Contract
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.
Exhibit 4.2
7 February 2018
(As amended and restated on 9 September 2020)
and
UBER INTERNATIONAL C.V.
and
STICHTING MLU EQUITY INCENTIVE
and
MLU B.V.
SHAREHOLDERS' AGREEMENT IN RELATION TO MLU B.V. |
TABLE OF CONTENTS
THIS AGREEMENT (this "Agreement") is made as a DEED on 7 February 2018:
BETWEEN:
| (1) | YANDEX N.V., a limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands, having its registered office at Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands, registered with the trade register of the Chamber of Commerce under number 27265167 ("Yandex"); |
| (2) | UBER INTERNATIONAL C.V., a limited partnership (commanditaire vennootschap) formed under the laws of the Netherlands, having its registered office at Mr. Xxxxxxxxx 0, 0000 XX Xxxxxxxxx (Xxx Xxxxxxxxxxx), registered with the trade register of the Chamber of Commerce under number 58046143 ("Uber"); |
| (3) | STICHTING MLU EQUITY INCENTIVE, a foundation (stichting) incorporated under the laws of the Netherlands, having its registered office at Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands, registered with the trade register of the Chamber of Commerce under number 70818614 (the "Foundation"); and |
| (4) | MLU B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands, having its registered office at Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands, registered with the trade register of the Chamber of Commerce under number 69160899 (the "Company"), |
(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).
| (D) | Immediately following Completion and the consummation of the Secondary Sale and the Roll-Over, the issued share capital of the Company will be USD 2,254,667, divided into [***] A Shares with a nominal value of USD 0.10 each and [***] B Shares with a nominal value of USD 0.10 each, and the entire issued share capital will be held as follows: |
| (i) | Yandex shall hold [***] B Shares, representing [***] of the issued share capital of the Company; |
| (ii) | Uber shall hold [***] B Shares, representing [***] of the issued share capital of the Company; and |
| (iii) | the Foundation shall hold [***] A Shares, representing [***] of the issued share capital of the Company. |
(E)It is intended that the Group shall carry on the Group Business.
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| (F) | The Parties acknowledge that the Foundation is a Party to this Agreement solely for the purposes of Clauses 5.3 (Appointment and removal of Managing Directors), 6.6 (Appointment and removal of Supervisory Directors), 9 (Decisions of Shareholders of the Company), 11 (Reserved Matters), 19 (Transfers of Shares), 27 (Notices), 28 (Term), 28 (Announcement and Confidentiality), 29 (Miscellaneous), 31 (Governing Law and Dispute Resolution) and 32 (Process Agent). |
| (G) | The Parties have agreed to make provision for the management and administration of the affairs of the Group on the terms and conditions set out in this Agreement. |
IT IS AGREED as follows:
| 1. | DEFINITIONS AND INTERPRETATION |
"Acceptance Period" has the meaning given in Clause 18.3.3;
"Affiliate" means in relation to any person, any other person directly or indirectly Controlled by, or Controlling of, or under common Control with, that person provided that, for the purposes of this Agreement, neither the Company nor any Group Company is to be regarded as an Affiliate of a Shareholder;
"Anti-Dilution Shares" has the meaning given in Clause 18.11;
"Applicable Law" means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any competent Governmental Authority and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to the Parties or any of them, any Group Company, or as the context requires;
"Applicable Tax Legislation" means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction related to Tax, in each case to the extent applicable to the Parties or any of them, any Group Company, or as the context requires;
"Approved Auditor" means, subject to conflicts, any one of EY, PricewaterhouseCoopers, KPMG, Deloitte or such other reputable international audit firm as agreed by the Shareholders from time to time;
"Articles" means the articles of association of the Company as amended from time to time;
"A Shares" means the A ordinary shares of USD 0.10 each in the capital of the Company, each carrying one (1) vote per share;
"B Shares" means the B ordinary shares of USD 0.10 each in the capital of the Company, each carrying ten (10) votes per share;
"Breach Notice" has the meaning given in Clause 26.1;
"Budget" means with respect to the 2018 financial year and each subsequent financial year, the budget of the Group for the particular financial year (in a format approved from time to time by the Supervisory Board), including monthly estimates of profit and loss, cashflow and balance sheet statements and key performance indicators, in each case for the financial year to which the budget relates, and also including projections for the next two financial years) as approved in accordance with this Agreement (including Schedule 8 (Budget)), in each case as the same may be amended from time to time in accordance with this Agreement;
"Business" means the business of facilitating, through a technology application, each of the following: ridesharing, food delivery, and logistics (using the core technology application) and all ancillary and related activity thereto (using the core technology application);
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"Business Day" means a day (not being a Saturday or Sunday) on which banks are open for general banking business in Moscow (Russian Federation), Amsterdam (Netherlands) and San Francisco (United States);
"Buyer" means the purchaser of any Shares in accordance with the terms of this Agreement;
"CEO" has the meaning given in Clause 5.2;
"CFO" has the meaning given in Clause 4.1.3
"COO" has the meaning given in Clause 4.1.4;
"CTO" has the meaning given in Clause 4.1.5;
"Charter", means in relation to a Group Company, its charter, articles of association or similar constitutional document as amended from time to time (including, for the avoidance of doubt, the Articles);
"Clause" means a clause of this Agreement;
"Company Prepared Returns" has the meaning given in Clause 24.1;
"Completion" has the meaning given in the Contribution Agreement;
"Completion Date" has the meaning given in the Contribution Agreement;
"Compliance Breach" has the meaning given in Clause 26.1;
"Confidential Information" means the existence and contents of this Agreement and the other Transaction Agreements, the arrangements contemplated by this Agreement and the other Transaction Agreements, the identity of the Shareholders, any information of a confidential nature which may become known to a Party from any of the other Parties as a result of negotiating, entering into or performing its obligations pursuant to this Agreement or any other Transaction Agreement, information of whatever nature concerning the Business and the Group Companies (including information provided to a Shareholder by the Observer it appointed), and any information of a confidential nature which is expressly indicated by a Party to be confidential in relation to a Party or any of its Affiliates or subsidiary undertakings or parent undertakings;
"Conflict of Interest" means a direct or indirect personal conflict of interest within the meaning of article 2:239 paragraph 6 or 2:250 paragraph 5 Dutch Civil Code as the case may be;
"Contribution Agreement" means the agreement for the contribution by Yandex and Uber to the Company of certain of their respective right, title and interests to the Business in the Territories entered into between the Company, Yandex, Uber and Yandex Foundation on 13 July 2017, as the same may be amended or otherwise modified from time to time in accordance with its terms;
"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;
"Corrupt Act" means, either in private business dealings or in dealings with the public or government sector, directly or indirectly giving, making, offering, receiving or agreeing to make (either individually or in agreement with others) any payment, gift or other advantage which (i) would violate any Corruption Laws; or (ii) is made to or for a Public Official or other person with the intention of influencing them and improperly obtaining or retaining an advantage in the conduct of business. The Parties acknowledge that this Agreement is not
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intended to prohibit lawful and good faith, reasonable and proportionate hospitality, promotional and other business expenditure;
"Corruption Laws" means all Applicable Laws in connection with bribery and corruption, including:
| (a) | legislation in applicable jurisdictions implementing the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed in Paris on 17 December, 1997, which entered into force on 15 February, 1999, and the Convention's Commentaries; |
| (b) | the United States Foreign Corrupt Practices Act of 1977, as amended; |
| (c) | the United Kingdom Xxxxxxx Xxx 0000; and |
| (d) | the Russian Federal Law On Combatting Corruption No. 273-FZ dated 25 December 2008 (in Russian, Федеральный закон от 25.12.2008 N 273-ФЗ "О противодействии коррупции") and the Russian Federal Law On Combatting Legalisation (Laundering) of Proceeds from Crime and Financing of Terrorism No. 115-FZ dated 7 August 2001 (in Russian, Федеральный закон от 07.08.2001 N 115-ФЗ "О противодействии легализации (отмыванию) доходов, полученных преступным путем, и финансированию терроризма"); |
"Deed of Adherence" means a deed in the form set out in Schedule 1;
"Deed of Covenant" means the deed of covenant between the Company, Yandex and Uber dated on or about the date hereof;
"Default Notice" has the meaning given in Clause 25.3;
"Defaulting Shareholder" has the meaning given in Clause 25.3;
"Dispute" has the meaning given in Clause 31.2;
"Drag Along Notice" has the meaning given in Clause 24.1;
"Drag Sale" has the meaning given in Clause 24.4;
"Drive Contribution Agreement" means the contribution agreement entered into between Yandex and the Company on or about the date in September 2020 on which this Agreement is amended and restated, pursuant to which, amongst other things, Yandex agrees to transfer the entire charter capital of Yandex.Carsharing LLC to the Company;
"Drive Deed of Covenant" means the deed of covenant entered into between Yandex and the Company on or about the date in September 2020 on which this Agreement is amended and restated, pursuant to which Yandex (conditional upon Russian Completion (as defined in the Drive Contribution Agreement) occurring) gives the Company certain undertakings in connection with the business of car-sharing and activities products and services ancillary or related to car-sharing;
"Dutch Director" has the meaning given in Clause 5.2;
"Encumbrance" 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 the Articles;
"Entry Price" means the price per B Share (in USD) on the Completion Date based on the RUB to USD exchange rate set by the Central Bank of Russia on the Completion Date;
"Equity Incentive Plan" means the employee equity incentive plan adopted by the Company from time to time;
"Equity Incentive Pool" means [***] A Shares (excluding A Shares underlying equity incentive awards that are fully vested on the date hereof);
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"Equity Proportions" means the respective proportions in which the Shares are held from time to time by each of the Shareholders, save that if the expression "Equity Proportions" is used in the context of some (but not all) of the Shareholders, it shall mean the respective proportions in which Shares are held by each of those particular Shareholders;
"Escalation Matter" has the meaning given in Clause 11.4;
"Event of Default" has the meaning given in Clause 25.1;
"Event of Default Remedy Notice" has the meaning given in Clause 25.5;
"Excess New Securities" has the meaning given in Clause 18.6;
"Exchange Agreement" has the meaning given in the Contribution Agreement;
"Excluded Territories" means either or both of the Yandex Excluded Territories and/or the Uber Excluded Territories, as the context requires, and "Excluded Territory" shall mean any of them, as the context requires;
"Excluded Territories Subsidiaries" has the meaning given in 3.8 and shall include the Yandex Excluded Territories Subsidiaries and the Uber Excluded Territories Subsidiaries;
"Exit Offer" has the meaning given in Clause 24.1;
"FAS" means the Federal Antimonopoly Service of the Russian Federation;
"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;
"Group" means the Company and the Subsidiaries of the Company from time to time, and "Group Company" means any of them;
“Group Business” means the Business plus, following Russian Completion (as defined in the Drive Contribution Agreement), the business of car-sharing and all activities products and services ancillary or related to car-sharing (including facilitating car-sharing through a technology application);
"Initial Proportion" means the number of B Shares held by each of Yandex and Uber as of immediately following the consummation of the Secondary Sale, which number of B Shares are set forth opposite each of Yandex and Uber in Schedule 9; provided, that notwithstanding anything herein to the contrary, for the purposes of determining at any given time whether Yandex or Uber, as the case may be, hold a certain percentage of their respective Initial Proportion, any B Shares held at such time by a Permitted Affiliate of such Shareholder shall be treated as if it were held by such Shareholder;
"Initial Territories" means Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan and Uzbekistan;
"Insolvency Event" means a person or any person having Control of a person:
| (a) | being deemed to be insolvent or bankrupt under Applicable Law; |
| (b) | being unable, or admitting its inability, to pay its debts as they fall due (and for the purposes of this paragraph, it is unable to pay its debts if one of the circumstances set out in section 123(1)(a), (b) (disregarding for these purposes the restriction to England and Wales) or (e) of the Insolvency Xxx 0000 or any other Applicable Law); |
| (c) | making a composition or arrangement with its creditors or putting a proposal to its creditors for a voluntary arrangement for a composition of its debts or a scheme of arrangement (other than for the purposes of a bona fide reconstruction or amalgamation); |
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| (d) | passing a resolution putting itself into voluntary liquidation (other than for the purposes of a bona fide amalgamation or reconstruction); |
| (e) | suffering the appointment of a provisional liquidator, a receiver, a manager or an administrative receiver; or |
| (f) | being subject to any other corporate action, legal proceedings or other formal procedure or step taken for any form of liquidation (other than a voluntary solvent liquidation for the purposes of a bona fide amalgamation or reconstruction), dissolution, receivership, administrative receivership, administration, arrangement or scheme with creditors, moratorium, stay or limitation of creditors' rights, interim or provisional supervision by the court or by persons appointed by the court (or any equivalent or similar procedure under the Applicable Law of any jurisdiction in which the relevant person is incorporated, registered, domiciled or resident or carries on business or has assets); |
"Intellectual Property" means (i) copyright, patents, database rights, trademarks, logos, domain names, and rights in trade marks, designs, know-how and confidential information (whether registered or unregistered), (ii) applications for registration, and rights to apply for registration, of any of the foregoing rights and (iii) all other equivalent or similar forms of intellectual property rights or protection existing anywhere in the world;
"Key Terms" means: (i) the number of Shares to be transferred; (ii) the agreed aggregate consideration for the proposed transfer, and the consideration per Share; and (iii) all other material terms and conditions of the proposed transfer;
"Listed" means admitted for unrestricted trading on a recognised investment exchange of international standing.
