This exhibit is an English translation of a foreign language document. The Company hereby agrees to supplementally furnish to the SEC, upon request, a copy of the foreign language document. BANK KASSA NOVA JSC (SUBSIDIARY BANK OF FORTEBANK JSC)...
EXHIBIT 2.01
This exhibit is an English translation of a foreign language
document. The Company hereby agrees to supplementally furnish to
the SEC, upon request, a copy of the foreign language
document.
BANK XXXXX NOVA JSC (SUBSIDIARY BANK OF FORTEBANK JSC)
By and between
FORTEBANK JSC,
And
FREEDOM FINANCE JSC
Dated
July 29, 2020
ORDINARY SHARES PURCHASE AND SALE AGREEMENT
This
Ordinary Shares Purchase and Sale Agreement (as defined below)
(this “Agreement”) is made on July 29,
2020 by and between ForteBank joint stock company incorporated
under the laws of the Republic of Kazakhstan, BIN 990740000683,
located at the Republic of Xxxxxxxxxx, 000000, Nur-Sultan, Yessil
district, Dostyk Str., Bldg. 8/1, duly represented by the Chairman
of Management Board, Xx. Xxxxx Andronikashvili, acting based on the
Charter (“Seller”), and FREEDOM FINANCE
joint stock company incorporated under the laws of the Republic of
Kazakhstan, located at the Republic of Kazakhstan, 050040, Almaty,
Xx-Xxxxxx Xxx., 00/0, XX “Esentai Tower”, 7th floor, duly
represented by the Chairman of Management Board, Xx. Xxxxxx
Xxxxxxxx, acting based on the Charter (“Buyer”), collectively referred to
as the Parties and
individually as a Party.
PREAMBLE
WHEREAS the Seller owns all of the issued and outstanding
ordinary shares ISIN KZ1C00003292 in total of 9 356 140 (Nine
million three hundred fifty six thousand one hundred forty) shares
(the “Ordinary
Shares”), issued by
Bank Xxxxx Nova joint stock company (Subsidiary bank of ForteBank
joint stock company) BIN 090740019001, located at the Republic of
Xxxxxxxxxx, 000000, Nur-Sultan, Yesil district, Xxxxxxxxxxx Xxxxxxx
Xxx., Xxxx. 00 (the “Bank”);
WHEREAS the Bank is the second-tier bank engaged in the
business of commercial banking within the Republic of Kazakhstan
(the “Business”);
WHEREAS the Seller wishes to sell to the Buyer and the Buyer
wishes to purchase from the Seller, the Ordinary Shares subject to
the terms and conditions set forth herein,
The
Parties have agreed as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
Assets means resources controlled by the Bank
as a result of past events, from which the Bank expects economic
benefits in the future.
Affiliate of a Person means any other Person
that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such
Person. The term “control” (including the terms
“controlled by” and “under common control
with”) means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
Audited Financial Statements means the
Bank’s consolidated financial statements with the independent
auditor’s report prepared in accordance with IFRS and
included consolidated statement of financial position of the Bank
as of December 31, 2019, 2018 and 2017, and relevant consolidated
statements of comprehensive income, consolidated statements of
changes in equity and consolidated statements of cash flows for
each year ended December 31, 2019, 2018 and 2017, as well as notes
to the consolidated financial statements, including summary of
significant accounting policies.
Balance Sheet means report of residues in on-balance
and off-balance accounts of the second-tier bank as per Annex 2 to
the Resolution of the National Bank of the Republic of Xxxxxxxxxx
Xx.00 d/d 21.04.2020.
Bank Consultants has the meaning set forth in Section
8.3.
Bank’s Equity means capital of the
Bank as specified in the consolidated statement of financial
position or in the interim condensed consolidated statement of
financial position of the Bank’s Financial
Statements.
Business has the meaning set forth in
the Recitals hereof.
Business Day means any day other than a
Saturday, Sunday or other day on which the second-tier banks
located in Almaty or Nur-Sultan, Republic of Kazakhstan, are
authorized or required by Laws to be closed for
business.
Buyer Confidential Information means all
confidential or proprietary information relating to the business or
operations of the Buyer or its Affiliates, including the Bank,
after Closing, information and data related to sales, marketing,
finance, production, operations, intellectual property, methods of
operation, customers, customer lists, products, prices, costs,
trade secrets, know-how, personnel, suppliers and competitors.
Buyer Confidential Information does not include, and there shall be
no obligation with respect to, information that: (a) is the Seller
Confidential Information; (b) is generally available to the public
or otherwise in the public domain as of the Closing Date; (c)
becomes generally available to the public or otherwise in the
public domain or known to the recipient after the Closing Date,
other than as a result of impermissible disclosure by a Person with
an obligation of confidentiality to the Buyer or its Affiliates;
(d) is developed independently by or for the Seller without use of
or reference to any Buyer Confidential Information and without
violation of any obligation of confidentiality; (e) was already in
the Seller’s possession free of any obligation to keep it
confidential at the time of disclosure; or (f) is subject to
disclosure to the third parties or Governmental Authorities in
accordance with the requirements of applicable laws.
Net Book Value means value of assets on
the Balance Sheet of the Bank as of the date of relevant
transaction, that include (i) for financial assets –
principal debt/nominal, accrued outstanding carry-over rate,
unamortized portion of discount, unamortized portion of premium, as
well as provisions for expected credit losses for financial assets,
and (ii) for non-financial assets – acquisition cost less
accumulated depreciation and impairment.
Closing means exchange of orders for the
Ordinary Shares writing-off of the Seller’s personal account
and placing of the Ordinary Shares to the Buyer’s personal
account with Central Securities Depository JSC pursuant to Article
4 hereof.
Closing Date means date specified in the
Seller’s notice to be given to the Buyer pursuant to Section
3.2, on which there shall be
Closing.
Ordinary Shares has the meaning set
forth in the Recitals hereof.
Contracts means agreement of two or more
persons for establishment, alteration or termination of civil
rights and obligations.
Pledge has the meaning set forth in
Section 9.1.
Encumbrances means limitations of title
arising under the Laws or agreement, and limiting capability of
possession, use or disposition of that property.
Financial Statements means,
collectively, the Audited Financial Statements and the Interim
Financial Statements.
IFRS means the International Financial
Reporting Standards issued by the International Accounting
Standards Board.
AIFC means Astana International
Financial Center JSC.
Indebtedness means without duplication:
(a) the principal of and premium (if any) in respect of all
indebtedness for borrowed money, including accrued interest and any
cost associated with prepaying any such debt; (b) obligation to pay
for fixed assets purchase price; (c) negative balances in bank
accounts; (d) net cash payment obligations under swaps, options,
derivatives and other hedging agreements or arrangements; (e) all
liabilities relating to securitization or factoring programs or
arrangements; and (f) other indebtedness not covered by clauses (a)
to (e) above.
