xxx |
| Title: CBO EMEA |
| |
| By: /s/ Xxxxxx Xxxxxxxxx de Cuba |
| Name: Xxxxxx Xxxxxxxxx de Cuba |
| Title: Proxy Holder |
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.
44
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.
[On the headed notepaper of Yandex]
For the attention of:
Dear Sir or Madam,
Call Option Notice
We refer to the Framework Agreement dated [●] 2021 and made between (1) Yandex, (2) Uber and (3) the Sellers (the “Framework Agreement”). Terms used in this notice shall, unless otherwise indicated, bear the same meanings as are given to them in the Framework Agreement.
In accordance with the Framework Agreement, we hereby give irrevocable and unconditional notice of the exercise of the Call Option, pursuant to which we require the Sellers to sell to us all of the MLU Option Shares in accordance with the terms of the Framework Agreement, and confirm that all of the warranties provided in Clauses 12.1(a), (b), (c) and (d) are true and correct as of the date of this notice.
This notice shall constitute the Call Option Notice.
This Call Option Notice and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) (“Dispute”) shall be governed by and construed in accordance with English law.
The provisions of clause 20 (Governing Law and Dispute Resolution) of the Framework Agreement shall apply to this Call Option Notice as if set out in full herein, save that any references in that clause to “this Agreement” shall be deemed to refer to this Call Option Notice.
Yours faithfully,
………………………………………
[●]
For and on behalf of Yandex N.V.
45
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.
23.4 If Uber delivers a Qualified IPO Notice after the Call Option Termination Date in accordance with Clauses 23.1.3 and 23.3, Yandex shall be entitled to exercise its right to defer such Qualified IPO on no more than [***] occasion for a period of up to [***] months following the date on which Uber first delivers a Qualified IPO Notice (such date, as so deferred, the “IPO Deferral Date”) by giving a notice in writing to Uber within [***] Business Days of receipt of such Qualified IPO Notice exercising its right to defer such Qualified IPO. If Yandex has exercised the deferral rights in accordance with the foregoing and a Qualified IPO has not been consummated within [***] months following the IPO Deferred Date, then Clause 20 (Right of First Refusal) shall not apply to any Transfer by Uber to a Third Party Purchaser following the last date on which the IPO should have been consummated in accordance with this sentence and Clauses 23.5 to 23.8 (inclusive) shall instead apply; provided, however, that in the case of a proposed Transfer by Uber to Alphabet or Bolt, Clause 20 (Right of First Refusal) (but not Clauses 23.5 to 23.8) shall continue to apply. If Yandex does not notify Uber of such deferral within [***] Business Days of receipt of a Qualified IPO Notice, it shall forfeit the right to any deferral under this Clause 23.4 in the future.
46
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) | (3) |
ASSETS | Balance sheet of MLU immediately prior to the Effective Time, RUB mln | Balance sheet of MLU immediately after to the Effective Time, RUB mln |
Cash and cash equivalents | | |
Term deposits, current | | |
Accounts receivable, net | | |
Accounts receivable and prepaid expenses from related parties | | |
Prepaid expenses | | |
Funds receivable | | |
VAT reclaimable | | |
Inventory | | |
Other current assets | | |
Total current assets | | |
Property and equipment, net | | |
Intangible assets, net | | |
Goodwill | | |
Deferred tax assets | | |
Operating lease right-of-use assets | | |
Other non-current assets | | |
Total assets | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | |
Accounts payable and accrued liabilities | | |
Income and non-income taxes payable | | |
Operating lease liabilities, current | | |
Accounts payable to related parties | | |
Deferred revenue | | |
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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.
Total current liabilities | | |
Deferred tax liabilities | | |
Operating lease liabilities, non-current | | |
Other accrued liabilities | | |
Total non-current liabilities | | |
Ordinary shares | | |
Additional paid-in capital | | |
Accumulated other comprehensive income | | |
Accumulated deficit | | |
Total shareholders’ equity | | |
Total liabilities and shareholders' equity | | |
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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.