"Liquidity Event" means:
| (a) | a Strategic Sale; or |
| (b) | a Qualified IPO; |
"Lock-up Period" means the period commencing on the Completion Date and ending on [***];
"Management Board" means the Company's management board (bestuur) as constituted from time to time;
"Management Representative" in the context of an Escalation Matter, has the meaning given in Clause 11.6.1;
"Managing Director" has the meaning given in Clause 5.2;
"Yandex" means Yandex and, in case of a transfer to a Permitted Affiliate pursuant to Clause 19.4, shall include that Permitted Affiliate;
"Yandex Contribution" has the meaning given in the Contribution Agreement;
"Yandex Excluded Territory" has the meaning given in Clause 3.5, and a reference to the "Yandex Excluded Territories" shall mean all of them;
"Yandex Excluded Territory Committee" has the meaning given in Clause 3.7.2;
"Yandex Excluded Territories Subsidiary" has the meaning given in 3.8.2;
"Yandex Foundation" has the meaning given in Recital (A);
"Yandex Supervisory Director" has the meaning given in Clause 6.2.1;
"Yandex Trademark Licensing Agreement" means the trademark license agreement between the Yandex and the Company dated on or about the date the hereof;
"Marketable Securities" means the Listed marketable equity securities and depositary receipts of a Listed company, with an aggregate public float value immediately prior to the relevant Transfer of no less than USD 10 billion;
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"New Securities" has the meaning given in Clause 18.1;
"New Territory" and "New Territories" has the meaning given in Clause 3.1;
"Nominee Supervisory Directors" and "Nominee Supervisory Director" has the meaning given in Clause 6.2.2;
"Non-Cash Consideration" means the monetary value of the Marketable Securities calculated by reference to the VWAP of the middle market quotations for such Marketable Securities as shown by the relevant stock exchange or listing authority for each of the [***] on the relevant stock exchange or listing authority immediately preceding the relevant Transfer, multiplied by the number of Marketable Securities the subject of the relevant Transfer;
"Non-Defaulting Shareholder" has the meaning given in Clause 25.3;
"Non-Restricted Information" has the meaning given in Clause 3.13;
"Notice of Intention" has the meaning given in Clause 3.1;
"Observer" has the meaning given in Clause 7.20;
"Offer" has the meaning given in Clause 20.1;
"Operating Yandex Subsidiaries" means:
| (a) | Xxxxxx.Xxxx Kazakhstan LLC, a private company registered under the law of the Republic of Kazakhstan (registered with the Justice Division of Almaninskiy district of Almaty Justice Department, business identification number 161240022428); and |
| (b) | Xxxxxx.Xxxx AM LLC, a limited liability company registered under the laws of Armenia (registration number 286.110.954365) and whose registered office is at Armenia, Yerevan, Khorenarsy str. 28, 0018; |
"Operating Subsidiaries" means the Operating Uber Subsidiaries and the Operating Yandex Subsidiaries;
"Operating Uber Subsidiaries" means:
| (a) | Uber Kazakhstan LLP a limited liability partnership organised and existing under laws of Kazakhstan (company number 160540014930) and whose registered office is at Xxxxx X, 000 Xxxx Xx Xxxxxx, Xxxxxxxxxx District, 050012 Almaty City, Kazakhstan; |
| (b) | Uber Systems Bel LLC a limited liability company organised and existing under the laws of Belarus (company number 192518372) and whose registered office is at Xxxxxxxxx xxx., 00, premise 0, xxxx 00, 000000, Xxxxx, Xxxxxxx; and |
| (c) | Uber Azerbaijan LLC a limited liability company organised and existing under the laws of Azerbaijan (company number 2003320301) and whose registered office is at Xxxxxx xxxxxx, 00, XX0000, Xxxx, Xxxxxxxxxx; |
"Other Shareholder(s)" means either of Yandex (and/or its Permitted Affiliates) or Uber (and/or its Permitted Affiliates), being the Shareholder (excluding, for the avoidance of doubt, the Foundation) that is not a Selling Shareholder for the purposes of Clause 20 (Right of First Refusal) and Clause 21 (Tag Along Rights);
"Participating Shareholder" has the meaning given in Clause 21.2;
"Party Warranties" means the warranties set out at Schedule 5 (Party Warranties);
"People's Republic of China" means the sovereign state of the People's Republic of China excluding the Special Administrative Regions of Hong Kong and Macau, and Taiwan;
"Permitted Affiliate" means:
| (a) | in respect of Yandex, any Affiliate of Yandex; |
| (b) | in respect of Uber, any Affiliate of Uber; |
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| (c) | in respect of any other Shareholder, any wholly-owned and Controlled corporate Affiliate of such Shareholder, |
and in each case which is not a Prohibited Purchaser;
"Prescribed Price" has the meaning given in Clause 23.5.2;
"Prescribed Terms" has the meaning given in Clause 23.5.2;
"Pro-rata Offer" has the meaning given in Clause 18.2;
"Pro-rata Entitlement" has the meaning given in Clause 18.3.2;
"Proceeding" means any action, suit, claim (including a claim for refund or credit with respect to an overpayment of Tax), demand, complaint, charge, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, application, audit, examination, investigation or enquiry, whether formal or informal, commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel.
"Prohibited Purchaser" means any person who (i) is, or has an Affiliate that is, a Restricted Party; or (ii) would in the circumstances cause the Company or an Affiliate or subsidiary undertaking of the Company to become a target of Sanctions;
"Prohibited Transferee" means such persons as the Shareholders may agree from time to time;
"Public Official" means any person (whether appointed or elected) holding a legislative, administrative or judicial office, including any person employed by or acting on behalf of a public agency, a public enterprise (including any officer or employee of a state-owned or state-operated entity) or a public international organisation any political party or official thereof, or any candidate for political office;
"Qualified IPO" means:
| (a) | the closing of the offer and sale of shares or securities representing shares in the Company in a firm commitment underwritten offering to the public; |
| (b) | the listing and trading of such shares and securities on the New York Stock Exchange, the NASDAQ Stock Market, the London Stock Exchange (or any other international securities exchange of recognised international standing with the mutual consent of Yandex and Uber); |
| (c) | results in aggregate primary and/or secondary cash proceeds of not less than [***] (net of underwriting discounts and commissions); and |
| (d) | in which the per share price is at least [***] (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalisation with respect to the Shares); |
"Qualified IPO Notice" has the meaning given in Clause 21.2;
"Qualifying Issue" has the meaning given in Clause 18.11.
"Regulatory Approvals" means in relation to any matter, any necessary approvals required in any jurisdiction by any Governmental Authority in order for the matter to be implemented or completed (including any necessary FAS approvals);
"Related Agreement" means each Transaction Agreement other than this Agreement;
"Related Party" means, save as expressly contemplated by the Transaction Agreements, a Shareholder or any Affiliate of a Shareholder, any subsidiary undertaking or parent undertaking of a Shareholder, any other subsidiary undertaking of such a parent undertaking or any of their respective directors, officers or senior management, provided that for the purposes of this Agreement no Group Company is to be regarded as a Related Party of a Shareholder;
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"Related Party Contract" means any contract, arrangement or transaction (i) between, on the one hand, a Group Company and, on the other hand, a Related Party; or (ii) pursuant to which a Group Company has third party rights against a Related Party. For the avoidance of doubt, each of the Drive Contribution Agreement and the Drive Deed of Covenant is a Related Party Contract (Yandex being the 'Related Party' in each case);
"Relevant Financing" means any equity financing transaction by the Company, the sole purpose of which is the financing of the governance and operation (or proposed operation) of the Business of the Company in any New Territory;
"Reserved Matters" has the meaning given in Clause 11.1;
"Restricted Entity" means such persons as the Shareholders may agree from time to time;
"Restricted Excluded Territory Information" has the meaning given in Clause 3.9;
"Restricted Party" means any individual or entity that is:
| (b) | a government of a Sanctioned Country; |
| (c) | an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Country; |
| (d) | resident in, or incorporated under the laws of, a Sanctioned Country; |
| (e) | otherwise a target of Sanctions, |
| (f) | but in any such case of paragraphs (a) to (e) shall not include any individual or entity targeted only by Sectoral Sanctions; |
"Restructuring" has the meaning given in Clause 15.8.4;
"ROFO Acceptance Notice" has the meaning given in 23.6;
"ROFO Acceptance Period" has the meaning given in 23.6;
"ROFO Notice" has the meaning given in Clause 23.5;
"ROFO Offer" has the meaning given in Clause 23.5.3;
"ROFR Acceptance Notice" has the meaning given in Clause 20.2;
"ROFR Period" has the meaning given in Clause 20.2;
"Roll-Over" has the meaning given in Recital (C);
"RP Claim" means any claim that a Group Company has or may have against a Related Party under or in connection with a Related Party Contract);
"Rules" has the meaning given in Clause 31.2;
"Russian Yandex Taxi Subsidiaries" means:
| (a) | Xxxxxx.Xxxx LLC, a limited liability company registered under the laws of the Russian Federation (under main registration number 5157746192731); and |
| (b) | Xxxxxx.Xxxx Technology LLC, a limited liability company registered under the laws of the Russian Federation (under main registration number 1177746073328). |
"Russian Subsidiaries" means each of the Russian Uber Subsidiary and the Russian Yandex Taxi Subsidiaries and any other Subsidiary of the Company incorporated in the Russian Federation from time to time;
"Russian Uber Subsidiary" means Uber Technology, LLC a limited liability company organised and existing under the laws of the Russian Federation (company number
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5137746103677) and whose registered office is at 2/14 Bryusov xxxxxxxx, xxxx 0, 000000, Xxxxxx, Russian Federation;
"Sanctioned Country" means any country or other territory subject to broad economic embargo under any Sanctions, which definition, as of the date of this Agreement, includes Crimea (as defined and construed in the applicable Sanctions laws and regulations), Cuba, Iran, North Korea, Sudan and Syria but excludes the Russian Federation;
"Sanctions" means any laws or regulations relating to economic or financial sanctions or trade embargoes or related restrictive measures imposed, administered or enforced from time to time by a Sanctions Authority including, for the avoidance of doubt, any Sectoral Sanctions;
"Sanctions Authority" means (i) the United Nations Security Council; (ii) the United States government; (iii) the European Union; (iv) the United Kingdom government; and (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury, the United States Department of State and Department of Commerce, and Her Majesty's Treasury;
"Sanctions List" means any of the lists of specifically designated nationals or designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended, supplemented or substituted from time to time;
"Secondary Sale" has the meaning given in Recital (B);
"Sectoral Sanctions" means any Sanctions imposed by any Sanctions Authority that do not freeze or block the assets and/or economic resources of a designated person or comprehensively freeze or block making available funds or economic resources to such designated person, but merely restrict the ability of certain individuals or entities to access financing or export or import equipment, goods, technology or services, including, for the avoidance of doubt, the Sanctions imposed under the Sectoral Sanctions Identification List maintained by the Office of Foreign Assets Control of the US Department of Treasury;
"Selling Shareholder" has the meaning given in Clause 20.1;
"Senior Managers" or "Senior Management" means the CFO, COO and CTO, in each case of the Group, and any other officers of the Group that the Parties have agreed from time to time report directly to the CEO;
"Senior Management Candidate" has the meaning given in Clause 4.6.1;
"Shareholders" means the holders of Shares from time to time, and the term "Shareholder" shall be construed as any one of them;
"Shares" means any issued and outstanding shares in the capital of the Company (of whatever class) from time to time;
"Strategic Sale" means a bona fide arm's length transfer to a Third Party Purchaser (or group of directly or indirectly related Third Party Purchasers) (whether through a single transaction or a series of related transactions) of all of the Shares held by the Shareholders;
"Subsidiaries" means the subsidiary undertakings of the Company from time to time and at the date of this Agreement includes the Russian Subsidiaries and the Operating Subsidiaries, and "Subsidiary" means any one of them;
"Supervisory Board" means the Company's supervisory board (raad van commissarissen) as constituted from time to time;
"Supervisory Director" means a member of the supervisory board of the Company from time to time;
"Surviving Provisions" means Clauses 1 (Interpretation), 23.12 - 23.13 (Qualified IPO lock-up period), 23.14 (Registration Rights), 27 (Notices), 29 (Announcements and Confidentiality), 30 (Miscellaneous) (except Clauses 30.1 (Warranties) and 30.15 (Further
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Assurance)) and 31 (Governing law and Dispute Resolution), 32 (Process Agent), paragraphs 5 and 6 of Schedule 3 (Transfer Terms), and Schedule 4 (Registration Rights);
"Tag Along Notice" has the meaning given in Clause 21.1;
"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, 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.
"Territories" means the Initial Territories and any New Territories as agreed between the Parties in accordance with this Agreement, and the term "Territory" shall be construed as any one of them;
"Third Party Completion Notice" has the meaning given in Clause 20.4.3;
"Third Party Issue" has the meaning given in Clause 18.8.
"Third Party Purchaser" means a bona fide third party purchaser who is not an Affiliate or subsidiary undertaking or parent undertaking of, or acting in concert with, any Shareholder or any of its Affiliates;
"Transaction Agreements" has the meaning given in the Contribution Agreement;
"Transfer" means, with respect to any holder of Shares, to:
| (a) | create or allow to subsist any Encumbrance in respect of any of its Shares or any interest in (or in respect of) any of its Shares; |
| (b) | create or permit to subsist any trust over any Shares; |
| (c) | sell, assign, transfer or otherwise dispose of or deal with, or grant any option over, any of its Shares or an interest, or a right, in (or in respect of) its Shares; |
| (d) | enter into any agreement or other arrangement in respect of the votes or other rights attached to, or any benefits (economic or otherwise) or privileges pertaining to, any of its Shares; |
| (e) | enter into any derivative or put/call arrangement referenced to any of its Shares or the rights attached to, or any benefits (economic or otherwise) or privileges pertaining to, any of its Shares; or |
| (f) | enter into any agreement or arrangement to do any of the foregoing, |
in each case, whether directly or indirectly, with or without consideration, and whether voluntarily or involuntarily or by operation of law (and "Transferred" shall be construed accordingly);
"Transfer Notice" has the meaning given in Clause 20.1;
"Transfer Terms" means the terms set out in Schedule 3 (Transfer Terms);
"Uber" means Uber and, in case of a transfer to a Permitted Affiliate pursuant to Clause 19.4, shall include that Permitted Affiliate;
"Uber Cash Contribution" has the meaning given in the Contribution Agreement;
“Uber Contribution” has the meaning given in the Contribution Agreement;
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"Uber Excluded Territory" has the meaning given in Clause 3.5, and a reference to the "Uber Excluded Territories" shall mean all of them;
"Uber Excluded Territory Committee" has the meaning given in Clause 3.7.1;
"Uber Excluded Territories Subsidiary" has the meaning given in 3.8.1;
"Uber Supervisory Director" has the meaning given in Clause 6.2.2;
"Uber Newco" means Uber ML Holdco B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its registered office at 1017 HL Amsterdam, the Xxxxxxxxxxx, Xxxxxxxxxxxx 00, registered with the trade register of the Chamber of Commerce under number 69444692;
"Uber IPO" has the meaning given in Clause 12.6;
"Uber Trademark Licensing Agreement" means the trademark license agreement between Uber and the Company dated on or about the date hereof;
"U.S. GAAP" means generally accepted accounting principles in the United States;
"U.S. Investor" has the meaning given to it in Schedule 7;
"US Qualified IPO" means a Qualified IPO through which the Company has filed a registration statement with the SEC;
"Vendor" means the seller of any Shares in accordance with the terms of this Agreement;
"Written Request" in the context of an Escalation Matter, has the meaning given in Clause 11.4; and
"VWAP" means the volume average weighted 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 its relevant stock exchange or listing authority.