Intellectual Property has the meaning
set forth in Section 5.10.
Interim Financial Statements means
unaudited condensed consolidated financial statements of the Bank
prepared in accordance with International Accounting Standard (IAS)
34 "Interim Financial Reporting" and included the interim condensed
consolidated statement of financial position of the Bank as of the
end of calendar quarter and relevant interim condensed consolidated
statements of comprehensive income, interim condensed consolidated
statements of changes in equity and interim condensed consolidated
statements of cash flows for three, six or nine months of
respective year.
Laws means any ordinance, resolution,
rule, code, order, constitution, agreement, common law, judgment,
other requirement or other legislative act of any Governmental
Authority of the Republic of Kazakhstan.
Leased Real Property means all real
property leased or subleased by the Bank that is used or held for
use primarily in the Business.
Legal Proceedings means dispute being
under consideration in a court or arbitration, as well as dispute
at the stage of pre-arbitration or other pre-court dispute
resolution procedure.
Pool of Loans means outstanding loan at
any time granted by the Bank and applicable warranties given by the
Bank to the Bank’s customers.
Loan Pool Exclusions has the meaning set
forth in Section 8.4.
Losses means expenses incurred by a
Person whose right is violated, loss or damage to the property
(actual damage).
Material Contracts means any written
Contract that: (a) represents an aggregate future liability in
excess of 10% of the Assets
with respect to the Business; (b) contains covenants limiting the
ability of the Bank to engage in any line of business or to compete
with any Person; (c) has as counterparty any Governmental
Authority; (d) relates to the establishment of a joint venture or
partnership; (e) relates to capital expenditures and involves
future payments in excess of 10% of the Assets with respect to the
Business; (f) relates to Indebtedness of the Business in excess of
10% of the Assets; (g) is a lease or similar Contract: (i) entered
into with respect to any tangible personal property and its terms
and conditions provide payment of the amount exceeding 10% of the
Assets (except those which terms and conditions provide early
termination with reasonable notice of termination to be given not
later than 90 (ninety) calendar days prior to the termination date,
without any payments or penalties) or (ii) entered into with
respect to any real property wherein facilities of the Business are
located; (g) relates to any Intellectual Property Agreements or
Intellectual Property Assets; or (h) is otherwise material for the
Business (other than those listed in (a) to (g) above). The value
"10% of Assets" is applied in the cases where otherwise is not
stipulated by the Agreement.
OFAC has the meaning set forth in
Section 5.13.
Owned Real Property means all real
property owned in fee by the Bank.
Personal Data means details relating to
particular or identified personal data subject, recorded on
electronic, paper and/or other physical medium.
Purchase Price has the meaning set forth
in Section 3.1.
Real Property means the Owned Real
Property and the Leased Real Property. At the same time, the term
“Non-core and Real
Property” has the meaning set forth in Section
8.5.
Seller Confidential Information means
all confidential or proprietary information relating to the
business or operations of the Bank of the Seller prior to Closing,
including information and data related to sales, marketing,
finance, production, operations, intellectual property, methods of
operation, customers, customer lists, products, prices, costs,
trade secrets, know-how, personnel, suppliers and competitors.
Seller Confidential Information does not include, and there shall
be no obligation with respect to, information that: (a) is Buyer
Confidential Information; (b) is generally available to the public
or otherwise in the public domain on the Closing Date; (c) becomes
generally available to the public or otherwise in the public domain
or known to the recipient after the Closing Date, other than as a
result of impermissible disclosure by a Person with an obligation
of confidentiality to the Seller or its Affiliates; (d) is
developed independently by or for the Buyer without use of or
reference to any Seller Confidential Information and without
violation of any obligation of confidentiality; (e) was already in
the Buyer’s possession free of any obligation to keep it
confidential at the time of its disclosure; or (f) is subject to
disclosure to the third parties or Governmental Authorities in
accordance with the requirements of applicable Laws.
Seller Disclosure Schedule means
disclosure schedule of the Seller contained in Annex 1
(Seller Disclosure
Schedule) hereto.
Taxes means taxes and other compulsory
payments into the budget.
Tax Claim has the meaning set forth in
Section 10.3(a).
Tax Proceeding has the meaning set forth
in Section 10.3(a).
Tax Reporting means any return,
declaration, report, claim for refund, information return or
statement or other document relating to Taxes, including any
schedule or attachment thereto, and including any amendment
thereof.
Transaction Documents means this
Agreement, the agreement to cession of claims for the Pool of Loans
that shall be entered into pursuant to Section 8.4 hereof, the
Non-core and Real Property Purchase and Sale Agreement that shall
be entered into pursuant to Section 8.5 hereof.
1.2
AFR means the Agency for Regulation and
Development of the Financial Market of the Republic of
Kazakhstan. Interpretation.
For purposes of this Agreement:
(a)
Headings in this
Agreement are for reference only and shall not affect the
interpretation of this Agreement.
(b)
References to
Articles, Sections, Annexes and Schedules are to the Articles,
Sections, Annexes and Schedules in or attached to this
Agreement.
(c)
Annexes are part of
this Agreement and have effect as if set out in full in the body of
this Agreement. Any reference to this Agreement includes the
Annexes.
(d)
References to any
agreement or other document means such agreement or document as
amended or supplemented from time to time, unless specifically
stated otherwise.
(e)
References to Laws
means such Laws as amended from time to time, and include any
successor legislation thereto and any regulations promulgated
thereunder.
(f)
The words
“including” and “includes” shall be deemed
to be followed by the words “without
limitation”.
(g)
The words
“herein”, “hereof”, “hereby”,
“hereto” and “hereunder’ refer to this
Agreement as a whole.
(h)
Nothing contained
in this Agreement shall be basis for interpretation with a view to
prejudice the rights of any party only for the reason that this
party was liable for drafting this Agreement or any part
thereof.
ARTICLE
2
PURCHASE
AND SALE
2.1
Purchase and Sale of the Ordinary
Shares. The Seller undertakes to transfer the Ordinary
Shares into the ownership of the Buyer, and the Buyer undertakes to
accept the Ordinary Shares and to pay the Purchase Price and other
payments pursuant to the terms and procedures as provided
hereby.
