Contract
Exhibit 4.11
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.
EXECUTION VERSION
14 September 2020
and
MLU B.V.
CONTRIBUTION AGREEMENT |
Condor House
0-00 Xx. Xxxx’x Xxxxxxxxxx
Xxxxxx XX0X 0XX
Tel. x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
xxx.xxxxxxxxxxx.xxx
TABLE OF CONTENTS
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THIS AGREEMENT is made on 14 September 2020
BETWEEN:
1. | 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"); and |
2. | MLU 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 Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands and registered with the trade register of the Chamber of Commerce under number 69160899 ("MLU"). |
RECITALS:
(C) | Yandex desires to contribute the Participation Interests to MLU in exchange for the MLU Shares upon the terms and conditions set forth in this Agreement. |
(D) | MLU desires to issue the MLU Shares to Yandex in exchange for the contribution by Yandex of the Participation Interests to MLU. |
IT IS AGREED as follows:
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(b) | Effects resulting from epidemics, pandemics (including COVID-19), earthquakes, acts of war, armed hostilities or terrorism or any material escalation thereof; |
(c) | any failure to meet internal or published third party projections, estimates or forecasts, provided, that, such exclusion shall not apply to any underlying Effect that may have caused such failure; |
(d) | Effects resulting from compliance with the terms of, or the taking of any action required by, this Agreement; |
(e) | Effects resulting from the public announcement of this Agreement or the Transaction; |
(f) | changes in Applicable Law, regulatory conditions or applicable accounting principles; |
(g) | any matter that is Disclosed under the Disclosure Letter or (in relation to matters arising after the date of this Agreement) a Supplemental Disclosure Letter; or |
(h) | Effects resulting from any action taken by Yandex or the Drive Group, as applicable, that is expressly required by the terms of this Agreement, |
except, in the case of paragraphs (a), (b) or (f) of this definition, to the extent that such Effect or changes has a materially disproportionate effect on the Drive Business, taken as a whole, relative to other businesses engaged in the same or substantially similar industries in the territories in which the Drive Business operates;
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(a) | order, judgment, rule or regulation being entered, enforced, enacted or issued (whether temporary, preliminary or permanent) by any Governmental Authority; or |
(b) | actual, pending, threatened suit, action, investigation or proceeding by any Governmental Authority or third party, |
(a) | transfer agreement between Yandex (as transferor) and MLU (as transferee) with respect to the Yandex.Carsharing Participation Interest; and |
(b) | transfer agreement between Yandex (as transferor) and MLU (as transferee) with respect to the Xxxxxx.Xxxxx Participation Interest; |
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"Yandex Fundamental Warranties" means the warranties of Yandex set forth in paragraphs 1 (Organisation), 2 (Corporate Power and Authority), 3 (Due Authorisation, Execution and Delivery), 4.1.1 (No Breach), 8 (Title to Participation Interests), 9 (Title to Drive Group), and 13.5 and 13.6 (Liabilities and Obligations) of Schedule 2;
2.5 | On the date of this Agreement: |
2.5.1 | Yandex shall deliver, or cause to be delivered, to MLU two originals of the Disclosure Letter, each duly executed by Yandex; and |
2.5.2 | MLU shall deliver, or cause to be delivered, to Yandex two original of the Disclosure Letter, each duly executed by MLU. |
3.1.4 | completion of the subscription by Yandex [***] pursuant to a notarial deed of issue in the agreed form to be entered into via power of attorney on or about the date hereof [***]; |
Waiver
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Satisfaction of Conditions
Notification of satisfaction of Conditions
Failure to satisfy Conditions
Each of Yandex or MLU may give notice to the other party terminating this Agreement.