Principles of interpretation
| 1.2 | In this Agreement: |
| 1.2.1 | any reference to this Agreement includes the Schedules to it, each of which forms part of this Agreement for all purposes; |
| 1.2.2 | references to this Agreement shall be construed as references also to any separate or independent stipulation or agreement contained in it; |
| 1.2.3 | the contents page and headings in this Agreement are for convenience only and shall not affect its interpretation; |
| 1.2.4 | 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; |
| 1.2.5 | 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; |
| 1.2.6 | words in the singular shall include the plural and vice versa, and references to one gender include other genders; |
| 1.2.7 | 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 |
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| Authority, unincorporated association, trust or partnership (whether or not having separate legal personality); |
| 1.2.8 | a reference to a particular person shall include a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation) and, subject to Clauses 30.2 and 30.3, permitted assigns; |
| 1.2.9 | 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; |
| 1.2.10 | if a period is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day, unless otherwise specified; |
| 1.2.11 | references to any English 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 or Russia (as relevant) be deemed to include what most nearly approximates the English or Russian legal term in that jurisdiction and references to any English or Russian statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction; |
| 1.2.12 | words and expressions defined in the Companies Xxx 0000 shall bear the same meaning as in that Act, unless expressly provided otherwise; |
| 1.2.13 | references to writing shall include any modes of reproducing words in any legible form (but shall not include email unless expressly stated otherwise); |
| 1.2.14 | an Event of Default "subsists" if it has not been waived by, or remedied to the satisfaction of, the Non-Defaulting Shareholders; |
| 1.2.15 | references to documents "in the agreed form" or any similar expression shall be to documents agreed between the Shareholders prior to the execution of this Agreement and initialled for identification only by, or on behalf of, the Shareholders; |
| 1.2.16 | references to a "director" of a Group Company is taken to mean a member of the board of directors or management board of any Group Company, but is not taken to mean a general director (sole executive body) of any Group Company; |
| 1.2.17 | a reference to "shares" or "share capital" includes a reference to "participation interests" and "charter capital"; |
| 1.2.18 | a reference to "RUB", "RUR", "Roubles" or "Rubles" is to the lawful currency of the Russian Federation. A reference to "USD", "US$" "$" or "Dollars" is to the lawful currency of the United States of America. A reference to "EUR", "Euro" or "€" is to the lawful currency of the member states of the European Union that have adopted or may adopt the single currency in accordance with the legislation of the European Union for European Monetary Union; |
| 1.2.19 | for the purposes of determining whether a shareholding threshold is satisfied in this Agreement, a reference to a Shareholder shall include a reference to the shareholding of that Shareholder when aggregated together with the shareholdings of its Permitted Affiliate transferees; |
| 1.2.20 | a reference to a Shareholder is to that Shareholder or to any Permitted Affiliate transferee of its Shares (for the avoidance of doubt, from that Shareholder or otherwise) to whom its rights have been assigned in accordance with Clause 30.3; |
| (A) | a company and each of its Affiliates and subsidiary undertakings and parent undertakings will be presumed to be acting in concert; |
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| (B) | a person and each of his connected persons (within the meaning of sections 1122 and 1123 of the Corporation Tax Act 2010) will be presumed to be acting in concert; |
| (C) | a company and each of its officers and directors will be presumed to be acting in concert; |
| (D) | a company and any person who (together with his Affiliates, subsidiary undertakings, parent undertakings and connected persons) exercises control (within the meaning of section 1124 of the Corporation Tax Act 2010) over such company will be presumed to be acting in concert; |
| (E) | a broker or other organisation providing advice in relation to any actual or proposed Transfer Notice, ROFR Acceptance Notice, Drag Along Notice, Tag Along Notice, or Third Party Completion Notice and the client of such broker or other organisation to which such advice is so provided will be presumed to be acting in concert; and |
| (F) | a nominee holding any Share(s) and the (actual or potential) holder(s) of the beneficial interest(s) in such Share(s) will be presumed to be acting in concert; |
| 1.2.22 | except where the context otherwise requires, a reference to time or the time of any day is to Moscow 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, 5:00pm; and |
| 1.2.23 | references to fractional holdings of Shares shall be rounded up to the nearest whole Share. |
| 1.4 | The ejusdem generis principle of construction shall not apply to this Agreement. Accordingly, general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words. The terms "other", "or otherwise", "whatsoever", "including", "include", "for example" and "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words accompanying those terms. |
| 1.5 | The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favouring or disfavouring any Party by virtue of the authorship of any provisions of this Agreement. |
| 1.6 | Save where expressly stated otherwise in this Agreement: |
| 1.6.1 | all warranties, representations, indemnities, covenants, agreements and obligations given or entered into by more than one person in this Agreement are given or entered into severally; and |
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| 1.6.2 | all warranties, representations, indemnities, covenants, agreements and obligations in favour of two or more persons in this Agreement are for the benefit of them jointly and each of them severally. |
Procurement with respect to the Group
| 1.7 | If, under this Agreement, a Party has undertaken to another Party to procure that any Group Company shall do any act or thing, the Party in question shall not be in breach of that undertaking if: |
| 1.7.3 | without prejudice to Clause 2.2, that Party has exercised its voting rights (if any) and other rights as a holder of Shares or other equity participation interests in the relevant Group Company in favour of the doing of the act or thing in question, |
provided that nothing in this Clause 1.7 shall require a director of a Group Company to act or vote in a manner inconsistent with his fiduciary and statutory duties as a director. The provisions of this Clause 1.7 shall apply mutatis mutandis to obligations to procure that any Group Company shall not do particular acts or things, so that the obligation to vote in favour or to act so as to bring about an act or thing shall be replaced by an obligation to vote against or act so as to prevent the occurrence of that act or thing.
| 2. | BUSINESS AND OBJECTIVES |
2.1It is the intention of the Parties that at all times during the continuance of this Agreement the business of the Group shall be confined to the Group Business. For the avoidance of doubt, the Company may itself be active in the Group Business, or it may be principally a holding company of the Group, and the nature and scope of the Company's involvement (if any) in the Group Business may change from time to time.
2.2Each Shareholder undertakes to exercise its voting and any other rights attaching to the Shares and its rights pursuant to this Agreement to:
| 2.2.1 | procure that the Group Business is conducted by the Group: |
(A)on sound commercial profit-making principles with the aim of generating the maximum achievable maintainable profits available for distribution to the extent consistent with good business practice; and
(B)in accordance with Applicable Laws, Articles and the Charters;
| 2.2.2 | procure that the Management Board determines the general policy of the Company in the carrying on of the Group Business under supervision of the Supervisory Board in accordance with the express provisions of this Agreement and of the Articles; and |
| 2.2.3 | procure that each Group Company is operated and managed consistently with this Agreement and complies with the restrictions imposed upon it under its Charter. |
| 3. | new territories AND COMPETING OPERATIONS |
New Territories
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| to the Shareholders of its intention in accordance with Clause 3.3 (a "Notice of Intention"). A Notice of Intention shall include a statement that (i) the Company is considering entering and operating the Business in a New Territory and (ii) the estimated timeframe for commencement of operations in the New Territory. For the avoidance of doubt, other than as set forth in the sub clauses (i) and (ii) above, a Notice of Intention shall not include any details about the Company's entry plans (including, but not limited to, strategy relating to the roll out of Company operations in such New Territories); provided, however, that such information as may reasonably be necessary to evaluate such Notice of Intention may be provided on a “counsel only” basis. |
| 3.2.1 | Uber or Yandex (as the case may be) does not provide a written confirmation in accordance with Clause 3.2, or otherwise engage with the Company with respect to the proposed entry into such New Territory, within [***] of delivery of such applicable Notice of Intention, the Supervisory Board may make a binding decision to enter into such New Territory if, and only if, it receives clear, unambiguous and up-to-date advice from an independent leading international law firm duly appointed by the Company that the proposed operation of the Business in such New Territory would be in compliance with all applicable anti-trust and other similar laws; or |
| 3.2.2 | the Shareholders (acting reasonably) disagree or receive conflicting legal advice as to whether the proposed operation of the Business in such New Territory would be in compliance with all applicable anti-trust and other similar laws, the Supervisory Board may make a binding decision to enter into such New Territory if, and only if, it receives clear, unambiguous and up-to-date advice from an independent leading international law firm that has (i) been jointly appointed by the Shareholders (acting reasonably) and (ii) had the opportunity to review any conflicting legal advice previously received by each Shareholder, that the proposed operation of the Business in such New Territory would be in compliance with all applicable anti-trust and other similar laws. |
| 3.3 | If Uber or Yandex (or any of their Affiliates): |
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| be amended to include such New Territory and the term of protective undertakings set out in the Deed of Covenant shall commence in respect thereof), unless: |
| 3.5.1 | Uber or Yandex (or any of their Affiliates) is already operating its own Business in the New Territory as of the date of the Notice of Intention; or |
| 3.5.2 | where Uber or Yandex (or any of their Affiliates) is not already operating its own Business in the New Territory as of the date of the Notice of Intention: |
(in relation to Uber, any such New Territory being a “Uber Excluded Territory” and in relation to Yandex, any such New Territory being a "Yandex Excluded Territory", and collectively referred to as the "Excluded Territories"). For the avoidance of doubt, any such New Territory referred to in Clauses 3.5.1 or 3.5.2 shall only be considered an "Excluded Territory" upon the Company (or any of its Subsidiaries) commencing operations of the Business in such New Territory.
| 3.6 | Each of Uber or Yandex, as the case may be, undertakes: |
| 3.6.1 | in the event a Notice of Intention is given in accordance with Clause 3.3.1, to promptly upon receipt of such notice take the necessary steps and measures to establish and implement information barriers and Chinese walls to ensure that Uber or Yandex business team(s) (as the case may be) involved in day-to-day operations of Business activities in the relevant New Territory (or New Territories) are not informed or otherwise provided any information with respect to the Company's potential entry and operation of the Business in such New Territory; and |
| 3.6.2 | in the event a Notice of Intention is given in accordance with Clause 3.3.2 and Uber or Yandex (as the case may be) have acted in accordance with Clause 3.5.2(A) or 3.5.2(B), to promptly take the necessary steps and measures to establish and implement information barriers and Chinese walls to ensure that Uber or Yandex business team(s) (as the case may be) involved in day-to-day operations of Business activities in the relevant New Territory (or New Territories) are not informed or otherwise provided any information with respect to the Company's potential entry and operation of the Business in such New Territory, |
(and, for the avoidance of doubt, involvement in day-to-day operations of Business activities, for the purpose of this Clause 3.6 includes business team(s) involved in strategy and operational planning to assess opportunities for entry and operation of the Business in New Territories).
| 3.7 | Subject always to Clause 11 (Reserved Matters), the Supervisory Board shall have authority, by majority vote, to form two committees thereof: |
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| all actions and decisions of the Supervisory Board in respect of the Business of the Company and its Subsidiaries in the Uber Excluded Territories; and |
| 3.9 | Subject to Clause 11 (Reserved Matters), and notwithstanding anything to the contrary in this Agreement or the Articles, the Company shall not, and shall cause its Subsidiaries not to: |
| 3.9.1 | in the case of an Uber Excluded Territory, provide to Uber or the Uber Supervisory Directors any non-public information, access to records or facilities, or audit or inspection rights (including, for the avoidance of doubt, any financial information or audit rights Uber may otherwise be entitled to in accordance with Clauses 12.3 to 12.13 (Information) inclusive and Clauses 12.14 and 12.15 (Audit rights)), relating solely to the operations of the Company and its Subsidiaries in the Uber Excluded Territories; and |
| 3.9.2 | in the case of a Yandex Excluded Territory, provide to Yandex or the Yandex Supervisory Directors any non-public information, access to records or facilities, or audit or inspection rights (including, for the avoidance of doubt, any financial information or audit rights Yandex may otherwise be entitled to in accordance with Clauses 12.3 to 12.13 (Information) inclusive and Clauses 12.14 and 12.15 (Audit rights)), relating solely to the operations of the Company and its Subsidiaries in the Yandex Excluded Territories. |
Information that is restricted in accordance with this Clause 3.9 shall, for the purposes of Clause 3.12 below, be referred to as the "Restricted Excluded Territory Information".
| 3.11 | The Company shall, and Uber and Yandex shall procure that the Company shall, take such steps and measures to establish and implement such policies and procedures, including information barriers and Chinese walls, as are necessary to ensure that Uber and the Uber Supervisory Directors, on the one hand, or Yandex or the Yandex Supervisory Directors, on the other, as applicable, do not receive any information, access to records or facilities, or audit or inspection rights in contravention of Clause 3.9. |
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Competing operations following expiry of the Deed of Covenant
| 3.16 | In the event that a notice is provided to the Company in accordance with Clause 3.15 by: |
| 3.16.1 | Uber (or any of its Affiliates), the Territory or Territories (as applicable) covered by the notice so delivered shall become an Uber Excluded Territory; and |
| 3.16.2 | Yandex (or any of its Affiliates), the Territory or Territories (as applicable) covered by the notice so delivered shall become a Yandex Excluded Territory, |
(and such definitions herein shall be deemed to be amended to include such Territory or Territories (as applicable)) and the provisions applicable to Excluded Territories contained in Clauses 3.7 to 3.13 shall be applicable to such Territory or Territories covered by the relevant notice (as applicable).
| 4. | MANAGEMENT AND GOVERNANCE OF THE GROUP |
Management and supervision of the Group
4.1Without prejudice to the decision-making powers of the Shareholders expressly set out in this Agreement, the Shareholders agree that the management of the Group, under the supervision of the Supervisory Board, shall be performed by, as the case may be:
| 4.1.1 | the Management Board; |
| 4.1.2 | the management bodies of each Subsidiary; |
| 4.1.3 | the persons fulfilling the role that is equivalent to the chief financial officer of the Group, which on the date of this Agreement is Xxxxxxxxx Xxxxxxx (the "CFO"); |
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| 4.1.5 | the persons fulfilling the role that is equivalent to the chief technology officer of the Group, which on the date of this Agreement is Andrey Egunov (the "CTO"), |
in each case in accordance with this Agreement, the Articles and the Charters.
Management of the Subsidiaries
4.2The Shareholders agree that the management of each Subsidiary shall be performed by:
| 4.2.1 | the general meeting of its shareholders or participants (as the case may be); |
| 4.2.2 | its general director (in the case of the Russian Subsidiaries and any other Subsidiaries incorporated in the Russian Federation); |
| 4.2.3 | its board of directors (in the case of the Operating Subsidiaries and any other Subsidiaries incorporated outside the Russian Federation from time to time); and |
| 4.2.4 | its board of directors (in the case of the Excluded Territories Subsidiaries and any other Subsidiaries incorporated in the Excluded Territories from time to time). |
in each case in accordance with this Agreement and the relevant Charter.
4.3The Company shall, and the Shareholders shall procure that the Company shall, in each case subject to Clause 11 (Reserved Matters):
| 4.3.1 | exercise control over the Subsidiaries by directly and indirectly (through other Subsidiaries) exercising its voting rights as a shareholder or participant (as the case may be) in the Subsidiaries and by directly and indirectly (through other Subsidiaries) appointing the directors or general directors of the Subsidiaries (in each case, where applicable); |
| 4.3.2 | procure that each Subsidiary promptly takes all actions and decisions necessary in order to implement decisions made by its direct or indirect parent undertakings (including the Company); and |
| 4.3.3 | subject to Clause 5, procure that if it becomes aware that any Subsidiary or any officer or employee of any Group Company is taking or has taken any action or decision in contravention of the requirements of Clauses 4.3.2 or 11, each Group Company shall as soon as reasonably practicable take such reasonable action as is necessary to correct such action or decision including, if applicable, removing from office any officer or employee of such Group Company responsible for the taking of such contravening action or decision. |
Appointment and removal of Senior Management
| 4.5 | Each Senior Manager shall have such authority as the Management Board may from time to time delegate to them via a power of attorney. |
| 4.6 | Prior to any appointment made pursuant to Clause 4.4, Uber shall be entitled to: |
| 4.6.2 | be represented in at least one interview with any final Senior Management Candidate proposed to be appointed; and |
| 4.6.3 | make recommendations to the Management Board as to the suitability of any Senior Management Candidate. |
| 4.7 | The Company undertakes to reasonably consider the recommendations made by Uber in accordance with Clause 4.6.3. |
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| 4.8 | Unless otherwise agreed in writing by the Shareholders, each of the Company and Yandex undertakes to procure that any person appointed to Senior Management: |
| 4.8.1 | must have the appropriate skills, qualifications and experience required of a member of Senior Management having regard to the nature of the Group Business and the size of the Group; and |
| 4.8.2 | must not be related to (A) any member of the existing Senior Management of the Group or (B) any member of the senior management of Yandex (or any of its Affiliates). |
Relationship of this Agreement and Articles and Charters
4.11If, during the continuance of this Agreement, there is any conflict between the provisions of this Agreement and of the Articles or the Charters, then as between the Shareholders, during such period, the provisions of this Agreement shall prevail to the extent permitted by Applicable Law and Yandex and Uber shall work together to procure the relevant amendment to the Articles or the Charters that ensures consistency between the Articles or the Charters and this Agreement if so required.
4.12For the avoidance of doubt, Uber and the Company shall take all necessary actions and steps to give effect to the provisions of this Agreement with respect to the United Excluded Territories. This shall include, but not be limited to, (i) the exercise of voting (and any other rights pursuant to the terms of this Agreement) in a manner that will allow each of the Subsidiaries to obtain all necessary resolutions with respect to the United Excluded Territories, and (ii) refraining from any actions which may block the passing of such necessary resolution(s) with respect to the United Excluded Territories.