ARTICLE
3
PURCHASE
PRICE
(a)
Bank’s Equity
as of June 30, 2020 minus 1
708 416 000 (one billion seven hundred and eight million four
hundred and sixteen thousand) KZT,
(b)
multiply a value
obtained in (a) by 1.1 (one point one tenth),
(c)
subtract a positive difference between
the Net Book Value of the Pool of Loans and actual selling price of
the Pool of Loans from value obtained in (a). If negative value is
obtained as a result of subtraction of actual selling price of the
Pool of Loans from the Net Book Value of the Pool of Loans, its
positive value shall be added to value obtained in
(b),
(d)
subtract a positive difference between
the Net Book Value of the Non-core and Real Property and actual
selling price of the Non-core and Real Property from value obtained
in (c). If negative value is obtained as a result of subtraction of
actual selling price of the Non-core and Real Property from the Net
Book Value of the Non-core and Real Property, its positive value
shall be added to value
obtained in (c).
3.2
Purchase Price Determination. Subject to
fulfillment of conditions contained in Article 11 hereof, except
the Buyer's obligations stipulated in Section 11.1(a)(iv), the
Seller shall give to the Buyer a notice containing the Purchase
Price and settlement procedure, as well as Closing Date. The
Closing Date cannot be the date later than December 28,
2020.
3.3
Payment of Purchase Price. Not later
than within three (3) Business Days preceding the Closing Date the
Buyer shall pay the Purchase Price for Ordinary Shares to the
Seller subject to notice of the Seller received pursuant to Section
3.2 hereof. The funds that are the
Subject of the Pledge (as defined in Section 9.1 hereof) will be
used for the purpose of fulfilling the Buyer's obligations to pay
the Purchase Price.
ARTICLE
4
CLOSING
Subject
to the Buyer's fulfillment of the obligation in accordance with
Section 8.2 of the Agreement hereof and payment by the Buyer of the
Purchase Price pursuant to Section 3.3
hereof, the Closing will take place by issue of orders by the
Parties to Central Securities Depository JSC (hereinafter referred
to as the CD) for
writing-off of the Ordinary Shares of the Seller’s personal
account and placing of the Ordinary Shares to the Buyer’s
personal account with the CD’s accounting system, that will
be at the date specified in the Seller’s notice given to the
Buyer pursuant to section 3.2 hereof.
If purchase and sale of the Ordinary Shares will take place in the
organized securities market or on the AIFC stock exchange, Closing
procedure will be agreed by the Parties separately.
Except
as set forth in the Seller Disclosure Schedule, the Seller
represents and warrants to the Buyer that, to the Seller’s
Knowledge. 3 (three) years preceding the date of this Agreement and
if applicable, all statements contained in Article 5 are true and correct.
5.1
Seller. The Seller is a joint stock
company incorporated under the Laws. The Seller has all rights to
enter into this Agreement and the other Transaction Documents to
which it is a party, and to carry out its obligations
hereunder.
5.2
Bank
and Ordinary Shares
(a)
The Bank is a joint
stock company incorporated under the Laws. The Bank owns and/or
uses and/or disposes property required for the Business. The Bank
is entitled to carry out its business as it has been prior to
conclusion of this Agreement. The Bank is licensed to do business
or other operations.
(b)
The Bank’s
Ordinary Shares consist of 13 500 000 (thirteen million five
hundred thousand) shares, 9 356 140 (nine million three hundred and
fifty six thousand one hundred and forty) shares of which are
issued and outstanding. Issued and outstanding Ordinary Shares
constitute 100% of the Bank’s Ordinary Shares. The Ordinary
Shares are owned by the Seller and free of all Encumbrances. Upon
settlement of the transactions contemplated by this Agreement, the
Buyer shall own all of the outstanding Ordinary Shares. The Bank
has not any Indebtedness in relation to dividends payable on the
outstanding Ordinary Shares.
(c)
The Bank subsidiary
is Limited Liability Partnership “OUSA Nova”
incorporated under the Laws. The Bank has no any subsidiaries other
than LLP “OUSA Nova”.
5.3
Validity. The Ordinary Shares may act as
object of civil law relations in accordance with the requirements
of applicable Laws.
5.4
Financial
Statements
(a)
The Audited
Financial Statements for the periods ended December 31, 2015-2019
have been prepared in accordance with IFRS and complied in all
material respects with the requirements of applicable Laws. With
regard to the Interim Financial Statements for the period ended
June 30, 2020, no facts have been revealed that could serve as a
basis for us to state that the Interim Financial Statements were
not prepared in all material respects in accordance with
International Accounting Standard (IAS) 34 "Interim Financial
Reporting".
(b)
The Financial
Statements fairly present in every material respect discloses the
Assets, liabilities, financial position and profits and losses of
the Bank as of the respective accounting date in accordance with
IFRS.
(c)
After the date of
preparation of the last Interim Financial Statements:
(i)
the Bank has
carried out the business customarily;
(ii)
there were no any
material adverse changes in the Bank’s financial
position.
5.5
Status of the Bank Assets. Except
for non-core property,
the buildings, facilities and equipment owned or leased by the
Bank, book value of which exceeds 30 000 000 KZT (thirty
million) with respect to single property asset, are structurally
operative, in a good shape and suitable for intended
use.
5.6
Reports. The Bank, without material
breach of Laws, has filed or made reports in respect to compliance
with prudential standards to the relevant Governmental Authorities
and AFR, as well as required adjustments thereto, which were
required to be filed or made available by the Bank pursuant to the
laws and regulations of the Republic of Kazakhstan.
5.7
Material Contracts. Seller Disclosure
Schedule contains all Material Contracts in effect on the date of
this Agreement, which are not associated with the banking operation
carried out by the Bank. To the Seller’s Knowledge, there are
no Legal Proceedings with respect to information about Material
Contracts which has not been disclosed to the Buyer. For the
purpose of defining the "Material Contracts" in this Article, the
value "30,000,000 (thirty million) KZT" shall be
applied.
5.8
No AFR’s Instructions. The Bank is
not subject to any supervisory control measures, except those
published on the official AFR’s Internet resource. The Bank
complies, in all material respects, with the prudential and other
binding standards and limits established by the Laws.
5.9
Property
(a)
With respect to all
real and tangible personal property, book value of which exceeds
30,000,000 (thirty million) KZT per unit of the property, recorded
in the Audited Financial Statements, as well as acquired after the
Accounting Date, the Bank has the right of ownership or leasehold,
except for property sold or otherwise alienated after the
Accounting Date in the ordinary course of Business.
(b)
With respect to
Owned Real Property, the Bank has delivered or made available to
the Buyer all true, complete and correct copies of the deeds and
other instruments by which the Bank acquired the Owned Real
Property. In addition, the Bank has delivered or made available to
the Buyer the copies of all insurance policies for all Owned Real
Assets (if any).