Russian Completion
Obligations at Dutch Completion
Obligations at Russian Completion
General provisions relating to Completions
Default at Completion
Warranties
Supplemental Disclosure Letter
Limitations on liability
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Conduct of the Drive Business Pending Completion
Termination events
Effect of termination
No other right to terminate or rescind
Confidentiality
8.2 | Subject further to clause 8.3, clause 8.1 does not apply to a disclosure or use of Confidential Information in the following circumstances: |
8.2.1 | the disclosure or use is required by Applicable Law or required or requested by a Governmental Authority; |
8.2.2 | the disclosure or use 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; |
8.2.3 | 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 for purposes connected with this Agreement (including permitted transfers), in which case the disclosing person is responsible for ensuring that the relevant recipient(s) complies with the terms of clause 8.1 as if it were a party to this Agreement; |
8.2.4 | to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by any party; |
8.2.5 | 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; |
8.2.6 | the disclosure or use 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 party or any of its Affiliates; or |
8.2.7 | the disclosure is made to a professional adviser of the disclosing person, in which case the disclosing person is responsible for ensuring that the professional adviser complies with the terms of clause 8.1 as if it were a party to this Agreement. |
Announcements
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8.4 | No party shall (and each party shall procure than none of its Affiliates or subsidiary undertakings or parent undertakings shall): |
8.4.1 | make or send; or |
8.4.2 | permit another person to make or send on its behalf, |
a public announcement or circular regarding the existence or the subject matter of this Agreement, unless it has first obtained the other party's written permission (that permission not to be unreasonably withheld or delayed).
Permitted announcements
8.5 | Clause 8.4 does not apply to an announcement or circular: |
8.5.1 | which is required by Applicable Law, a court of competent jurisdiction or a competent judicial, governmental, supervisory or regulatory body; or |
8.5.2 | 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
8.6 | A party that is required to make or send an announcement or circular in the circumstances contemplated by clauses 8.5.1 and 8.5.2, must, before making or sending the announcement or circular, consult with the other party and take into account the other party's requirements 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. |
Counterparts
Further assurances
Variation, waiver and consent
Entire Agreement
Costs
No set-off
Payments net of Tax
Russian Transfer Deeds
Third Party Rights
Continuing effect
Unenforceable provisions
Obligations and liability
Assignment
Governing language
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Yandex | MLU |
Address: Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands | Address: Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands |
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Attention: [***] | Attention: [***] |
Email: [***] | Email: [***] |
With a copy to each of: [***] | With a copy to: [***] |
10.1 | This Agreement and any non-contractual obligations arising out of or in connection with this Agreement are governed by English law. |
10.3 | The parties acknowledge that the Russian Transfer Deeds shall be governed by the laws of the Russian Federation. |
10.4.2 | 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. |
10.4.4 | 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. |
was raised for the purpose of applying any limitation bar or any similar rule or provision. If this clause operates to exclude a party's right to choose its own arbitrator, each party irrevocably and unconditionally waives any right to do so. |
10.4.8 | 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 clauses 10.4.6 to 10.4.7, to the validity and/or enforcement of any arbitral award. |
10.4.9 | Each party agrees that any arbitration under this clause 10.4 shall be confidential to the parties and the arbitrator 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. |
10.4.10 | The law of this arbitration agreement, including its validity and scope, shall be English law. |
10.4.11 | This agreement to arbitrate shall be binding upon the parties, their successors and permitted assigns. |
The parties are aware that the Dutch Notary holds office at Van Doorne, N.V.. The parties hereby acknowledge that they have been informed of the existence of the Ordinance Containing Rules of Professional Conduct and Ethics (Verordening beroeps- en gedragsregels) of the Royal Professional Organisation of Civil Law Notaries (Koninklijke Notariële Beroepsorganisatie) and explicitly agree and acknowledge that:
This Agreement has been duly executed by the parties (or their duly authorised representatives) on the date specified at the beginning of this Agreement.
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SIGNING PAGE
Signed by | ) | |
) | | |
Xxxxxx Xxxxxxxxx de Cuba | | |
(name) | | |
duly authorised for and on behalf of | ) | |
) | /s/ Xxxxxx Xxxxxxxxx de Cuba | |
) | Signature |
Signed by | ) | |
) | | |
Xxxxxxx Xxxxxxxxxxx Xxxxxxx | | |
(name) | | |
duly authorised for and on behalf of | ) | |
MLU B.V. | ) | /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxxx |
) | Signature |
SIGNATURE PAGE TO CONTRIBUTION AGREEMENT