Administrator
| 4.13 | The Company and the Shareholders agree that, upon Completion, Alex de Cuba shall perform certain administrative and corporate services on behalf of the Company, such services to include maintenance of the Company's register but (unless otherwise agreed by Yandex and Uber, acting together) to exclude provision of a registered address to the Company. For so long as Yandex and Uber each hold more than [***] of their Initial Proportions (respectively), the Company shall be entitled to appoint, remove and replace an administrator or corporate service provider if Yandex and Uber (acting reasonably) so request jointly in writing. |
| 5. | THE MANAGEMENT BOARD |
Role of the Management Board
| 5.1 | The Management Board shall be charged with the management of the business and affairs, the administration and the representation of the Company, subject to the provisions in this Agreement and the Articles. In carrying out its duties, the Management Board shall be guided by the best interests of the Company and its business, including its stakeholders. All powers not expressly reserved for the Management Board or the Supervisory Board by Dutch Civil Code or the Articles or this Agreement fall to the Shareholders' general meeting. |
| 5.2 | The Company shall have a Management Board composed of two managing directors (bestuurders) (the "Managing Directors", each a "Managing Director"). One of the |
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| Managing Directors shall be the chief executive officer (the "CEO") and may be a non-resident of the Netherlands and the other Managing Director shall be an individual who is a resident in the Netherlands (the "Dutch Director"). In the event that a Dutch Director no longer has his place of residence in the Netherlands, he shall forthwith inform the Management Board thereof. Only natural persons may be a Dutch director. |
Appointment, removal and remuneration of Managing Directors
| 5.4 | The CEO and Dutch Director shall be appointed by Shareholders at a Shareholders' general meeting and, for the avoidance of doubt, each of Yandex, Uber and the Foundation shall be entitled to vote its Shares in respect of such appointment. |
| 5.5 | Subject to Clause 11 (Reserved Matters), the remuneration (including any bonus or any profit sharing, share option or other incentive scheme or any equity-linked remuneration scheme) of the Managing Directors shall be determined by the Supervisory Board (or any compensation committee thereof) in accordance with the global market standards for such role from time to time. |
Meetings
| 5.6 | Management Board meetings shall be held in person at the head offices of the Company, unless in exceptional circumstances an alternative location is determined in advance by the CEO provided that no Management Board meetings are held in the United Kingdom. Management Board meetings shall be held monthly, unless the Management Board decides otherwise. In addition, the Management Board shall meet at the request of any of its Managing Directors. Management Board meetings will be convened by the CEO giving [***] prior notice, or such shorter period if, at the sole discretion of the CEO, the circumstances so require. Together with the notice of the meeting, an agenda shall be sent stating the items which shall be discussed at such meeting, accompanied by supporting documents relating to such items, if any. |
Conflicts of interest
5.7A Managing Director who has a Conflict of Interest shall immediately report this to the other Managing Director, the Supervisory Directors and the Shareholders. Such Managing Director will make himself available to provide all information relevant to the Conflict of Interest to the other Managing Director, the Supervisory Directors and the Shareholders.
5.8In the event of a Conflict of Interest referred to in Clause 5.7, the number of Managing Directors required to validly deliberate and vote will not be met and, accordingly, the Management Board shall be required to submit the decision on such matter to the Supervisory Directors.
Decision-making
5.9Decisions of the Management Board can only be validly taken in a meeting where all Managing Directors are present in person.
5.10Subject always to Clause 11 (Reserved Matters), decisions of the Management Board shall have been validly passed when all votes are cast in favour.
5.11In the event of a tied vote at a Management Board meeting, the proposed resolution shall be rejected and the status quo preserved.
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5.12A resolution of the Management Board may, instead of at a meeting, be passed in writing, which shall include an electronic message and a message transmitted by any other accepted means of communication, provided that such message can be printed.
Representation at Management Board meetings
| 5.13 | Any Managing Director shall be entitled to appoint the other Managing Director as his proxy by power of attorney who will be entitled in the absence of his appointor to do all the things which his appointor is authorised or empowered to do and with the same number of votes as his appointor, provided the authorisation is granted in respect of (i) specific transaction(s) or (ii) limited in time or scope with due observance of Clause 5.6. |
| 6. | THE supervisory BOARD |
6.1The Supervisory Board shall be charged with the supervision of the Management Board and the Company's business. The Supervisory Board shall also assist the Management Board by providing advice. In carrying out their duties, the Supervisory Directors shall be guided by the best interests of the Company and its business, including its stakeholders.
Appointment and removal of Supervisory Directors
| 6.2 | Unless otherwise agreed by the Shareholders as a Reserved Matter, the Supervisory Board shall have a maximum of [***] members, of whom: |
| 6.2.1 | Yandex shall be entitled, for so long as Yandex (together with its Permitted Affiliates) holds: |
| (A) | [***] or more of its Initial Proportion, to nominate [***] Supervisory Directors to the Supervisory Board; |
| (B) | at least [***] but less than [***] of its Initial Proportion, to nominate [***] Supervisory Directors to the Supervisory Board; |
| (C) | at least [***] but less than [***] of its Initial Proportion, to nominate [***] Supervisory Directors to the Supervisory Board; and |
| (D) | at least [***] but less than [***] of its Initial Proportion, to nominate [***] Supervisory Director to the Supervisory Board, |
by notice to the Company (each a "Yandex Supervisory Director"), provided that the failure by Yandex to nominate its Yandex Supervisory Directors shall not be deemed to be a waiver by Yandex of its right to nominate any of its Yandex Supervisory Directors at any time; and
| 6.2.2 | Uber shall be entitled, for so long as Uber (together with its Permitted Affiliates) holds: |
| (A) | [***] or more of its Initial Proportion, to nominate [***] Supervisory Directors to the Supervisory Board; |
| (B) | at least [***] but less than [***] of its Initial Proportion, to nominate [***] Supervisory Directors to the Supervisory Board; and |
| (C) | at least [***] but less than [***] of its Initial Proportion, to nominate [***] Supervisory Director to the Supervisory Board, |
by notice to the Company (each a "Uber Supervisory Director" and together with the Yandex Supervisory Directors, the "Nominee Supervisory Directors" and each an "Nominee Supervisory Director"), provided that the failure by Uber to nominate its Uber Supervisory Directors shall not be deemed to be a waiver by Uber of its right to nominate any of its Uber Supervisory Directors at any time.
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| 6.5 | In nominating persons to be appointed as Nominee Supervisory Directors in accordance with clauses 6.2.1 and 6.2.2, each of Yandex and Uber shall appoint as a Yandex Supervisory Director and Uber Supervisory Director (respectively) at least one person that shall be an individual who is resident in the Netherlands for tax purposes. |
| 6.7 | The Supervisory Directors shall be appointed by Shareholders at a Shareholders' general meeting and, for the avoidance of doubt, each of Yandex, Uber and the Foundation shall be entitled to vote its Shares in respect of such appointment. |
| 6.8 | Each Shareholder may require any Supervisory Director nominated by it to be removed or replaced by written notice to the Company. The Shareholders shall procure that any such removal or replacement shall be made in accordance with this Agreement and the Articles as soon as practicable after the relevant notice is delivered to the Company. Any Supervisory Director nominated by a Shareholder under this Clause 6 may be removed or replaced only in accordance with this Clause 6. |
| 6.10 | The Shareholder requiring a Supervisory Director to be removed in accordance with Clause 6.6 shall indemnify and hold harmless the Company for any liability arising from any such removal. |
| 6.11 | The Company shall promptly take such steps as are necessary in relation to any appointment or removal of any Supervisory Director under this Agreement, including to effect all relevant changes to the trade register of the Chamber of Commerce. |
| 6.12 | Each individual appointed pursuant to this Clause 6 shall be appointed for an indefinite term subject to the terms of this Agreement, the Dutch Civil Code and the Articles, unless removed or unless they resign in accordance with the terms of this Agreement or the Articles. Where the law provides for a maximum term of office, the Shareholders shall take all necessary actions to renew such appointment (unless such Supervisory Director is otherwise dismissed or resigns in accordance with the terms of this Agreement or the Articles) prior to the expiry of the term of office of such Supervisory Director. |
| 6.13 | Yandex shall nominate the Chairman of the Supervisory Board, and the Shareholders shall procure that the Supervisory Directors shall elect such person to act as the Chairman of the |
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| Supervisory Board. The Chairman of the Supervisory Board shall not have a second or casting vote or any other special voting powers. |
Remuneration
| 6.14 | The Supervisory Directors shall not be entitled to receive fees or remuneration from the Company in their capacity as supervisory directors of the Company or otherwise in connection with the performance of their duties as Supervisory Directors, except (if applicable) as may otherwise be agreed in writing by the Shareholders. The determination of any issues related to the remuneration of Supervisory Directors in their capacity as directors shall fall within the competence of the Shareholders. |
Confidentiality
Representation
| 7. | meetings of the Supervisory board |
Supervisory Board Meetings
| 7.2 | Any Supervisory Director shall be entitled to require the Company to convene a meeting of the Supervisory Board by giving written notice to the Company in which case the Company shall ensure that such meeting is promptly called in accordance with the provisions of this Agreement and the Articles. At least [***] written notice shall be given to each of the Supervisory Directors and each Shareholder of all Supervisory Board meetings (unless all the Supervisory Directors agree in writing to shorter notice). |
| 7.3 | Each notice of a Supervisory Board meeting shall be sent to each Supervisory Director and each Shareholder that has nominated (or is entitled to nominate) a Supervisory Director and shall: |
| 7.3.1 | specify a reasonably detailed agenda of the matters to be discussed at the meeting including all matters to be submitted for approval; |
| 7.3.2 | be accompanied by any relevant supporting documents; and |
| 7.3.3 | be sent by email, and may be supplemented by copies sent by courier. |
Any matter not on the agenda and described in reasonable detail may not be raised at the meeting unless all the Supervisory Directors agree.
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| 7.5 | Save in relation to a Reserved Matter, decisions taken outside formal Supervisory Board meetings (other than pursuant to Clause 7.12) shall, before going into effect, be ratified in a formal Supervisory Board meeting organised in accordance with 7.1. |
| 7.6 | The Shareholders shall use their reasonable endeavours to ensure that Supervisory Directors appointed or requested to be appointed by them attend Supervisory Board meetings that are convened in accordance with Clause 7.1. |
Quorum
| 7.9 | If a quorum is not present within 90 minutes of the time appointed for such re-convened meeting (or ceases to be present for 90 minutes), that meeting shall be adjourned to be held [***] later at the same time and place (unless all Supervisory Directors agree otherwise). Without prejudice to Clause 11 (Reserved Matters), the quorum at the second re-convened meeting shall be: |
| 7.9.1 | if a quorum was not present at the initial meeting and the first re-convened meeting due to the absence of an Uber Supervisory Director, at least four Supervisory Directors (including if any Yandex Supervisory Directors have been appointed at the relevant time, at least one Yandex Supervisory Director); otherwise |
| 7.9.2 | as set out in Clause 7.7. |
| 7.10 | Supervisory Directors shall be regarded as present for quorum purposes if represented in accordance with Clause 6.16. |
Voting at Supervisory Board meetings
| 7.11 | Each Supervisory Director shall have one vote (except that, for the avoidance of doubt, a Supervisory Director who is representing another Supervisory Director shall be entitled to exercise both his own vote and the vote of the other Supervisory Director that he represents). |
| 7.12 | Save in relation to a Reserved Matter that is considered by the Supervisory Board, all business arising at any Supervisory Board meeting shall be determined by resolution passed |
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| by a majority of the total votes of all Supervisory Directors present, entitled to vote and voting. Notwithstanding the foregoing, decisions of the Supervisory Board may also be taken without a meeting, without prior notice, and without a vote, by unanimous written resolution unless prohibited under the Articles and Applicable Law. |
| 7.13 | If there is a tie of votes in a vote taken in relation to the resolutions of the Supervisory Board, the proposal shall be deemed to be rejected. |
| 7.14 | The Shareholders shall ensure that the Company shall maintain its corporate seat, corporate registration and principal business address (including amongst others its administration, bookkeeping and main bank accounts) in the Netherlands. |
| 7.15 | The Company shall procure that minutes are prepared of each Supervisory Board meeting as soon as reasonably practicable following each Supervisory Board meeting and circulated to all Supervisory Directors for signature by at least one Yandex Supervisory Director and one Uber Supervisory Director. |
Committees
| 7.16.1 | Yandex shall be entitled, for so long as Yandex holds: |
| (A) | at least [***] of its Initial Proportion, to nominate the majority of members to the committee; and |
| (B) | at least [***] but less than [***] of its Initial Proportion, to nominate at least one (1) member to the committee; and |
| 7.16.2 | Uber shall be entitled, for so long as Uber maintains at least [***] of its Initial Proportion, to nominate at least one (1) member to the committee. |
7.17A committee constituted in accordance with Clause 7.16 may include, without limitation a:
| 7.17.1 | compensation committee; |
| 7.17.2 | audit committee; |
| 7.17.3 | nominations committee; |
| 7.17.4 | compliance committee; |
| 7.17.5 | Uber Excluded Territories Committee; and |
| 7.17.6 | Yandex Excluded Territories Committee. |
7.18Decisions of a committee shall be taken by majority resolution, subject to compliance with the Reserved Matters as set out in Schedule 2 of this Agreement.
| 7.19 | Save as otherwise agreed by the Shareholders or specified in Clause 7.16, the provisions of this Agreement and the Articles with respect to the regulation of meetings of the Supervisory Board shall apply, mutatis mutandis, to meetings of any committee. |
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| 7.21 | Notwithstanding Clause 7.20, the Supervisory Board shall exclude any Observer from access to any meeting or any portion thereof if the Supervisory Board reasonably believes that (a) such exclusion is reasonably necessary to satisfy its fiduciary duties, to preserve attorney-client privilege or to protect highly confidential proprietary information, (b) there is, or is reasonably likely to be, a conflict of interest between the Group, on the one hand, and such Observer, on the other hand, with respect to matters to be discussed or actions to be taken at such meeting, or (c) such Observer is a representative or otherwise affiliated with a Restricted Entity or otherwise a competitor of the Company or any of its Subsidiaries, or for other similar reasons. |
| 7.22 | Subject to Clause 12.12, each Shareholder shall procure that any Observer nominated by it in accordance with Clause 7.20 shall: |
| 7.22.1 | keep confidential (as contemplated by Clauses 29.4 to 29.6) all information which they receive about the Group and the Group Business or the Shareholders or their Affiliates or subsidiary undertakings or parent undertakings; and |
| 7.22.2 | enter into a confidentiality agreement with the Company on terms which are consistent with and not less restrictive than the confidentiality provisions of this agreement and those applicable to the Supervisory Directors, including without limitation provisions that shall not prejudice legal privilege or give rise to any regulatory or anti-trust issues for the Group. |
Recusal
Conflicts of interest
| 7.25 | A Supervisory Director who serves as supervisory director, officer or employee of any company or firm with which the Company (or other Group Company, as applicable) shall contract or otherwise engage in business shall not, solely by reason of such affiliation with such other company or firm, be held as having a Conflict of Interest for the purpose of Clause 7.24. |
Tax matters
| 7.27 | The Parties will take reasonable measures to ensure that the Company will at all times be compliant with Dutch law and regulations that have an effect on the tax position of the Company. |
| 8. | Indemnification of Managing DIRECTORS and Supervisory Directors, insurance and advancement of expenses |
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The Shareholders acknowledge and agree that the indemnification and advancement agreements in respect of each Managing Director and Supervisory Director shall provide for the following (and, for the avoidance of doubt, if there is any conflict between this Clause 8 and any indemnification and advancement agreement in respect of each Managing Director and Supervisory Director, then the provisions of this Clause 8 shall prevail to the extent permitted by Applicable Law):
| 8.1 | The Managing Directors and Supervisory Directors nominated by the Shareholders may have certain rights to indemnification, advancement of expenses and/or insurance provided by the applicable Shareholder that nominated them, which are intended to be secondary to the primary obligation of the Company to indemnify such Managing Directors and Supervisory Directors as provided herein. Notwithstanding anything contained herein to the contrary, the Company: |
| 8.1.1 | shall be the indemnitor of first resort (i.e., its obligations to such Managing Directors and Supervisory Directors are primary and any obligation of any Shareholder to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Managing Directors and Supervisory Directors are secondary); |
| 8.1.2 | shall be required to advance the full amount of expenses incurred by such Managing Directors and Supervisory Director and shall be liable for the full amount of all expenses, liabilities and losses reasonably incurred or suffered by such Managing Directors and Supervisory Directors to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between the Company and such Managing Director or Supervisory Director), without regard to any rights such Managing Directors and Supervisory Directors may have against any Shareholder; and |
| 8.1.3 | hereby irrevocably waives, relinquishes and releases each Shareholder from any and all claims against such Shareholder for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by any Shareholder on behalf of any Managing Director and Supervisory Director nominated by such Shareholder with respect to any claim for which such Managing Director or Supervisory Director has sought indemnification from the Company shall affect the foregoing, and the Shareholders shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Managing Director and Supervisory Director against the Company. |
| 8.2 | Upon Completion and thereafter upon the request of a Shareholder whose Equity Proportion is at least [***], the Company and the relevant Group Company shall: |
| 8.2.1 | obtain directors' and officers' liability insurance ("D&O Insurance") for the benefit of the Managing Director(s) and Supervisory Director(s) nominated by such Shareholder (as required by the requesting Shareholder) on customary terms that are satisfactory to that requesting Shareholder (acting reasonably) and, in any case, no less favourable than would be applicable to the Managing Directors and Supervisory Directors in their capacity as directors of any Yandex or Uber group company (as applicable) provided that such terms are available in the market of the relevant jurisdiction in which the D&O Insurance is obtained; and |
| 8.2.2 | terminate or renew any such D&O Insurance on the same or varied terms as are satisfactory to that requesting Shareholder (acting reasonably). |
8.3The Company shall be responsible for all costs and expenses of such D&O Insurance (including any amounts payable upon a termination or renewal requested pursuant to this Clause 8). Expenses incurred by Managing Director(s) and Supervisory Director(s) who may be entitled under any Applicable Law to advancement of expenses in defending any claim for which the Managing Director(s) and Supervisory Director(s) may be entitled to recourse under the D&O Insurance shall be payable by the Company.