“Accounting Policies” | means the accounting policies to be used in preparation of the Post Demerger Balance Sheet listed in Paragraph 3 of this Schedule 5; |
“Current Assets” | means any reclaimable value added taxes, funds receivable, accounts receivable (net of bad debtor provision), inventory and prepaid expenses, and other current assets, determined (i) firstly, in accordance with the Accounting Policies and (ii) then otherwise in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures that were used in the preparation of the audited MLU financial statements for the financial year ended 31 December 2020 as if such accounts were being prepared and audited as of a fiscal year end; provided that, for the avoidance of doubt, “Current Assets” shall exclude any cash, cash equivalents or term deposits (including any Target Cash); |
“Current Liabilities” | means accounts payable, accrued liabilities, Taxes payable, deferred revenue, net current amounts due to lessors (i.e., right-of-use asset minus lease liability, including the non-current portion of any capital, synthetic or other lease liabilities) and other current liabilities, but excluding liabilities reflected as part of Indebtedness, determined (i) firstly, in accordance with the Accounting Policies and (ii) then otherwise in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures that were used in the preparation of the audited MLU financial statements for the financial year ended 31 December 2020 as if such accounts were being prepared and audited as of a fiscal year end; |
“Disputed Amounts” | has the meaning given in Paragraph 2.1(c) of this Schedule 5; |
“Independent Accountant” | has the meaning given in Paragraph 2.1(c) of this Schedule 5; |
“Post Demerger Working Capital” | means (a) the Current Assets of MLU and its Subsidiaries (on a consolidated basis), less (b) the Current Liabilities of MLU and its Subsidiaries (on a consolidated basis), in each case as determined as of immediately after the Effective Time, as agreed or determined in accordance with Paragraphs 2.1(b) or (e) of this Schedule 5 respectively; |
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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.
“Statement of Objections” | has the meaning given in Paragraph 2.1(b) of this Schedule 5; |
“Target Working Capital” | means [***]; and |
“Undisputed Amounts” | has the meaning given in Paragraph 2.1(c) of this Schedule 5. |
| (a) | Examination. After receipt of the Post Demerger Balance Sheet, Uber shall have [***] days (the “Review Period”) to review the Post Demerger Balance Sheet. During the Review Period, Uber and Uber’s accountants shall have full access to the books and records of MLU, the personnel of, and work papers prepared by, MLU and/or MLU’s accountants and auditors to the extent that they relate to the Post Demerger Balance Sheet as Uber may reasonably request for the purpose of reviewing the same and to prepare a Statement of Objections (defined below), provided, that such access shall be in a manner that does not interfere with the normal business operations of MLU. |
| (d) | Fees of the Independent Accountants. The fees and expenses of the Independent Accountant shall be paid by Uber, on the one hand, and by Yandex, on the other hand, |
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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.
| based upon the percentage that the amount actually contested but not awarded to Uber or Yandex, respectively, bears to the aggregate amount actually contested by Uber and Yandex. |
| 3.1 | The Post Demerger Balance Sheet and the Post Demerger Working Capital Statement shall be prepared based on the balances as of the nearest month end in which the Demerger Closing occurred and then adjusted for non-standard transactions or transactions outside the normal course of business between the Effective Time and the nearest reporting date and other relevant items to depict the financial position of MLU as of the Effective Time. Balances as of the nearest reporting date are either reviewed (in case of interim reporting date) or audited (in case of year end date) by MLU's auditor within the deadlines set out in the MLU SHA. |
| 3.2 | The Post Demerger Balance sheet shall be prepared (i) firstly, in accordance with the Accounting Policies and (ii) then otherwise in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures that were used in the preparation of the audited MLU financial statements for the financial year ended 31 December 2020 as if such accounts were being prepared and audited as of a fiscal year end. |
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