(c)
With respect to
Leased Real Property, the Bank has delivered and made available to
the Buyer all true, complete and correct copies of each lease
affecting the Leased Real Property.
(d)
To the Bank’s
Knowledge, the use of the Real Property owned by the Bank does not
violate any material requirements of the Laws.
5.11
Taxes. The Bank has duly and timely filed
applicable Tax Returns in all jurisdictions where such Tax Returns
are required to be filed, and all such Tax Returns are true and
complete in all material respects, based on the interpretation of
Law standards by the Bank applicable at the time of performance of
the relevant tax liability. All Taxes of the Bank have been fully
and timely paid, based on the interpretation of Law standards by
the Bank applicable at the time of performance of the relevant tax
liability. The Bank acting as withholding agent has calculated,
withheld and paid all Taxes required to be withheld and paid in
connection with amounts paid or owing to any employee, creditor,
shareholder, counterparty or other third party. The Bank has not
any unresolved or pending disputes, claims, audits, examinations or
other procedural actions or proceedings regarding any Tax of the
Bank, or its Assets, except the ones designated in Annex 5. The
Bank has not been involved in any transaction or series of
transactions the main purpose, or one of the main purposes of
which, was the avoidance of Tax, or any transaction that produced a
loss for Tax purposes with no corresponding commercial or economic
loss. At no time during the past 5 (five) years has the Bank been a
United States real property holding corporation (including share in
the mine, well or other natural deposit) located within the USA or
Virgin Islands, or any other participation (except those as
creditor) in any United States corporation.
5.12
Labor conditions. The employment
agreements have been entered into with all of the current
employees, including the Bank's executive employees, providing
payments and compensations in accordance with the Law. Moreover,
the Seller Disclosure Schedule contains information on remuneration
of labor of the Bank employee to which specific wage conditions are
applied.
5.13
OFAC. The Seller is not a Person who a
United States Person is restricted from doing business under
regulation of Office of Foreign Asset Control (“OFAC») (including those named on
OFAC’s Specially Designated and Blocked Persons List), or
under any statute, executive order or other governmental actions.
To the Seller’s Knowledge, the Seller is not engaged in any
transactions, is not Affiliate with any Person who a United States
Person is restricted from doing business under regulation of OFAC
or under any statute, executive order or other governmental action.
The Buyer has informed the Seller that the Buyer can be prohibited
by operation of law to conduct operations contemplated by this
Agreement, if the Seller will be identified as a Person engaging in
or has engaged in transactions with a Person or Persons who a
United States Person is restricted from doing business under
regulation of OFAC.
5.14
Insurance. The Bank has obligatory
insurance policies in force under applicable Laws. The Bank is
insured with insurers against such risks and in such amounts as the
management of the Bank reasonably has determined to be prudent and
consistent with industry practice, and the Bank is in compliance in
all material respects with their insurance policies and is not in
default under any of the terms thereof.
5.15
Securities. The Bank has good title to
all securities owned by it, which are material to its Business on a
consolidated basis. Such securities are free and clear of any
Encumbrances except those sold under repurchase agreements, and
except to the extent such securities are pledged in the ordinary
course of Business to secure obligations of the Bank. Such
securities are valued on the books of the Bank in accordance with
IFRS in all material respects.
5.16
Brokers. Except where the Ordinary
Shares will be purchased and sold in the organized securities
market or on the AIFC exchange, no Person has acted, directly or
indirectly, as a broker, intermediary or financial advisor of the
Seller in connection with the transactions contemplated by this
Agreement, and no Person is entitled to any fee, commission or like
payment in respect thereof.
5.17
Employment Matters. As of the date of
this Agreement, the Seller confirms that the Bank has no Legal
Proceedings regarding compliance of the Bank with Labour
Laws.
5.18
Legal
Proceedings. There
are no Legal Proceedings pending or, to Seller's Knowledge,
threatened that are reasonably likely to prohibit or restrain the
ability of the Seller to enter into this Agreement or perform the
transactions contemplated hereby.
The
Buyer represents and warrants to the Seller that, to the
Buyer’s Knowledge, 3 (three) years preceding the date of this
Agreement all statements contained in this Article 6 are true and correct as of the date
hereof and on the Closing Date.
6.1
Buyer. The Buyer is a joint stock
company incorporated under the Laws. The Buyer has all rights to
enter into this Agreement and other Transaction Documents to which
it is a party, and to carry out its obligations
hereunder.
6.2
Supervisory Control Measures. The Buyer
is not subject to any supervisory control measures, except those
published on the website of AFR. The Buyer is not in the state of
insolvency.
6.3
Purchase
Price
(a)
The Buyer has the
funds required for carrying out the obligations hereunder. Such
funds are free and clear of any Encumbrances and/or third party
claims.
(b)
The funds required
for carrying out of the Buyer’s obligations hereunder have
been received by the Buyer in a lawful way in the ordinary course
of entrepreneurial business in compliance with applicable rules and
regulations regarding anti-money laundering and financing of
terrorism and anti-corruption.
6.4
OFAC. The Buyer is not a Person who is
restricted from doing business with a United States Person under
the OFAC regulations (including those named on OFAC’s
Specially Designated and Blocked Persons List), or under any
statute, executive order or other governmental actions. To the
Buyer’s Knowledge, the Buyer is not engaged in any
transactions, is not Affiliate with any Person who is restricted
from doing business with a United States Person under regulation of
OFAC or under any statute, executive order or other governmental
action. The Buyer agrees that the Seller can be prohibited by
operation of law to conduct operations contemplated by this
Agreement, if the Buyer will be identified as a Person engaging in
or has engaged in transactions with a Person or Persons who is
restricted from doing business with a United States Person under
regulation of OFAC.
6.5
Brokers. Except where the Ordinary
Shares will be purchased and sold in the organized securities
market or on the AIFC exchange, no Person has acted, directly or
indirectly, as a broker, intermediary or financial advisor of the
Buyer in connection with the transactions contemplated by this
Agreement, and no Person is entitled to any fee, commission or like
payment in respect thereof.
6.6
Organization and Authority of the Buyer.
The Buyer is a joint stock company duly registered under the Laws.
The Buyer has full power to enter into this Agreement and the other
Transaction Documents to which it is a party, to carry out its
obligations hereunder.
6.7
Conflicts; Consents of Third Parties.
The execution, delivery and performance by the Buyer of this
Agreement and the other Transaction Documents, and the performance
of the transactions contemplated hereby and thereby, do not and
will not: (a) conflict with or result in a violation or breach of,
or default under, any provision of the certificate of
incorporation, by-laws or other organizational documents of the
Buyer; (b) conflict with or result in a violation or breach of any
provision of any Law or Governmental Order applicable to Buyer; (c)
conflict with or result in a violation or breach of any provision
of any agreements, arrangements, securities and other transactions
to which the Buyer or its Affiliates are party or
issuer.