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| 9. | Decisions OF SHAREHOLDERS OF THE COMPANY |
9.1Decisions of the Shareholders may be taken either at a Shareholders' general meeting or (where permitted under the Articles and by Applicable law) by written resolution of the Shareholders. Subject to the Articles and Applicable Law, on each occasion when decisions are to be taken by Shareholders, the Shareholders shall consider (acting reasonably) whether such decisions shall be taken by written resolution of the Shareholders (taking into account practicality, cost, legal, fiscal and other relevant considerations).
| 9.2 | Shareholders' general meetings shall take place in accordance with the Articles and Applicable Law in the Netherlands. Shareholders' general meetings (including adjourned meetings) may be convened by the Supervisory Board, and the Supervisory Board shall convene a Shareholders' general meeting upon the request of one or more Shareholders who together hold [***] or more of the Shares. |
| 9.3 | At [***] written notice (excluding the day on which the notice is given and the day on which the meeting is held) shall be given to the Shareholders of any Shareholders' general meeting (by email, and may be supplemented by copies sent by courier) unless a shorter notice period is approved by the Shareholders unanimously, and shall specify the location, date and time of the Shareholders' general meeting and an agenda specifying in reasonable detail the matters to be discussed at the Shareholders' general meeting together with all relevant matters to be approved to the extent then available; provided that if the holders of all Shares are present or represented at a Shareholders' general meeting, the Shareholders' general meeting may be held without prior notice. Matters not on the agenda, or business conducted in relation to those matters, described in reasonable detail, may not be raised at a Shareholders' general meeting unless all Shareholders agree in writing. |
| 9.4 | A Shareholder may act at a Shareholders' general meeting by appointing another person to serve as such Shareholder's proxy in writing. |
| 9.7 | If a quorum is not present within 90 minutes of the time appointed for such re-convened meeting (or ceases to be present for 90 minutes), the chairman of the Shareholders' general meeting shall adjourn the meeting to be held [***] after the original date at the same time and place (unless all Shareholders agree otherwise). Without prejudice to Clause 11 (Reserved Matters), the quorum at the second re-convened meeting shall be: |
| 9.7.1 | if a quorum was not present at the initial general meeting and the first re-convened general meeting due to the absence of Uber, for so long as Yandex holds at least [***] of its Initial Proportion, one representative of Yandex (whether in person, by authorised representative or by proxy); otherwise |
| 9.7.2 | as set out in Clause 9.5. |
9.8Except for the Reserved Matters and where otherwise required by Applicable Law, the Shareholders shall decide on matters by Shareholders holding more than half of the share capital of the Company.
| 9.9 | Subject to Clause 9.10, all Shareholders' general meetings shall be held at the registered office or at such other place within the Netherlands as shall be specified or fixed in the notices or waivers of notice thereof. |
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| 9.11 | The Company shall procure that minutes are prepared of each Shareholders' general meeting as soon as reasonably practicable following each Shareholder meeting and circulated to all Shareholders. |
| 10. | Corporate governance of subsidiaries |
10.2Pursuant to this Agreement and the relevant Charter (as amended or replaced pursuant to Clause 10.1), each Subsidiary shall have the following governing bodies:
| 10.2.1 | a general shareholders meeting or equivalent body; and |
| 10.2.2 | a sole executive body comprised of the general director (in Russian, генеральный директор), the managing director or the equivalent of a managing director (as applicable), |
provided that, in the event the Applicable Laws require that the structure of governing bodies of any Subsidiary to be different to the one contemplated above, the Parties shall work together to procure the relevant amendment to the Charter of such Subsidiary as may be required, provided in all cases that the provisions of such amended Charter shall comply with the provisions of this Agreement to the fullest extent permitted by Applicable Law and, without limiting the generality of the foregoing, no decision in respect of any Reserved Matters is taken other than with the consent of Uber or an Uber Supervisory Director in accordance with Clause 11 (Reserved Matters).
| 10.3 | Where the Supervisory Board or the Shareholders (as the case may be) have passed a decision, in accordance with the provisions of this Agreement and the relevant Charters, in relation to any Subsidiary which is not a direct Subsidiary of the Company ("Affected Subsidiary"), the Shareholders and the Company shall procure, so far as they are legally able, that the relevant governing bodies of the Subsidiary being the direct shareholder or participant of such Affected Subsidiary shall pass all corporate decisions as necessary in order to implement the Supervisory Board's or Shareholder's (as the case may be) decision in relation to such Affected Subsidiary. |
10.4The Charter of each Subsidiary shall expressly provide for all Reserved Matters (to the extent applicable) in relation to such Subsidiary (or any subsidiary of that Subsidiary) to be resolved at the general shareholders meeting of that Subsidiary.
| 11. | RESERVED MATTERS |
Approval of Reserved Matters
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| any of the matters listed in Schedule 2 ("Reserved Matters") without the prior written approval of: |
| 11.1.1 | (if the matter is to be considered by the Shareholders, as indicated in Clause 11.2 and Schedule 2), Uber; and |
| 11.2 | The Shareholders agree that: |
| 11.2.1 | all Reserved Matters marked in bold and italics in Schedule 2 shall be considered and resolved by the Shareholders; and |
| 11.2.2 | all other Reserved Matters shall be considered and resolved by the Supervisory Board. |
| 11.3 | If Uber or the Uber Supervisory Directors (as applicable) do not provide written approval with respect to a Reserved Matter, the Company and the Subsidiaries shall not be entitled to transact on such Reserved Matter. |
Reserved Matter escalation process
| 11.4.1 | in the case of a proposal before the general meeting of Shareholders, Uber either (i) failed to attend two successive such general meetings at which such Reserved Matter is duly proposed, or (ii) voted against or abstained on the vote in respect of such proposal, with the result that it was not approved as a Reserved Matter; |
| 11.4.2 | in the case of a proposal before the Supervisory Board, either (i) two successive meetings of the Supervisory Board (excluding a meeting adjourned in accordance with Clause 7.8) the agenda for which meetings includes such proposal are inquorate by reason of the absence of one or more Uber Supervisory Directors, or (ii) one or more Uber Supervisory Directors voted against or abstained on the vote in respect of such proposal, with the result that it was not approved as a Reserved Matter; or |
| 11.4.3 | in the case of a Written Request, Uber or one or more Uber Supervisory Directors (as appropriate) has failed within [***] of such Written Request to provide its or his written consent in respect of the relevant proposal, with the result that it was not approved as a Reserved Matter. |
| 11.5 | Yandex may within [***] of the occurrence of an Escalation Matter in accordance with Clause 11.4 serve written notice on Uber (an "Escalation Notice"): |
| 11.5.1 | stating that in its opinion an Escalation Matter has occurred; and |
| 11.5.2 | identifying the Reserved Matter giving rise to the Escalation Matter. |
| 11.6 | The Shareholders undertake that they shall: |
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| 11.7 | If an Escalation Matter is not resolved pursuant to the escalation mechanism outlined in Clauses 11.4, 11.5 and 11.6 the Reserved Matter will not be implemented and the status quo preserved. |
RP Claims
11.8Subject to Clause 11.10, a Shareholder that is, or a Related Party of which is, a party to a Related Party Contract shall exercise its voting rights at any Shareholders' general meeting convened to decide on such matter in accordance with the instructions of those Shareholders who are not parties to the Related Party Contract giving rise to such RP Claim.
11.9Subject to Clause 11.10, a Supervisory Director appointed by a Shareholder that is, or a Related Party of which is, a party to a Related Party Contract shall not be entitled to vote on any Supervisory Board resolution in relation to an RP Claim and no Supervisory Board meeting at which a resolution in relation to a RP Claim is considered shall be inquorate by virtue of the absence of Supervisory Directors appointed by the Shareholder that is (or whose Related Party is) a party to a Related Party Contract.
11.10Without prejudice to Uber's rights pursuant to Clauses 11.8 and 11.9 in respect of the Drive Contribution Agreement, such Clauses shall not limit Yandex's rights and benefits pursuant to paragraph 13 (Actions by Third Parties) of Schedule 3 (Limitations of Liability) of the Drive Contribution Agreement.
| 12. | FINANCIAL MATTERS AND INFORMATION |
Auditors
12.1The auditors of the Group shall be one of the Approved Auditors or such other auditors as may be approved by the Supervisory Board or the Shareholders in accordance with Clause 11 (Reserved Matters), and the first such auditor shall be KPMG.
Financial year
12.2The Company's financial year shall be 1 January to 31 December.
Information
| 12.3.1 | allow each of Yandex and Uber (and their advisers and Affiliates) to examine the books, records and accounts of each Group Company on reasonable notice, during normal business hours; and |
| (A) | relating to the Group Business or otherwise to the affairs and financial or other position of each Group Company as is reasonably requested by Yandex or Uber to keep it properly informed about the business and affairs of the Group; |
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| (B) | required by Yandex or Uber to verify compliance by the Company with the obligations set out in Clauses 15.3 and 15.5 (Continuing Obligations), and the on-going compliance of the Group with the policies, procedures and programmes set out in Clauses 15.3 and 15.5 (as applicable); and |
| (C) | that is in the possession of the Company or another Group Company and which is reasonably required by Yandex or Uber for the purposes of compliance with the requirements of any Governmental Authority that regulates Yandex or Uber or any of their Affiliates or any internal policies applicable to Yandex or Uber or any of their Affiliates (as applicable). |
12.4Without prejudice to the generality of Clause 12.3, the Company shall supply each of Yandex and Uber with copies of:
| 12.4.1 | each Budget, approved in accordance with Clause 13 (Budgets); |
| 12.4.3 | monthly unaudited management accounts of the Group with (i) key performance indicators, and (ii) management commentaries on the Group's performance, as soon as reasonably practicable after the end of the month to which they relate and in any event within [***] thereafter. These shall include a consolidated profit and loss account, balance sheet and cash flow statement, including a statement of progress against the then current Budget and up-to-date forecasts for the balance of the relevant financial year; and |
| 12.4.4 | a summary of any matters or series of matters which has had or is reasonably likely to have, in each case in the reasonable opinion of the Company, a material adverse effect on the business, property, operations or condition (financial or otherwise) of the Company or the Group, except for matters that comprise a change in general economic conditions or outlook, financial, credit or securities markets or political or regulatory conditions, whether globally or in any country (including Russia) or market unless such change has or can reasonably be expected to have a disproportionate effect on the Group as compared to other companies operating in the countries or jurisdictions in which the Group operates. |
Annual accounts
| 12.5 | Without prejudice to the generality of Clause 12.3, the Company shall supply each of Yandex and Uber with: |
| 12.5.3 | copies of audited consolidated annual financial statements of the Group, prepared in accordance with U.S. GAAP, in respect of each financial year of the Company, |
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| as soon as reasonably practicable after the end of each financial year and in any event within the period specified by Applicable Law and in any event (unless otherwise agreed by the Parties) no later than [***] after the end of the 2018 financial year and each subsequent financial year, |
and the Company shall provide Yandex and Uber with the opportunity to review and provide reasonable comments on such drafts (referred to in Clause 12.5.2) prior to providing copies of the audited consolidated financial statements of the Group in accordance with Clause 12.5.3.
and the Company shall provide Uber with the opportunity to review and provide reasonable comments on such drafts (referred to in Clause 12.6.2) prior to providing copies of the audited consolidated financial statements of the Group in accordance with Clause 12.6.3.
Quarterly accounts
| 12.7 | Without prejudice to the generality of Clause 12.3, the Company shall supply each of Yandex and Uber with: |
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| Uber and Yandex with a draft of such reporting package no later than [***] after (i) the end of the first applicable quarter following Completion and (ii) each subsequent quarter of each financial year and the Company shall provide Yandex and Uber with the opportunity to review and provide reasonable comments on such drafts prior to providing the final quarterly reporting package. |
| 12.8 | Notwithstanding Clause 12.7, and without prejudice to the generality of Clause 12.3, following an Uber IPO, the Company shall supply Uber with: |
| 12.8.1 | the Group's condensed consolidated profit and loss account, balance sheet, trial balance and cash flow statement, in respect of each quarter of each financial year of the Company, as soon as reasonably practicable after the end of each quarter of each financial year and in any event (unless otherwise agreed by the Parties) no later than [***] after the end of (i) the first applicable quarter of the financial year following an Uber IPO and (ii) each subsequent quarter of each subsequent financial year; and |
| 12.12 | Subject to Clauses 3.6 and 3.8 to 3.13 (inclusive), each of Yandex, Uber and the Company agree that, for the purposes of Clauses 6.15, 7.22 and 12.3 to 12.11 (inclusive) and |
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| otherwise, the Supervisory Directors and Managing Directors shall be entitled to pass any information (with the exception of any commercially sensitive information, as reasonably determined unanimously by the Supervisory Board) relating to any Group Company, the Group Business or affairs of any of the Group Companies, received by such persons in their capacity as Supervisory Directors or Managing Directors, to Yandex or Uber that appointed such Supervisory Director or Managing Director, and neither Yandex, Uber nor the Company shall raise any objection to such passing of information nor allege any breach of any duty of confidence to the Company or any other Group Company as a result of such action. Any such information provided as contemplated by this Clause shall be Confidential Information for the purposes of this Agreement and Clauses 29.4 to 29.6 shall apply to it. |
Audit rights
12.14Without limiting Clause 12.3, each of Yandex and Uber shall, subject to Applicable Law (including those relating to competition or antitrust), be entitled to full audit rights with respect to the Group, its activities and its books and records, provided that such audit rights of Yandex or Uber as applicable shall be limited to: (a) a maximum of two audits in any rolling period of three financial years; and (b) a maximum of one audit in any single financial year. Accordingly, the Group shall cooperate (and Yandex and Uber shall procure that the Group cooperates) with any audit initiated by Yandex or Uber and shall promptly grant to Yandex or Uber (as applicable) and, if requested by Yandex or Uber, its advisors, consultants, agents or other representatives: (i) access to any books, records, information and systems (including without limitation receipts and expenses) relevant to the subject matter of the audit; and (ii) access to the Group's premises and properties for the purpose of carrying out the audit, in each case on reasonable notice and during its normal business hours. Yandex and Uber shall make themselves available to discuss the business and records of the Group with the party that requested the audit and its or their advisors, consultants, agents and representatives (including all information reasonably required by Yandex or Uber to comply in a timely manner with their own reporting obligations to their own investors or any Governmental Authority).
| 12.16 | All fees and costs relating to an audit under Clause 12.14 shall be borne by the party (being, either Yandex or Uber (as the case may be)) that initiated the audit. |
| 13. | BUDGETS |
| 13.1 | The Supervisory Board shall approve the Budgets for the 2018 financial year and all subsequent periods in accordance with Schedule 8 (Budget). |
| 14. | branding |
| 15. | CONTINUING OBLIGATIONS |
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Internal controls and compliance
| 15.1 | The Supervisory Board shall implement and maintain an internal control manual, a yearly review of the Group's internal control procedures (requiring an annual compliance report to the Supervisory Board) and an internal audit system and internal controls. Meetings of the compliance committee of the Supervisory Board shall be held in the Netherlands. |
Anti-Bribery and Corruption
15.2In their capacity as shareholders of the Company, the Shareholders shall not, and the Company shall not, and the Company shall procure that each of the other Group Companies shall not, whether directly or through any other persons acting on their behalf, engage in any Corrupt Act or violate, incur any liability under or become subject to penalty under any Corruption Laws, or knowingly cause any Shareholder to violate, incur any liability under or become subject to penalty under, or request any action, inaction or services that would violate any Corruption Laws. The applicable Shareholder or the Company (as the case may be) shall promptly notify each other Party of any breach of this Clause 15.2.