6.8
Legal
Proceedings. There
are no Legal Proceedings pending or, to Buyer's Knowledge,
threatened that are reasonably likely to prohibit or restrain the
ability of the Buyer to enter into this Agreement or perform the
transactions contemplated hereby.
ARTICLE
7
COVENANTS
RELATING TO CONDUCT OF BUSINESS
7.1
Affirmative Covenants. During the period
from the date of this Agreement to the Closing Date or earlier
termination of this Agreement, except as set forth in the Seller
Disclosure Schedule, and except as expressly contemplated or
permitted by this Agreement, or which disclosure is expressly
prohibited by Law or agreement, the Seller undertakes to provide a
notice by the Buyer’s Bank of the following transactions and
actions of the Bank within five (5) Business Days from the date of
the transaction or occurrence of an event:
(a)
transaction, other
than business or banking operations of the Bank in excess of 30
000 000 (thirty million) KZT;
(b)
indebtedness for
borrowed money (other than Indebtedness of the Bank) of any
individual, corporation or other person, performance guarantees
thereof, other obligations thereof, except for deposits to be
accepted in the ordinary course of business;
(c)
except for
distribution and payment of dividends upon preferred shares,
declaration and payment of any dividend, directly or indirectly
redeem any shares or other securities;
(d)
alienation of the
Bank’s property in excess of 5 000 000 (five million) KZT to
any individual or corporation, or release or assignment of
Indebtedness to any such person, in each case other than in the
ordinary course of Business, or pursuant to contracts or agreements
in force at the date of this Agreement or as otherwise contemplated
by this Agreement;
(e)
establishment of
the Bank’s subsidiaries, except for equity interests and
shares to be acquired by the Bank for disposal of pledged
property;
(f)
except as required
under applicable Laws (i) upward amendment of Benefit Plan, except
those in the ordinary course of business consistent with past
practice; (ii) increase in compensation or benefits payable to any
current or former employee, officer, director or individual
consultant other than increases to current employees and officers,
(x) in connection with a promotion or change in responsibilities,
and to a level consistent with similarly situated peer employees,
(y) in the ordinary course of business consistent with past
practice, or (z) compensation for completed performance periods
based upon corporate performance, the performance of such employee
and, if applicable, such employee's business; (iii) acceleration of
vesting of any equity-based awards or other compensation; (iv)
entering into any new, or amendment of any existing, employment
agreements, except those in the ordinary course of
Business;
(g)
pre-court
settlement of claims, except involving solely monetary remedies in
an amount that individually is not material to Bank, and that would
not impose any material restriction on, or create any adverse
precedent that would be material to, the Business;
(h)
amendment of
Articles of Incorporation, except as required by applicable
Laws;
(i)
introduction or
adoption of any amendments to applicable accounting principles,
practices or methods, other than as may be required by
IFRS;
(j)
entering into any
new line of business, other than in the ordinary course of business
consistent with past practice (which may include partnering with
third parties in origination, flow, servicing and other
capacities), and introduction of material changes in the lending,
investment, underwriting, risk and asset liability management and
other banking and operating, securitization and servicing policies
(including any change in the maximum ratio or similar limits as a
percentage of the Bank’s capital exposure applicable with
respect to the Bank’s loan portfolio or any segment thereof),
except as required by applicable Laws, regulation or policies
established by the regulator or the Bank’s development plans
approved up to the date of this Agreement;
(k)
amendment of annual
Tax Reporting period, adoption of new or amendment to existing Tax
accounting method, filing of any materially amended Tax Return,
entering into any closing agreement with respect to a material
amount of Taxes (in excess of 30 000 000 (thirty million) KZT), or
settlement of any material Tax claims, audits, assessments, and
contestation or waiver of any material right to claim a refund of
Taxes, except for enforcement of court or arbitration
decisions;
(l)
the Bank assumes
Liquidity Placement Restrictions as per Annex 2 (Liquidity Placement Restrictions)
hereto.
7.2
Notice pursuant to
Section 7.1 shall be given by e-mail to the following address:
xxxxxx_xxxxxxxxx@xxxx.xx.
ARTICLE
8
ADDITIONAL
COVENANTS
8.1
Governmental Approvals; Consents.
Subject to all provisions of Section 8.9 hereof, the Buyer shall obtain governmental
consents with respect to this Agreement, namely, to obtain consent
to economic concentration and status of banking holding. The Seller
shall use reasonable best efforts to submission of the Bank
documents required for the Buyer.
8.2
Funds. Within three (3) calendar days
from the date of receival of governmental consents but no later
than December 23, 2020, the Buyer shall allocate funds on its
account opened with the Seller in the amount of the Purchase Price
specified in the Seller's notification sent to the Buyer pursuant
to the Section 3.2 hereof minus the Subject of the Pledge. Such
funds will be used by the Buyer to pay the Purchase Price to the
Seller for Ordinary Shares in accordance with the terms and
conditions hereof.
8.3
Bank Consultants. During the period from
the date of this Agreement to the Closing Date or early termination
of this Agreement, the Buyer shall have the right to appoint two
representatives of the Buyer, who, in their turn, will be appointed
as internal bank consultants (the “Bank Consultants”), and
will be entitled to participate without voting rights in meetings
of the Bank’s Board of Directors, Management Board, and all
operating committees of the Bank. The Bank Consultants will not be
appointed to the positions of executive or non-executive directors
of the Bank, but will have an access to sensitive and trade secret
information. The Bank Consultants will enter into employment
agreements with the Bank contemplating minimum wage, and
confidentiality agreements that will contemplate full material
responsibility of the Bank Consultants for disclosure of the
information obtained during the validity of the employment
agreements.
8.4
Purchase of Pool of Loans. Not later
than the Closing, the Seller undertakes to purchase the Pool of
Loans of the Bank from the Bank, except for (i) issued guarantees
secured by money pledge and bid bond guarantees, (ii) granted loans
to be fully secured by money pledge, and (iii) credit cards and
debit card overdrafts (collectively (i), (ii) and (iii) referred to
as the “Loan Pool
Exclusions”), set forth in Annex 3 (Loan Pool Exclusions) hereto. However,
the Buyer understands and agrees that acquisition of the
Encumbrance right with respect to Pool of Loans can be exercised
after the Closing. In such a case, the Buyer undertakes to provide
full and comprehensive assistance in re-registration of the
Encumbrance, transfer and custody of the documents related to the
Pool of Loans, particularly: (i) to obtain relevant consents,
permits and notices of counterparties/creditors/borrowers for
assignment of claims, and to provide full assistance to the Seller
in case of refusal of a borrower to enter into respective
contracts/agreements with the Seller (particularly, in connection
with legal actions of the borrowers/pledgers or other
rights/encumbrances/restrictions) and/or in connection with the
borrower fail the adequate verification as required by applicable
Laws (including anti-money laundering and financing of terrorism);
(ii) together with the Seller, to give written notices to the
borrowers of completed assignment of claims. However, the Parties
agreed that the Buyer provides such assistance based only on the
documents that are available in the Bank as of the Closing
Date.