Ethical policies
15.3The Shareholders and the Company agree that as soon as practicable, and by no later than three (3) months following Completion the Company will adopt, implement and maintain, the following policies and procedures:
| 15.3.2 | written policies and/or procedures for the Group reasonably designed to ensure compliance with Applicable Laws, to be applied as appropriate to all current and future operations, addressing, without limitation, Applicable Laws relating to conduct of business and ethics, employment law and health and safety regulations. |
Subject to Clause 11 (Reserved Matters), the Shareholders agree that: (a) any such policies and procedures must be tailored to the Group Business, including the jurisdiction(s) in which it operates and the Applicable Laws that are relevant to the Group Business and the Group; (b) the first draft of such policies and procedures shall be prepared by the Company with the assistance of an international law firm and in consultation with each of Yandex and Uber; and (c) the final form of such policies and procedures (and any amendments thereto) shall be agreed by each of Yandex and Uber (acting reasonably) and approved by the Supervisory Board.
Sanctions
15.4The Company shall not, and shall procure that, in the course of their duties for the Company and/or any of the Subsidiaries, the Subsidiaries and its and their officers, directors and employees shall not:
| 15.4.1 | contribute or otherwise make available, directly or knowingly indirectly to, or for the benefit of, any person (whether or not related to any Group Company) any part of any funds received (directly or indirectly) by the Company and/or any of the Subsidiaries from any Shareholder (i) to fund any activities or business of or with any person or in any country or territory in violation of applicable Sanctions; or (ii) to fund any business in circumstances where it knows, or could reasonably be expected to know, that the application of those funds will be applied towards any illegal or criminal activity; or |
| 15.4.2 | engage in, facilitate or fund, directly or knowingly indirectly, any unauthorised business activities (including, but not limited to, imports, exports, reexports, or transfer of products, services, or technology) with, or for the benefit of: |
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| (A) | any person in violation of applicable Sanctions; or |
| (B) | a person that is a Restricted Party; or |
| 15.4.3 | engage in any transaction, activity or conduct: |
| (A) | that would cause a Group Company to violate any Sanctions; or |
| (B) | that would reasonably be expected to result in a Group Company being designated as a Restricted Party or a target of Sanctions. |
15.5The Shareholders and the Company agree that within three (3) months following Completion the Company shall adopt, implement and maintain written policies and procedures for the Group reasonably designed to ensure compliance with Clause 15.4 and Sanctions.
US Tax covenants
15.7If the filing of a U.S. tax election is required pursuant to Schedule 7, Uber or any U.S. Investor (as applicable) requesting such election shall provide the relevant Group Company with a template of the relevant filing form or statement and shall reimburse the relevant Group Company for the reasonable costs incurred as a result of making such filing if such filing is made by the relevant Group Company. Each Shareholder shall promptly notify the Company if (a) it becomes a U.S. Investor (or an Affiliate of a U.S. Investor); or (b) ceases to be a U.S. Investor.
Undertakings in respect of the Company and the Subsidiaries
15.8The Company shall:
| 15.8.2 | with effect from the date of this Agreement, the Parties undertake to comply with the Deed of Covenant in accordance with its terms; |
| 15.8.3 | within one (1) month from Completion: |
| (A) | amend the Charters of the Subsidiaries to reflect the provisions of this Agreement; and |
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| conditions of the Restructuring to be effectuated as promptly as practicable after Completion. The Restructuring shall at all times comply with the provisions of Section 8.3 (Tax Consequences) of the Contribution Agreement and Clauses 4.2 and 4.3 of Schedule 7. |
| 16. | DIVIDENDS |
Any dividends shall be recommended, declared and otherwise paid in accordance with Clause 11 (Reserved Matters) and the Articles.
| 17. | further Financing |
17.1No Shareholder shall be obliged to:
| 17.1.1 | save for contributions contemplated by Recital (A), contribute any funds (whether in the form of debt or equity) to any Group Company; or |
| 17.1.2 | give any security or provide any guarantee on behalf or for the benefit of any Group Company. |
| 18. | Issues of New SECURITIES |
18.1With the exception of those Shares issued by the Company to the Foundation under the Roll-Over and those to be issued to Yandex pursuant to the Drive Contribution Agreement, and otherwise without prejudice to Clause 11 (Reserved Matters), the Company shall not issue, agree to issue, or reserve or set aside for issuance any new Shares or other securities of the Company ("New Securities"), unless it first complies with Clauses 18.2 to 18.10.
| 18.2.1 | A Shares or securities exercisable or convertible into A Shares (including any issue of the same in respect of the Equity Incentive Pool); or |
| 18.2.2 | with the consent of Yandex and Uber, B Shares or securities exercisable or convertible into B Shares. |
| 18.3 | If the Company proposes to issue any New Securities, the Supervisory Board shall deliver to each of Yandex and Uber a written notice in relation to such issuance (a "Pro-rata Offer"), which shall: |
| 18.3.1 | identify and describe the New Securities subject to the issuance; |
18.5Yandex and Uber may accept a Pro-rata Offer by irrevocable notice of acceptance to the Company within the Acceptance Period. Yandex and Uber are not required to subscribe for their full Pro-rata Entitlements and may do so in part only or not at all. In the event that either Yandex or Uber does not subscribe for its Pro-rata Entitlement fully, that Shareholder's Equity Proportion may be diluted accordingly.
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18.9In respect of any New Securities that are new Shares or that are securities convertible into Shares, it shall be a condition of the issue or disposal of any of those New Securities to a third party or third parties pursuant to Clause 18.8 that the subscriber enters into a Deed of Adherence.
N = ((PIP/WA) x Z) - Z
Where:
N: the number of Anti-Dilution Shares to be issued to Uber.
DRP: the price per share in US dollars of the Qualifying Issue.
NS: the number of New Securities issued pursuant to the Qualifying Issue.
PIP: the Entry Price in US dollars.
SC: the number of shares in issue plus the aggregate number of shares in respect of which options to subscribe have been granted, or which are subject to convertible securities (including, but not limited to, warrants), in each case immediately prior to the Qualifying Issue.
W: [***]
WA: (PIP x SC) + (DRP x NS)/ (SC + NS).
Z: [***]
| 18.12 | The Anti-Dilution Shares shall: |
| 18.12.1 | be paid up by the automatic capitalisation of available reserves of the Company; |
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| 18.12.2 | within [***] of the Date of the Qualifying Issue be issued to Uber in accordance with the Articles and credited as fully paid up in cash; and |
| 18.12.3 | shall rank pari passu in all respects with the existing B Shares. |
| 19. | TRANSFERS OF SHARES |
General restriction on transfers
| 19.1.1 | no Shares nor any interest therein or in respect thereof shall be Transferred to, conferred upon or become vested in any person other than the transfer of the whole legal and equitable title to such Shares carried out in accordance with this Agreement and the Articles; and |
| 19.1.2 | no Shareholder shall Transfer, or agree to Transfer, any Shares nor any interest therein or in respect thereof without the prior written consent of the other Shareholders unless to a Permitted Affiliate in accordance with Clauses 19.4 to 19.6 (Transfer to Permitted Affiliates), or in accordance with the relevant provisions of Clause 20 (Right of First Refusal), Clause 21 (Tag Along Rights), Clause 22 (Liquidity Event), Clause 23 (Qualified IPO) and Clause 24 (Drag Sale) and any such act, or any other dealing or attempted dealing or disposal of any Shares or any interest therein or in respect thereof, other than as so permitted by this Agreement, shall be of no effect, and shall not be enforceable towards the Company, the Company shall not recognise such Transfer, and the Shareholders and the Supervisory Board shall not give effect to such Transfer nor record such Transfer in the Company's securities registers nor treat any purported transferee of such Shares as the owner of such Shares for any purpose whatsoever. |
Lock-up Period
Prohibited Transferees
19.3Notwithstanding any provision in this Agreement, following the expiration of the Lock-up Period and prior to a Qualified IPO, Uber shall not Transfer any Shares nor any interest therein or in respect thereof to a Prohibited Transferee without the prior written consent of Yandex.
Transfers to Permitted Affiliates
19.4Nothing in this Clause 19 shall prohibit a Transfer by a Shareholder of all or any of its Shares to a Permitted Affiliate provided that:
| 19.4.1 | the proposed transferee: |
| (A) | is not subject to and is not reasonably likely to be subject to receivership, bankruptcy, insolvency, dissolution, liquidation or any similar proceedings; |
| (B) | executes a Deed of Adherence prior to the Transfer taking place; |
| (C) | shall have demonstrated to the reasonable satisfaction of the other Shareholder(s) that: |
(1)that the ultimate beneficial owner(s) of the transferor will retain Control over such transferee; and
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(2)such transferee is capable of performing the obligations of a Shareholder under this Agreement; and
| (D) | is under an obligation to retransfer its Shares to the transferor if, and before, the transferee ceases to be a Permitted Affiliate of the transferor; and |
| 19.4.2 | the transferring Shareholder gives at least [***] prior written notice of the transfer to the other Shareholder(s), including the name of the transferee and evidence reasonably satisfactory to the other transferees of such transferee's status as a Permitted Affiliate. |
| 19.5.1 | where the original transferring Shareholder transfers some (but not all) of its Shares to a Permitted Affiliate (but not a subsequent transferor in a series of such transfers), that Shareholder shall remain a party to this Agreement and shall be jointly and severally liable with the transferee (and any subsequent transferee) under this Agreement as a Shareholder in respect of the transferred Shares; |
| 19.5.2 | where the original transferring Shareholder transfers all (but not some only) of its Shares to a Permitted Affiliate, that Shareholder shall, provided that it transfers all accrued liabilities and obligations to the Permitted Affiliate, be released from all of its obligations under this Agreement and the Parties shall execute and deliver such documents as are reasonably required so as to give effect to such transfer of liabilities and obligations and release; |
| 19.5.3 | where the transferring Shareholder transfers some, but not all, of its Shares, the transferring Shareholder shall procure that its Permitted Affiliate transferee complies with its obligations under the Deed of Adherence; and |
| 19.5.4 | the transferring Shareholder shall procure that prior to any of its transferee Permitted Affiliates ceasing to be a Permitted Affiliate, or becoming subject to or being reasonably likely to be subject to receivership, bankruptcy, insolvency, dissolution, liquidation or any similar proceedings, that Permitted Affiliate shall transfer all Shares held by it to such Shareholder (or another Permitted Affiliate of such Shareholder fulfilling the requirements of Clause 19.4). |
Deed of Adherence
19.6Without prejudice to Clauses 19.8, 19.10, 19.11, 30.2 and 30.3, any person executing a Deed of Adherence in accordance with this Agreement shall be entitled to the rights provided for by this Agreement as if it were a Party hereto for so long as they are registered as a Shareholder in respect of the Shares transferred to them.
Rights upon transfer
| 19.9 | If Yandex transfers some (but not all) of its B Shares (other than to a Permitted Affiliate) such that Yandex owns directly or indirectly (i) less than [***] of its Initial Proportion or (ii) a number of B Shares that is equal to or less than the number of B Shares held by Uber, Yandex shall lose all specific and preferential rights under this Agreement that are granted to Yandex but are not granted to Uber (including, without limitation, pursuant to Clauses 5 (The |
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| Management Board), 6 (The Supervisory Board), 7 (Meetings of the Board), 9 (Decisions of the Shareholders of the Company), 10 (Corporate Governance of Subsidiaries), 11 (Reserved Matters) and for the avoidance of doubt Clauses 19 (Transfers of Shares), 20 (Rights of First Refusal), 21 (Tag Along Rights), Clause 22 (Liquidity Event), Clause 23 (Qualified IPO) and Clause 24 (Drag Sale)) and, with immediate effect from the date of each such transfer, this Agreement shall be deemed to have been varied and amended to the maximum extent possible so as to provide that Uber shall have rights pari passu with, and substantially equal to, the rights of Yandex. |
Permitted Transfers
19.12Each Shareholder expressly and irrevocably undertakes and agrees to vote in favour (if necessary) of any contemplated transfer proposed to be made in compliance with the terms of this Agreement (a "Permitted Disposal"), and to exercise any and all powers and rights available to it to authorise a Permitted Disposal, in accordance with the Articles and the mandatory provisions of Dutch law, including but not limited to holding a general meeting of the Shareholders for the purpose of resolving upon any Permitted Disposal.
| 19.13 | If the Management Board and Supervisory Board are reasonably satisfied that a transfer of Shares complies with the terms of this Agreement, the Articles and any Applicable Law, the Management Board shall promptly take appropriate action to procure that such transfer is recorded in the Shareholders’ register of the Company and with the trade register of the Chamber of Commerce. |
Shares
19.14The Company shall hold and maintain at its registered office a register showing (i) the identity of each Shareholder (in accordance with the Dutch Civil Code), (ii) the number of Shares held by each Shareholder, (iii) any transfer of the Shares and the date on which they were notified or accepted by the Company, and (iv) any Encumbrances created over any Shares in accordance with this Agreement.
Approval and Registration of Share Transfers
| 19.16 | The approval and registration of Share Transfers in accordance with Clause 19.15 includes the requirement for Shares to be Transferred through the execution of a notarial deed of transfer before the Transferor, Transferee and the Company. The Company must register the Transfer in the Company's Shareholder register, but such registration is not a requirement for the Transfer to be effective. |
| 20. | RIGHT OF FIRST REFUSAL |
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| 20.1.1 | is for non-deferred and non-contingent cash consideration or equivalent Non-Cash Consideration payable or otherwise transferable upon completion of the relevant Transfer; |
| 20.1.2 | states the name and ultimate beneficial owner(s) of the Third Party Purchaser to whom the Selling Shareholder propose to sell the Shares which are the subject of the Offer; |
| 20.1.3 | contains all of the Key Terms of the proposed transfer, which shall be the same as the Key Terms of the Offer; and |
| 20.1.4 | is conditional only upon the receipt of all Regulatory Approvals for the proposed Transfer, and payment of the proposed consideration for such Transfer, |
and in circumstances in which the Selling Shareholder complies with the remaining provisions of this Clause 20.