8.5
Purchase of Non-core and Real Property.
Not later than the Closing Date, the Seller undertakes to provide
acquisition of Non-core and Real Property of the Bank by subsidiary
of the Seller from the Bank, list of property is specified in Annex
4 (Non-core and Real
Property) hereto (the “Non-core and Real
Property”).
8.6
EBRD, ADB, DAMU. Prior to the Closing
Date, the Seller undertakes:
(a)
to ensure
extinction of the Bank’s obligations to European Bank for
Reconstruction and Development (“EBRD”), and Asian
Development Bank (“ADB”),
(b)
to ensure transfer
of the Bank’s obligations to Damu Entrepreneurship Fund JSC
(“DAMU”) to the
Seller or a Person designated by the Seller.
8.7
Legal
Opinion
(a)
Not later than
three (3) Business Days prior to the Closing Date, the Seller shall
obtain a legal opinion from Kazakhstani legal firm that confirms
obtaining of, or absence of necessity for obtaining of all required
permits and corporate approvals from the Seller and relevant
Governmental Authorities for entering into and performance of this
Agreement and other Transaction Documents.
(b)
Not later than
three (3) Business Days prior to the Closing Date, the Seller shall
obtain legal opinions from USA and RF (Russian Federation) legal
firms confirming obtaining of, or absence of necessity for
obtaining of all required permits and corporate approvals from
shareholders of the Buyer registered in the USA and RF, and
relevant Governmental Authorities for entering into and performance
of this Agreement, other Transaction Documents and other
transactions arising out of this Agreement.
Legal
firms and text of legal opinions shall be agreed by the Seller and
the Buyer in advance.
8.8
Confidentiality
(a)
For a period of two
(2) years after the Closing Date, the Seller shall not (and
undertakes to ensure compliance with such obligation by its
Affiliates), directly or indirectly, disclose or communicate to any
Person other than authorized Representatives of the Buyer or its
Affiliates, or use or otherwise exploit for its own benefit or for
the benefit of anyone other than the Buyer or its Affiliates, any
Confidential Information of the Buyer. The Seller and its
Affiliates shall not have any obligation to keep confidential any
Buyer’s Confidential Information to the extent disclosure is
required by Laws, in which case the Seller shall, to the extent
reasonably possible, provide the Buyer with prompt
notice.
(b)
For a period of two
(2) years after the Closing Date, the Buyer shall not (and
undertakes to ensure compliance with such obligation by its
Affiliates), directly or indirectly, disclose or communicate to any
Person other than authorized Representatives of the Seller or its
Affiliates, or use or otherwise exploit for its own benefit or for
the benefit of anyone other than the Seller or its Affiliates, any
Seller’s Confidential Information. The Buyer and its
Affiliates shall not have any obligation to keep confidential any
Seller’s Confidential Information to the extent disclosure is
required by Laws, in which case the Buyer shall, to the extent
reasonably possible, provide the Seller with prompt
notice.
(a)
to obtain consent
of the Committee on Regulation of Natural Monopolies, Protection of
Competition and Consumers of the Ministry of National Economy of
the Republic of Kazakhstan to economic concentration by acquisition
of the Ordinary Shares, or official confirmation of the Committee
that such consent to acquisition by the Buyer of the Ordinary
Shares is not required;
(b)
to obtain consent
of AFR to incorporation of banking holding;
(c)
to make available
to the Seller the notarized copies of consent and permit in (a) and
(b) above not later than three (3) Business Days from the date of
their receipt.
In case
of delay in obtaining of the Governmental Approvals, the Parties
undertake to agree conditions for extending deadline for two (2)
additional calendar months.
8.10
Preservation
of Books and Records
(a)
The Seller shall
have the right to retain copies of all books and records of the
Business (including books and records of the Bank) relating to
periods ending on or prior to the Closing Date, provided that such
books and records are kept confidential in accordance with the
Seller's normal confidentiality procedures.
(b)
The Buyer shall
preserve and keep, or cause to be preserved and kept, the books and
records of the Business (including books and records of the Bank)
in the possession of the Buyer, the Bank or their Affiliates during
any applicable statute of limitations as required by
Laws.
8.11
Operation of the Bank Post-Closing. For
a period of one year following the Closing Date, neither Buyer nor
its Affiliates shall take any action that would cause any of the
following events:
(a)
categorization of
the Bank as insolvent;
(b)
filing of a
petition in bankruptcy and/or rehabilitation of the
Bank;
(c)
obtaining of a
court order requiring compulsory liquidation of the
Bank;
(d)
suspension of
action or revoking of banking license and/or attachment
thereto.
The
Buyer undertakes to indemnify the Seller for all Losses, to
eliminate violations of the Seller’s non-property rights that
could arise in connection with the Business after the Closing
Date.
ARTICLE
9
PLEDGE
9.1
Pledge. The Buyer provides the Seller
with funds in the amount of 1,800,000,000 (one billion eight
hundred million) KZT (hereinafter - the "Pledge Subject") as a
pledge to secure the fulfillment of all Buyer's obligations
hereunder (hereinafter - the "Pledge").
9.2
Type of Pledge. The Pledge is a deposit,
the Pledgee is not entitled to dispose of the Pledge Subject before
enforcement thereof in accordance with Section 9.4. The Pledge
Subject should be transferred by the Buyer to the Seller within
five (5) Business Days from the date of entry into force of this
Agreement by wire transfer to the Seller's account and should
remain in the Seller's possession for the entire duration of the
obligations secured by the Pledge.
9.3
Scope and Form of Pledge. In order to
comply with paragraph 1 of Article 307 of the Civil Code of the
Republic of Kazakhstan:
(a)
pledge subject: the
term of the "Pledge Subject" is defined in Section 9.1 hereof the
Agreement;
(b)
the nature of the
obligations secured by the Pledge: all Buyer's obligations
hereunder, as well as under other transactions and documents
executed pursuant to and (or) in connection with the
Agreement;
(c)
value, maximum
amount of liabilities secured by the Pledge: 18,000,000,000
(eighteen billion) tenge;
(d)
maturity of the
obligations secured by the Pledge: December 31, 2020, but not
earlier than the Buyer fulfills its obligations hereunder, as well
as under other transactions and documents executed pursuant to and
(or) in connection with the Agreement.