20.3If a ROFR Acceptance Notice is given with respect to any or all Shares the subject of the Transfer Notice within the ROFR Period, the accepting Other Shareholder shall be bound to buy, and the Selling Shareholder shall be bound to sell to such Other Shareholder, the Shares specified in the ROFR Acceptance Notice on the Key Terms and in accordance with the Transfer Terms.
| 20.4 | If a ROFR Acceptance Notice is not given with respect to all of the Shares the subject of the Transfer Notice within the ROFR Period, the Selling Shareholder may at any time within [***] after the expiry of the ROFR Period transfer, such remaining number of Shares which the Other Shareholder did not subscribe for under the ROFR Acceptance Notice(s), to the Third Party Purchaser that made the Offer (and to no other Third Party Purchaser), provided that: |
| 20.4.1 | the transfer is on the Key Terms contained in the Offer (or terms that are more advantageous to the Selling Shareholder); |
| 20.4.2 | the Third Party Purchaser is not a Prohibited Purchaser; |
| 20.4.4 | if the Transfer is not completed within the [***] period referred to above, the Selling Shareholder shall not be entitled to transfer its or their Shares without serving a further Transfer Notice in accordance with this Clause 20, |
and subject further to Clause 21 (Tag Along Rights) and the Transfer Terms.
20.5A Transfer Notice and a ROFR Acceptance Notice shall each be governed by English law and be irrevocable.
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| 21. | TAG ALONG RIGHTS |
| 21.1 | Within [***] of: |
| 21.1.1 | receipt of written notice from either Yandex or Uber (for the purposes of this Clause 19, a Selling Shareholder) of its consent to the other Shareholder (for the purposes of this Clause 19, the Other Shareholder) Transferring some or all of its Shares (or any interest therein or in respect thereof) prior to the expiry of the Lock-up Period in accordance with Clause 19.2; or |
| 21.1.2 | receipt of a Third Party Completion Notice (which, for the avoidance of doubt shall only occur after the expiry of the Lock-up Period and at any time prior to a Qualified IPO); |
the Other Shareholder shall be entitled, by written notice to the Selling Shareholder (the "Tag Along Notice"), to require that the Selling Shareholder comply with Clause 21.2.
21.2Upon delivery of a Tag Along Notice by the Other Shareholder within the period specified in Clause 21.1 (the Other Shareholder, a "Participating Shareholder"):
| 21.2.1 | subject to Clauses 21.2.1 and 21.2.4, the Participating Shareholder shall be bound to participate in the transfer to the Third Party Purchaser in accordance with its terms and conditions; |
| 21.2.2 | the Selling Shareholder shall use its or their reasonable endeavours to procure that the Third Party Purchaser purchases, or procures the purchase of the proportion of the Shares held by each Participating Shareholder equal to the proportion which the number of Shares to be transferred by the Selling Shareholder bears to the total number of Shares held by the Selling Shareholder immediately prior to such sale; |
| 21.2.3 | at the same time and on the same Key Terms as the Third Party Purchaser purchases the Shares held by the Selling Shareholder; and |
21.3A Tag Along Notice shall be irrevocable and shall be governed by English law.
| 22. | liquidity event |
22.1The Parties acknowledge and agree that the terms and conditions of any Liquidity Event shall be consistent with the then prevailing international standard practice.
| 22.2.1 | cooperate with (and procure so far as it lawfully can that each Group Company and each Supervisory Director and Managing Director it has nominated for appointment to the Company, shall cooperate with) the Company and its financial and other advisers in order to achieve such a Liquidity Event; |
| 22.2.3 | subject to Clause 22.1, do all such acts and things and execute all such documents and deeds as it may reasonably be requested to do by the Company or any other Shareholder for the purposes of achieving the Liquidity Event (provided that no |
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| Shareholder shall be required to agree to do any such act or thing which shall have the effect of imposing upon it an obligation to contribute a greater amount of capital or other funds (whether in cash or kind) to the Company than it is already obliged to contribute). The Shareholders shall act in good faith and use reasonable endeavours to seek to minimise the extent of the other Shareholder's obligations under this Clause 22.2.2. |
Potential Third Party Purchasers
22.4Each Shareholder shall notify the other Parties as soon as reasonably practicable of any good faith approach from a potential Third Party Purchaser who is interested in acquiring any shares in a Group Company or a substantial part of the Group Business.
| 23. | QUALIFIED IPO |
| 23.1.1 | after Completion and before the [***] of Completion, a Qualified IPO shall require the written consent of both Yandex and Uber; |
| 23.1.2 | after the [***] of Completion, Yandex shall have the right but not the obligation to initiate a Qualified IPO without the written consent of Uber; and |
| 23.2 | If either Yandex or Uber seek to exercise its rights under Clause 23.1 it must give notice in writing to the Company and the other Shareholder ("Qualified IPO Notice"). |
ROFO on deferral of Qualified IPO
| 23.5 | In the event of a proposed Transfer by Uber to a Third Party Purchaser in circumstances described in Clause 23.4, Uber shall by notice in writing (a "ROFO Notice") to Yandex: |
| 23.5.1 | state that it desires to sell some or all of its Shares; |
| 23.5.3 | offer the Shares for purchase by Yandex at the Prescribed Price and on the Prescribed Terms (the "ROFO Offer"). |
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| 23.7 | Any transfer of Shares to Yandex in accordance with the ROFO Offer shall be in accordance with the Transfer Terms and completed at a place and time to be appointed by Uber by notice in writing to Yandex, such date being not later than [***] after the date of the relevant ROFO Acceptance Notice. |
| 23.8.1 | price at which the Shares are sold to any Third Party Purchaser shall not be less than the Prescribed Price and the terms and conditions of such sale shall not be materially more favourable to the Third Party Purchaser than the Prescribed Terms; |
| 23.8.2 | Third Party Purchaser is not a Prohibited Purchaser; and |
| 23.8.3 | Transfer is completed within [***] after the date of the ROFO Notice, |
and further subject to the Transfer Terms.
Conduct of Qualified IPO
| 23.9 | If a Shareholder initiates a Qualified IPO (and such Qualified IPO is not deferred in accordance with Clause 23.3) the Company must promptly proceed with preparation and implementation of the Qualified IPO and must take each of the following steps as directed by the Supervisory Board, taking into consideration the views, preferences and recommendations of the initiating Shareholder: |
| 23.9.1 | instruct professional advisers to advise the Supervisory Board and the Company on the Qualified IPO, including accountants, lawyers, valuers and actuaries; |
| 23.9.2 | engage underwriters for the Qualified IPO which are chose by the initiating Shareholder provided they are reasonably acceptable to the Company; |
| 23.9.3 | establish a due diligence committee for the Qualified IPO and undertake a due diligence review of the Company in accordance with any procedures and guidelines established by that committee; |
| 23.9.4 | prepare a prospectus and other necessary offering documentation for the Qualified IPO; |
| 23.9.5 | make listing applications and filings with the relevant Governmental Authorities; |
| 23.9.6 | enter into underwriting agreement(s) with the underwriter(s) on customary terms; and |
| 23.9.7 | in the case of a US Qualified IPO, any additional requirements set out in Schedule 4 (Registration Rights). |
| 23.10 | The conduct of a US Qualified IPO shall be deemed a Company registration under Clause 2.2 of Schedule 4 and Uber shall have the registration rights set forth therein. |
Participation in a Qualified IPO
| 23.11 | Each Shareholder must take the following steps promptly upon receiving written request from the Supervisory Board confirming that such steps are necessary to facilitate the preparation and implementation of the Qualified IPO: |
| 23.11.1 | in proportion to its Shareholding (and on pro rata basis as between the two Shareholders), offer for sale under the Qualified IPO no fewer than that number of its Shares, if any, necessary to result in a percentage of the then issued Shares as |
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| may be necessary to meet the minimum listing requirements of the relevant stock exchange or listing authority to be in public hands; |
| 23.11.2 | enter into agreements as a shareholder of the Company to agree to, and pass necessary shareholder resolutions to approve, the Qualified IPO, including any issue of Shares by the Company or offer of Shares for sale under the Qualified IPO offered by the Shareholder; |
| 23.11.3 | as and when required under any Applicable Law, or as reasonably required by the underwriters for the Qualified IPO, agree to be bound by restrictions on disposal of Shares and give such warranties and undertakings (on a several and pro rata basis) required by the underwriters as the Supervisory Board may consider usual in similar transactions; |
| 23.11.4 | capitalise or otherwise reorganise any Shareholder loans in such a way as may be fair and equitable to the Shareholders; and |
| 23.11.5 | any other steps which may be reasonably required to be taken on the part of the relevant Shareholder for the preparation and implementation of the Qualified IPO. |
| 23.13 | The restrictions in Clause 23.12 shall survive termination of this Agreement and shall only apply only to the Company’s initial offering of equity securities. |
Registration rights
| 24. | Drag Sale |
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| 24.2 (Right of First Refusal), Yandex shall be entitled to give a notice in writing to Uber pursuant to Clause 24.4 (a "Drag Along Notice") within [***] of receipt of the Exit Offer. A Drag Along Notice shall be irrevocable and shall be governed by English law. A Drag Along Notice shall include the name of the Third Party Purchaser(s) and, to the extent known by Yandex after using reasonable endeavours to find out the same, the name of the ultimate beneficial owner(s) of such Third Party Purchaser(s). |
| 24.4.2 | Uber shall not be required to make any representation or warranty to the Third Party Purchaser(s) pursuant to the Drag Sale other than warranties as to: (i) good title to the Shares it transfers; (ii) the absence of any Encumbrance with respect to its Shares; and (iii) its capacity and authority to undertake the proposed transfer of its Shares; |
| 24.4.3 | Uber is not liable for the breach of any representation, warranty or covenant made by any other Person in connection with the Drag Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); |
| 24.4.4 | the liability for indemnification, if any, of Uber in the Drag Sale and for the inaccuracy of any representations and warranties made by Uber or the Company to the Third Party Purchaser(s) in connection with the Drag Sale, is several and not joint with the Company or Uber, and does not exceed, the amount of consideration paid to Uber in connection with the Drag Sale; |
| 24.4.5 | Uber shall not be required to make out-of-pocket expenditures prior to the consummation of the Drag Sale nor shall Uber be obligated to pay for any transaction expenses incurred by Yandex for its sole benefit; |
| 24.4.6 | Uber shall not be required to waive any right or benefit to which Uber may be entitled pursuant to then-existing contractual rights to which Yandex is generally not entitled; |
| 24.4.7 | if Yandex is given an option as to the form and amount of consideration to be received, Uber will be given the same option; |
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| 24.4.8 | the consideration that is payable or otherwise transferable to Uber upon the consummation of the Drag Sale must be the same form of consideration and the same amount of consideration per share as is payable or otherwise transferable to other Shareholders; and |
| 24.4.9 | the consideration that is payable or otherwise transferable to the Other Shareholders pursuant to the Drag Sale must be non-deferred and non-contingent cash consideration (in immediately available funds) or equivalent Non-Cash Consideration payable or otherwise transferable upon completion of the relevant Transfer and Uber shall not be required to provide any security in connection with the Drag Sale. |
| 24.5 | Clauses 22.2 and 22.3 shall apply in respect of the process contemplated by this Clause 24 as if it were a Liquidity Event. |
| 24.6 | If the Drag Sale does not complete within [***] after the date of the Drag Along Notice (other than due to default by Uber under this Agreement or in respect of the Drag Sale transaction itself), the Drag Along Notice shall automatically expire. |
| 25. | DEFAULT |
| 25.1.1 | it breaches any provision of Clause 19.1 (General restriction on transfers) or Clause 19.12 (Permitted transfers) and the breach is not capable of being remedied or is not remedied within [***] of the other Shareholder sending it written notice requiring it to remedy the breach; or |
| 25.1.2 | an Insolvency Event occurs in respect of it. |
| 25.2 | Each Shareholder undertakes to notify the other Shareholder(s) and the Company if an Event of Default occurs or exists in respect of it. |
25.3If an Event of Default is committed by a Shareholder (the "Defaulting Shareholder"), each other Shareholder (each, a "Non-Defaulting Shareholder") may serve notice on the Defaulting Shareholder (a "Default Notice") stating that it considers an Event of Default to have been committed by the Defaulting Shareholder.
25.5If the Event of Default has not been remedied to the satisfaction of the Non-Defaulting Shareholder(s) (acting reasonably) by the expiry of the period set out in the Default Notice, the Non-Defaulting Shareholder(s) shall be entitled to give notice in writing to the Defaulting Shareholder (copied to the Company) at any time whilst such Event of Default subsists (the "Event of Default Remedy Notice").
25.6With effect from the giving of an Event of Default Remedy Notice, then without prejudice to the Defaulting Shareholder's obligations under this Agreement and to the other rights or remedies available to the Non-Defaulting Shareholder(s) with respect to the Defaulting Shareholder (including without limitation any right to claim for damages under Applicable Law for breach of this Agreement or, where appropriate, to seek an injunction, specific performance or other similar court order to enforce the obligations of the Defaulting Shareholder), the Defaulting Shareholder shall not, nor shall it be entitled to, exercise any of its powers or rights under this Agreement or the Articles in relation to management, or (except in the case of an Event of Default referred to in Clause 25.1.2) participation in the profits, of the Company (for so long as the Event of Default subsists and on the basis that any profits that it may not have participated in will be distributed or paid once the Event of Default has ceased to subsist). Without limiting the foregoing:
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| 25.6.1 | any requirement in this Agreement or the Articles that the Defaulting Shareholder is required to be present (in person or by a representative) at a Shareholders’ general meeting to make it quorate shall cease to apply; |
| 25.6.2 | the Defaulting Shareholder shall not be entitled to nominate for appointment any Supervisory Directors and its consent shall not be required for, nor shall it be entitled to vote against or otherwise prevent, the removal of any Supervisory Director appointed or nominated for appointment by it or the appointment of any new (or replacement) Supervisory Director; |
| 25.6.3 | the Defaulting Shareholder shall exercise all of its voting rights as may be directed by Yandex (if the Defaulting Shareholder is Uber) or by Uber (if the Defaulting Shareholder is Yandex) (the "Attorneys") and hereby appoints the Attorneys, to act as the attorney-in-fact of the Defaulting Shareholder with full power of substitution in the name and stead of the Defaulting Shareholder to execute, acknowledge, swear to and deliver such documents and instruments as may be necessary or appropriate to exercise the voting rights of the Defaulting Shareholder in such manner as the Attorneys deem appropriate at their sole discretion. The grant of power of attorney by the Defaulting Shareholder under this Clause is and shall be irrevocable (for so long as the Event of Default subsists); |
| 25.6.4 | any Supervisory Director nominated for appointment by the Defaulting Shareholder shall be removed in accordance with Clause 6.6 as if the Defaulting Shareholder had given the notice referred to in that Clause, and without prejudice to this undertaking such Supervisory Director(s) shall not: |
| (A) | be required to attend or vote at any meeting of Supervisory Directors to constitute a quorum (and any requirement in this Agreement or the Articles that Supervisory Directors nominated for appointment by such Shareholder are required to be present at a Supervisory Board meeting to make it quorate shall cease to apply); or |
| (B) | subject to Applicable Law, be entitled to receive or request any information from any Group Company. |
| 26. | COMPLIANCE BREACH |
| 26.2 | The parties shall use their respective reasonable efforts to procure that a meeting of the Supervisory Board is convened as soon as practicable after a Compliance Notice is sent by Uber pursuant to Clause 26.1. If the Supervisory Board fails, in the reasonable opinion of Uber (on the advice of external legal counsel), to decide upon and approve an appropriate method by which the Company shall investigate and resolve the matter identified in the Compliance Notice within [***] or if the Compliance Breach identified in the Compliance Notice is not remedied within [***] and to the reasonable satisfaction of Uber, Uber shall be entitled to exercise any one of its rights under Clauses 26.3, 26.4 and 26.5 to 26.8 (inclusive). |
Regulatory exit
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| of First Refusal), Clause 21 (Tag Along Rights), Clause 22 (Liquidity Event), Clause 23 (Qualified IPO) and Clause 24 (Drag Sale) shall not apply to any transfer permitted by this Clause 26.3. |
Step down
| 26.4 | Uber, in its sole discretion, shall have the right but not the obligation, for so long as it deems appropriate, to relinquish its: |
| 26.4.1 | right to nominate for appointment or to appoint any Nominee Supervisory Director(s) and Uber shall procure that any Nominee Supervisory Director(s) nominated for appointment by it shall not be entitled to vote at any Supervisory Board meeting and, for the purposes of Clause 7.7, the quorum for a Supervisory Board meeting shall not be required to include the Nominee Supervisory Director(s) nominated for appointment by Uber. Any Nominee Supervisory Directors nominated for appointment shall promptly resign or be removed by Uber; and |
| 26.4.2 | consent right under Clause 11 (Reserved Matters) in relation to the Reserved Matters. |
Step in
| 26.6 | Uber's Step-In Rights shall be to: |
| 26.6.1 | investigate and verify the facts and circumstances of the Compliance Breach; |
| 26.6.2 | identify the person or persons responsible for the Compliance Breach; |
| 26.6.3 | identify the actions or failures to act that constituted, caused or permitted the Compliance Breach; |
| 26.6.4 | identify any deficiencies in any Group Company controls or procedures that may have permitted, facilitated or resulted in the Compliance Breach; |
| 26.6.5 | take disciplinary action, up to and including termination of employment, concerning any Group Company employees responsible for the Compliance Breach; |
| 26.6.6 | exercise any contractual or other rights or remedies any Group Company may have against any contractors or other third parties responsible for the Compliance Breach; |
| 26.6.7 | instruct Group Company personnel to adopt or revise controls, or to adopt, revise or eliminate procedures, in order to prevent, detect, identify, investigate and correct unethical, illegal or otherwise improper business practices, including violations of Corruption Laws or Sanctions, or any similar laws or rules or regulations; and |
| 26.6.8 | any other action reasonably related or incidental to those actions listed in this Clause 26.6. |
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| Date or following receipt of the Step-Out Notice (as the case may be), the Shareholders shall procure that a meeting of the Supervisory Board be convened to discuss the results of the Company’s investigation and implementation of correction measures and any additional action to be taken for the prevention of any further Compliance Breach. |
| 26.8 | For the purposes of clause 26.7, the "Step-In Long Stop Date" shall mean the date which is [***] after the date on which a Step-In Notice is received by the Supervisory Board. |
Further assurances for compliance
| 26.9 | The Shareholders shall, and shall cause the Nominee Supervisory Directors appointed by them and the Group Companies to, cooperate fully with Uber and Uber's representatives in the exercise of the rights under the foregoing provisions in this Clause 26 and provide all assistance that Uber or Uber's representatives may reasonably request in connection therewith. Such cooperation and assistance shall include, but shall not be limited to procuring (to the extent lawfully possible) that the Nominee Supervisory Directors appointed by them vote, and that the Group Companies vote their shares in Subsidiaries and procure that the Subsidiaries' directors vote, in favour of any action necessary, or reasonably requested by Uber, to give effect to the rights under the foregoing provisions in this Clause 26. |
| 27. | NOTICES |
27.1Any notice (including any approval, consent or other communication) in connection with this Agreement shall be in writing in English and delivered by hand or courier (using an internationally recognised courier company) to the address specified in Clause 27.3 or to such other address as the relevant Party may from time to time specify by notice to the other Parties given in accordance with this Clause, and for the avoidance of doubt a notice shall not be deemed to be given if made only by email, but a courtesy copy of each notice shall also be sent to the email address(es) specified in Clause 27.3 or to such other email address(es) as the relevant Party may from time to time specify by notice to the other Parties given in accordance with this Clause.
27.2A notice shall be effective upon receipt and shall be deemed to have been received at the time of delivery, if delivered by hand or courier provided that, in either case, where delivery occurs after 5.00pm, notice shall be deemed to have been received at 9.00am on the next following Business Day.
In relation to Yandex | In relation to Uber |
Address: Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands | Address: 0000 Xxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxxxxxxx, XX 00000 |
[***] | [***] |
[***] | [***] |
With a copy to: Xxxxxxx Xxxxxxx, COO Xxxxxxx Xxxxxxx | With a copy to: Xxxxx Xxxxx |
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Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx | |
In relation to the Company | In relation to the Foundation |
Address: Xxxxxxxx Xxxxxxxxx 000, 0000 XX Schiphol, the Netherlands | Address: Xxxxxxxx Xxxxxxxxx 000, 0000 XX Xxxxxxxx, xxx Xxxxxxxxxxx |
[***] | [***] |
[***] | [***] |
With a copy to each of: Xxxxxxx Xxxxxxx | With a copy to: Xxxxxxx Xxxxxxx |
| 27.4 | Should a Party fail to notify another Party of any change to its address in accordance with Clause 27.1, then any notice served under this Clause shall be validly served by that second Party if served to the address listed in Clause 27.3. |
| 28. | TERM |
| 28.1 | This Agreement shall, subject always to the Surviving Provisions in Clause 28.3, continue in force and effect following Completion until the earliest to occur of the following events: |
| 28.1.1 | all of the Shareholders agree in writing to terminate it; |
| 28.1.2 | a Qualified IPO becoming effective; and |
| 28.1.3 | all of the Shares held by the Shareholders becoming held by one Shareholder (whether or not together with its Permitted Affiliates). |
| 28.2 | Without limiting Clause 28.1 and without prejudice to the continuation of this Agreement with respect to all other Shareholders who are party (or who, in accordance with Clause 19.6 have adhered) to it, this Agreement shall terminate with respect to a Shareholder if that Shareholder ceases to hold Shares in the Company (subject to Clause 19.5) |
| 29. | announcements and confidentiality |
Announcements
| 29.1 | No Shareholder nor the Company shall (and each Shareholder shall procure than none of its Affiliates or subsidiary undertakings or parent undertakings shall): |
| 29.1.1 | make or send; or |
| 29.1.2 | permit another person to make or send on its behalf, |
a public announcement or circular regarding the existence or the subject matter of a Transaction Agreement, unless it has first obtained each other Party's written permission (that permission not to be unreasonably withheld or delayed).
Permitted announcements
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| 29.2 | Clause 29.1 does not apply to an announcement or circular: |
| 29.2.1 | which is required by Applicable Law, a court of competent jurisdiction or a competent judicial, governmental, supervisory or regulatory body; or |
| 29.2.2 | 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
| 29.3 | A Party that is required to make or send an announcement or circular in the circumstances contemplated by Clauses 29.2.1 and 29.2.1, must, before making or sending the announcement or circular, consult with each other Party and take into account each 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. |
Confidentiality
| 29.5 | Subject further to Clause 29.6, Clause 29.4 does not apply to a disclosure or use of Confidential Information in the following circumstances: |
| 29.5.1 | the disclosure or use is required by Applicable Law or required or requested by a Governmental Authority; |
| 29.5.2 | 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; |
| 29.5.3 | 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 29.4 as if it were a party to this Agreement; |
| 29.5.4 | to the extent that the relevant Confidential Information is in the public domain otherwise than by breach of this Agreement by any Party; |
| 29.5.5 | 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; |
| 29.5.6 | the disclosure or use is required for the purpose of legal proceedings arising out of a Transaction Agreement or the disclosure is required to be made to a Tax Authority in connection with the Tax affairs of a disclosing Shareholder or any of its Affiliates; |
| 29.5.7 | 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 29.4 as if it were a party to this Agreement; or |
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| for the benefit of the Company, pursuant to which the intended recipient shall be required to observe the same restrictions on the use of the relevant information as are contained in Clause 29.4 and subject to the same exceptions as are contained in this Clause 29.5, and in such case: |
| (A) | the Company shall cooperate in providing such information to the prospective purchaser as the prospective purchaser shall reasonably request; and |
| (B) | the Company shall assist in the marketing of the Shares, including in the preparation and delivery of presentations on the Group to be used during the course of presentations to investors in connection with the potential sale, including in the context of early-look, pilot fishing, pre-marketing, roadshow and other presentations. |
| 29.7 | For the avoidance of doubt, and notwithstanding any provision in this Agreement, in the event of an Uber IPO, Uber (or any of its Affiliates) shall be entitled to make such disclosure as would be required or customary for an initial public offering of that nature in the relevant jurisdiction. |
| 30. | MISCELLANEOUS |
Warranties
| 30.1 | Each Party warrants to each other Party that each of the Party Warranties is true, accurate and not misleading in respect of itself at the date of this Agreement. |
Assignment
Third party rights
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Entire agreement
| 30.6 | Each Party confirms that: |
| 30.6.1 | 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 Transaction Agreements or the agreed form documents or any document referred to in any of them; and |
| 30.6.2 | 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 Transaction Agreements or the agreed form documents or any document referred to in any of them are those pursuant to this Agreement or such Transaction 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
| 30.7 | 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. |
No xxxxxx
| 30.9 | Without limiting Clause 30.8, in case any of the obligations undertaken by the Company hereunder is not enforceable against the Company under Applicable Law, the Shareholders undertake to take such action in their capacity as shareholders of the Company to ensure that the Company, in fact, acts in accordance with this Agreement. |
No set off, deduction or counterclaim
Tax
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| 30.12 | Payments made in connection with this Agreement shall so far as possible be treated by the Parties as an adjustment to any consideration payable pursuant to this Agreement. |
Currency conversion
| 30.14 | For the purposes of the thresholds in Schedule 2 (Reserved Matters), the "relevant date" for the purposes of Clause 30.13 shall be the date on which the relevant matter is approved by the Supervisory Board or the Shareholders (as the case may be). |
Further assurance
| 30.16 | Without limiting Clause 30.15, but subject in all respect to Clauses 11.8 to 11.10, to the extent necessary to give effect to the Drive Contribution Agreement, including completion thereunder, the Shareholders shall not exercise, and shall waive, any pre-emption rights to the transfer or issuance of Shares contained in this Agreement or the Articles, and shall execute all such documents and take all such steps (including giving consents, approvals and passing resolutions) as are reasonably required, in each case in a timely fashion, including to authorise and instruct the Management Board and the Supervisory Board to take such steps including passing such resolutions as are required by it, to give effect to the Drive Contribution Agreement. |
Waiver
Variation
Counterparts
| 30.19 | 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 |
59
| 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 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. |
Costs
Tax Residency
Language
Legal advice
| 31. | GOVERNING LAW AND DISPUTE RESOLUTION |
| 31.1 | This Agreement and any non-contractual obligations arising out of or in connection with this Agreement are governed by English law. |
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| referred to and finally settled by arbitration in accordance with the LCIA Arbitration Rules (the "Rules") as at present in force and as modified by this Clause, which Rules shall be deemed incorporated into this Clause and capitalised terms used in this Clause which are not otherwise defined in this Agreement have the meaning given to them in the Rules. This Clause 31.2 and any non-contractual provisions arising out of or in connection with this Clause 31.2 are governed by English law. |
| 31.2.2 | 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. |
| 31.2.4 | 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. |
| 31.2.6 | Each Party consents to being joined to any arbitration commenced under this Agreement or a Related Agreement on the application of any other Party if the |
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| Arbitral Tribunal so allows, and subject to and in accordance with the Rules. Before the constitution of the Arbitral Tribunal, any party to an arbitration commenced pursuant to this Clause 31.2 may effect joinder by serving notice on any party to this Agreement or any Related Agreement whom it seeks to join to the arbitration proceedings, provided that such notice is also sent to all other parties to the Dispute and the LCIA Court within [***] of service of the Request for Arbitration. The joined party will become a claimant or respondent party (as appropriate) to the arbitration proceedings and participate in the arbitrator appointment process in Clause 31.2.1. |
| 31.2.8 | 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 31.2.6 to 31.2.7, to the validity and/or enforcement of any arbitral award. |
| 31.2.9 | Each Party agrees that any arbitration under this Clause 31.2 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. |
| 31.2.10 | The law of this arbitration agreement, including its validity and scope, shall be English law. |
| 31.2.11 | This agreement to arbitrate shall be binding upon the Parties, their successors and permitted assigns. |
| 32. | Process Agent |
| 32.1 | Uber irrevocably appoints Oakwood Corporate Services Limited as its agent under this Agreement for service of process and agrees that 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 31.2 (Dispute Resolution) may be served on it by being delivered to Oakwood Corporate Services Limited, 0xx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxxxxx, |
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| Xxxxxxxx XX00 0XX. 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. |
| 32.2 | Each of Yandex and the Company irrevocably appoints Law Debenture Corporate Services Limited as their agent under this Agreement for service of process and agrees that 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 31.2 (Dispute Resolution) may be served on it by being delivered to 0xx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx. If such person is not or ceases to be effectively appointed to accept service of process on behalf of Yandex or the Company, then Yandex or the Company shall immediately appoint a further person in England to accept service of process on its behalf. |
| 32.3 | Each of the Shareholders and the Company agrees 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. |
| 32.4 | Nothing in this Clause 32 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) and delivered as a DEED on the date specified at the beginning of this Agreement.
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Schedule 1
Schedule 2
Schedule 3
Schedule 5
Schedule 6
Schedule 7
Schedule 8
Schedule 9
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EXECUTED as a DEED by | ) | |
) | | |
a company incorporated in | ) | /s/ Xxxxxx Xxxxxxxxx de Cuba |
the Netherlands, acting by | ) | Authorised Person |
| ) | |
who, in accordance with the laws of that | ) | |
territory, is acting under the authority of | ) | |
the company in the presence of: | ) | |
| | |
| | |
Signature of witness | | /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxxx |
| | |
Name of witness | | |
(in BLOCK CAPITALS) | | XXXXXXX XXXXXXXXXXX XXXXXXX |
| | |
Address of witness | | Schiphol Boulevard 165 |
| | 1118 BG Schiphol |
| | the Netherlands |
| | ……………………………..…………………… |
| | |
Occupation of witness | | Senior Legal Counsel |
EXECUTED as a DEED by UBER NL HOLDINGS 2 B.V., acting in its own capacity and in its capacity as general partner of UBER INTERNATIONAL C.V., a Dutch-law governed limited partnership in the presence of: | ) ) ) ) | Name: Nate Anderson Title: Managing Director |
| | |
Signature of witness | | /s/ Xxxxx Xxxx |
| | |
Name of witness | | |
(in BLOCK CAPITALS) | | XXXXX XXXX |
| | |
Address of witness | | Haagbeuk 3g |
| | 1853 AD Heiloo |
| | Netherlands |
| | ……………………………..…………………… |
| | |
Occupation of witness | | Corporate Paralegal |
EXECUTED as a DEED by | ) | |
STICHTING MLU EQUITY INCENTIVE | ) | |
a company incorporated in | ) | /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxxx |
the Netherlands, acting by | ) | Authorised Person |
| ) | |
who, in accordance with the laws of that | ) | |
territory, is acting under the authority of | ) | |
the company in the presence of: | ) | |
| | |
| | |
Signature of witness | | /s/ Xxxxxx Xxxxxxxxx de Cuba |
| | |
Name of witness | | |
(in BLOCK CAPITALS) | | XXXXXX XXXXXXXXX DE CUBA |
| | |
Address of witness | | Schiphol Boulevard 165 |
| | 1118 BG Schiphol |
| | the Netherlands |
| | ……………………………..…………………… |
| | |
Occupation of witness | | Senior Legal Counsel |
EXECUTED as a DEED by | ) | |
MLU B.V. | ) | |
a company incorporated in | ) | /s/ Xxxxxxx Xxxxxxxxxxx Xxxxxxx |
the Netherlands, acting by | ) | Authorised Person |
| ) | |
who, in accordance with the laws of that | ) | |
territory, is acting under the authority of | ) | |
the company in the presence of: | ) | |
| | |
Signature of witness | | /s/ Xxxxxx Xxxxxxxxx de Cuba |
| | |
Name of witness | | |
(in BLOCK CAPITALS) | | XXXXXX XXXXXXXXX DE CUBA |
| | |
Address of witness | | Schiphol Boulevard 165 |
| | 1118 BG Schiphol |
| | the Netherlands |
| | ……………………………..…………………… |
| | |
Occupation of witness | | Senior Legal Counsel |