9.4
Enforcement of the Pledge Subject. The
Pledge Subject is enforced without legal proceedings. The Subject
of the Pledge is disposed as follows:
(a)
in the event that
the Buyer breaches obligations hereunder, the Seller shall demand
the Buyer to fulfill its obligations and designates a time limit
for such fulfillment;
(b)
in the event that
the Buyer fails to fulfill its obligations within the time
designated in the Seller's claim pursuant to the Section 9.4(a)
above, the Seller notifies the Buyer of the satisfaction of the
Seller's claims at the expense of the Pledge Subject and,
accordingly, the decrease in the Pledge Subject, which is subject
to refund upon the Buyer has fulfilled all obligations
hereunder;
(c)
from the date of
the Seller's foreclosure notice pursuant to the Section 9.4(b)
above, the Seller shall acquire the right to own, use and dispose
of the Pledge Subject for the amount designated in such
notice.
ARTICLE
10
TAX
MATTERS
10.1
Ordinary Share Transfer Tax. Each Party
shall bear expenses incidental to the Ordinary Shares transfer
taxes and duties, arising out of or in connection with this
Agreement and other Transaction Documents.
10.2
Tax
Indemnification
(a)
When signing this
Agreement, the Seller confirms that to the Seller’s
Knowledge, there is no information that would indicate the Bank's
Interim Financial Statements as of June 30, 2020 as the result of
review report with independent auditor, “Ernst &
Young” LLP, does not contain in all material respects the
correct taxation-related information.
(b)
Supplementary Tax
Risks associated with taxation matters for the tax periods ended
December 31, 2016-2020, to the fullest extent shall be incurred by
the Bank and indemnified by the Seller pursuant to the written
request of the Bank to which effective requirements of the final
court decision are attached (Supreme Court of the Republic of
Kazakhstan, if applicable). Total liability of the Seller hereunder
shall not exceed 1,000,000,000 KZT (one billion) KZT for tax
periods ended December 31, 2016-2018.
10.3
Protection
of Interests in Tax Proceedings (Contests)
(a)
Not later than one
(1) calendar day upon receipt by the Bank of the notice on any
Legal Tax Proceeding (“Tax
Proceeding”), for which the Seller may reasonably be
expected to be liable to other party pursuant to Section 10.2 (a
“Tax Claim”),
the Buyer shall give the Bank’s prompt written notice to the
Seller of such Tax Claim.
(i)
The Seller will
ensure timely submission by the Bank to the Seller of all required
documents and information concerning the merits of Tax Proceeding,
including power of attorney to represent the interests of the
Bank;
(ii)
The Seller shall
keep Buyer informed with respect to the status of any such Tax
Proceeding;
(c)
If the Seller
decides not to represent its interest or the interest of the Bank
in any such Tax Proceeding, the Buyer or the Bank are entitled to
represent themselves on such Tax Proceeding whereby provision of
Seller's written consent shall not be unreasonably paused or
retarded.
(d)
In case of failure
to comply with the provision of Section 10.3(b), the Bank and/or the Buyer will not
have the right to claim from the Seller any indemnification with
respect to Tax Proceeding.
ARTICLE
11
CONDITIONS
TO CLOSING
11.1
Conditions. Obligations in respect of
purchase and sale of the Ordinary Shares hereunder shall be carried
out, provided that banking license of the Bank is valid and not
revoked, and upon fulfillment of the following
conditions:
(i)
obtaining of the
governmental approvals pursuant to Section 8.9;
(ii)
obtaining of
required corporate consents and approvals to entering into and
performance of this Agreement, transactions contemplated by this
Agreement and other Transaction Documents;
(iii)
lodging of Pledge
pursuant to the Article 9;
(iv)
investment of funds
on the Buyer’s account opened with the Seller pursuant to
Section 8.2;
(v)
obtaining of legal
opinions pursuant to Section 8.7(b).
(i)
obtaining of
required corporate consents and approvals to entering into and
performance of this Agreement, transactions contemplated by this
Agreement and other Transaction Documents;
(ii)
obtaining of legal
opinion pursuant to Section 8.7(a);
(iii)
carrying out of
obligations pursuant to Sections 8.4 and 8.5.
(c)
The Parties shall
inform each other according to fulfillment of the conditions
contemplated by 11.1(a) and 11.1(b) above with attachment of originals or
notarized copies of the documents confirming their fulfillment.
Texts of the corporate consents and approvals shall be agreed by
the Seller and the Buyer in advance.
ARTICLE
12
INDEMNIFICATION
12.1
Survival. The representations and
warranties of the Parties contained herein shall remain in full
force and effect until the Closing Date.
12.2
Certain Limitations. Provisions of this
Agreement concerning Indemnification shall be subject to the
following limitations:
(a)
The Seller shall
not be liable to the Buyer for indemnification until the aggregate
amount of all Losses requiring indemnification exceeds 60 000 000
KZT (sixty million), in the event of reaching it the Seller shall
be liable for all such Losses in excess of the amount
above.
(b)
The Buyer shall not
be liable to the Seller for indemnification until the aggregate
amount of all Losses requiring indemnification exceeds 60 000 000
KZT (sixty million), in the event of reaching it the Buyer shall be
liable for all such Losses in excess of the amount
above.
12.3
Loss of Profits. Loss of Profits shall
not be subject to indemnification by the Parties
hereunder.
ARTICLE
13
TERMINATION
13.1
Termination. This Agreement may be
terminated prior to the Closing Date:
(a)
By mutual written
consent of the Seller and the Buyer;
(b)
By the Buyer: by
written notice to the Seller, if any of the conditions specified in
Section 11.1(b) hereof are not
fulfilled by December 23, 2020;
(c)
By the Seller: by
written notice to the Buyer, if any of the conditions specified in
Section 11.1(a) hereof and/or in
Article 7.1 (a) of the Bank's Preference Shares Purchase and Sale
Agreement dated _______, 2020 are not fulfilled by December 23,
2020;
(d)
By the Buyer or the
Seller, if any Governmental Authority issues any Governmental Order
restraining or prohibiting the transactions contemplated by this
Agreement;
(e)
The Parties agree
that subject to declaration of emergency rule or quarantine over
the whole territory of the Republic of Kazakhstan and/or in Almaty
and/or Nur-Sultan, the deadline for fulfillment of the obligations
shall be suspended for the duration of such emergency rule or
quarantine, provided that such quarantine or emergency rule affects
the deadline for fulfillment by the Parties of their
obligations.
13.2
Effect of Termination. In the event of
the termination of this Agreement:
(a)
By the initiative
of the Buyer, pursuant to Section 13.1(b), the Seller undertakes to pay to the
Buyer an amount of 1 800 000 000 KZT (one billion eight hundred
million) by wire transfer of funds to the Buyer’s account
specified by the Buyer, and also immediately return the Pledge
Subject to the Buyer;
(b)
By the initiative
of the Seller, pursuant to Section 13.1(c), the Buyer undertakes to pay to the
Seller an amount of 1 800 000 000 KZT (one billion eight hundred
million) by wire transfer of funds to the Seller’s account
specified by the Seller.
Therewith, the
provisions of this Agreement contained in Article 8.8, Article 9
and Section 13.2(b) shall survive.
ARTICLE
14
MISCELLANEOUS
14.1
Validity of Agreement. This Agreement
shall become effective from the date of receipt of the corporate
consents to entering into and performance of this Agreement and
other transactions arising out of or in connection with this
Agreement by the Buyer and the Seller, and shall remain in full
force and effect until the Parties fully fulfill their
obligations.
14.2
Expenses. Except as otherwise provided
in this Agreement or other Transaction Documents, the Seller, on
the one hand, and the Buyer, on the other hand, shall bear their
own expenses incurred in connection with the negotiation and
execution of this Agreement, the other Transaction Documents, or
any other agreement, document contemplated by this Agreement, as
well as performance of the transactions stipulated by this
Agreement and aforementioned documents. The Buyer shall bear all
expenses for payment of registration and other fees in connection
with registration or submission of the documents with any
Governmental Authority.
14.3
Notices. All notices, requests,
consents, claims, demands, waivers, and other communications
hereunder shall be in writing and shall be deemed to have been
given: (i) when delivered, if delivered personally to the intended
recipient (or when left at the correct address); (ii) when received
by the addressee, if sent by a recognized courier service; (iii) on
the date sent by email (with confirmation of receipt of the email
and any attachments) if sent during normal business hours of the
recipient, and on the next Business Day if sent after normal
business hours of the recipient; or (iv) on the fifth (5) Business
Day after the date mailed, postage prepaid. Such communications
must be sent to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a
notice given in accordance with this Section 14.3):
(a)
when sending
correspondence to the Seller:
ForteBank
Joint Stock Company
Republic of
Xxxxxxxxxx, 000000, Nur-Sultan, Yesil district, Dostyk Str., Bld.
8/1
E-mail:
xxxx@xxxxxxxxx.xxx
To:
Chairman of the Management Board
(b)
when sending
correspondence to the Buyer:
Freedom
Finance JSC
Republic of
Xxxxxxxxxx, 000000 Almaty,
00/0
Xx-Xxxxxx Xxx., XX “Esentai Tower”, 7th floor
E-mail:
xxx@xxxx.xx
To:
Chief Financial Officer
14.4
Separability. If any term or provision
of this Agreement is invalid, illegal, or unenforceable in any
jurisdiction, such invalidity, illegality, or unenforceability
shall not affect any other term or provision of this Agreement in
such jurisdiction. In addition, such circumstances shall not be the
ground for recognition of this Agreement invalid or unenforceable
as a whole.
14.5
Entirety. This Agreement and the other
Transaction Documents constitute the entire agreement, and
supersedes all prior agreements and understandings (both written
and oral), among the Parties regarding the subject matter hereof.
If there is an inconsistency between the statements in the body of
this Agreement and those in the other Transaction Documents, the
Exhibits and Schedules, the provisions of this Agreement shall
prevail.
14.6
Successors and
Cessionary. This
Agreement is binding upon and drawn up to the benefit of the
Parties hereto and their respective successors and permitted
cessionaries. Except as provided by this Agreement, neither Party
may assign its rights or obligations hereunder without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld or delayed; provided that prior to the
Closing Date the Buyer may, with the prior written consent of the
Seller, assign all or any portion of its rights under this
Agreement to one or more of its direct or indirect wholly-owned
subsidiaries, or direct or indirect shareholders or any third
parties without changing the due date of the Closing Date specified
in Section 3.2 hereof.
14.7
Amendment and Waiver. This Agreement may
only be amended, modified or supplemented by an agreement in
writing signed by each Party hereto. No waiver by any Party of any
of the provisions hereof shall be effective unless explicitly set
forth in writing and signed by the Party so waiving. No waiver by
any Party shall operate or be construed as a waiver in respect of
any failure, breach or default not expressly identified by such
written waiver, whether of a similar or different character, and
whether occurring before or after that waiver. No failure to
exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement shall operate or be construed
as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
14.8
Governing Law and Submission to
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the Laws. All disputes hereunder shall
be resolved in the courts of the Republic of Kazakhstan. The courts
of the Republic of Kazakhstan shall have exclusive jurisdiction to
settle any dispute or claim between the Parties hereto, whether
they are issue of law or equity, arising out of or in connection
with this Agreement or contracts, transactions, instruments or
documents as contemplated by this Agreement. The Parties hereby
agree to submit to exclusive jurisdiction of the courts of the
Republic of Kazakhstan. Each Party hereby waives and agree not to
declare in any dispute, insofar as permitted by Laws, any claim,
that:
(a)
the Party fails to
submit to jurisdiction of the courts of the Republic of
Kazakhstan;
(b)
the Party and its
property is immune from any legal act adopted by a court of the
Republic of Kazakhstan; and
(c)
each legal or other
proceeding to be held in the courts of the Republic of Kazakhstan
is the improper way of resolution of a dispute between the
Parties.
In
furtherance of aforesaid, each of the Parties shall agree that it
will not declare or support any action of its parent company or its
business owner or a person granted finance to the Buyer (for
entering into and performance of this Agreement), or their
representatives, or actions of the Parties against any of the above
persons in any way related to this Agreement or any transaction
contemplated by this Agreement, including, but not limited to
disputes arising out of or in any way related to any legally
binding document or to execution of such document in any place and
way of dispute resolution, except for the courts of the Republic of
Kazakhstan.
14.9
Language. This Agreement is made in
Russian and Kazakh, and interpretation of the Agreement in Russian
shall prevail.
14.10
Counterparts. This Agreement is made in
two (2) copies having equal power, one for each of the
Parties.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed as of the date specified in the Preamble by their
respective duly authorized officers.
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ForteBank
JSC
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FREEDOM
FINANCE JSC
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/s/
Guran Andronikashvili
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/s/
Xxxxxx Xxxxxxxx
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Name:
Guram Andronikashvili
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chairman of Management Board
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Title:
Chairman of Management Board
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