XXXXXXXX XXXXXXXX CHANCE LLP
CHANCE CONFORMED COPY
BMB MUNAI, INC.
and
XXX XXXX XX XXX XXXX
X.X.x00,000,000 5.0 per cent. Convertible Notes due 2012
PAYING AND CONVERSION AGENCY AGREEMENT
CONTENTS
Clause Page
1. Interpretation.......................................................1
2. Appointment of the Agents............................................3
3. The Notes............................................................4
4. Transfers of Notes...................................................4
5. Replacement Note Certificates........................................5
6. Payments to the Principal Paying and Conversion Agent................5
7. Payments to Noteholders..............................................7
8. Conversion of the Notes..............................................9
9. Miscellaneous Duties of the Agents..................................11
10. Fees and Expenses...................................................14
11. Terms of Appointment................................................15
12. Changes in Agents...................................................16
13. Notices.............................................................19
14. Law and Jurisdiction................................................20
15. Modification........................................................21
16. Counterparts........................................................21
17. Rights of Third Parties.............................................21
SCHEDULE 1 Regulations concerning transfers and registration of Notes.......22
SCHEDULE 2...................................................................25
Part A Form of Subscription Letter for Regulation S Investor............25
Part B Transferee's Letter..............................................30
SCHEDULE 3 Form of Conversion Notice........................................34
SCHEDULE 4 Form of Put Option Notice........................................37
SCHEDULE 5 Specified Offices of the Agents..................................39
THIS AGREEMENT is made on 13 July 2007
BETWEEN
(1) BMB MUNAI, INC. (the "Issuer");
(2) THE BANK OF NEW YORK as registrar (the "Registrar");
(3) THE BANK OF NEW YORK as principal paying and conversion agent (the
"Principal Paying and Conversion Agent"); and
(4) THE BANK OF NEW YORK as transfer agent (the "Transfer Agent"); and
(5) BNY CORPORATE TRUSTEE SERVICES LIMITED as trustee (the "Trustee").
WHEREAS
(A) The Issuer has authorised the creation and issue of U.S.$60,000,000 in
aggregate principal amount of 5.0 per cent. Unsecured Convertible Notes
due 2012 (the "Notes") convertible into common shares of U.S.$ 0.001 par
value in the share capital of the Issuer (the "Shares").
(B) The Notes are being offered outside the United States in reliance on
Regulation ("Regulation S") under the U.S. Securities Act of 1933, as
amended (the "Securities Act").
(C) The Notes will be constituted by, be subject to, and have the benefit
of, a trust deed dated 13 July 2007 (as amended and/or supplemented from
time to time, the "Trust Deed") and made between the Issuer and the
Trustee.
(D) The Notes will be in registered form and in denominations of
U.S.$100,000. The Notes will be represented by note certificates ("Note
Certificates") in the form attached in the Schedules to the Trust Deed.
(E) The Issuer, the Registrar, the Paying and Conversion Agents, the
Transfer Agents and the Trustee wish to record certain arrangements
which they have made in relation to the Notes.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement the following expressions have the following meanings:
"Agents" means the Principal Paying and Conversion Agent, the Registrar,
the Transfer Agents and the Paying and Conversion Agents and "Agent"
means any one of the Agents;
"Bookrunner" means Bayerische Hypo-und Vereinsbank AG;
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"Conditions" means the Terms and Conditions of the Notes (as scheduled
to the Trust Deed and as modified from time to time in accordance with
their terms), and any reference to a numbered "Condition" is to the
correspondingly numbered provision thereof;
"Conversion Notice" means a notice of conversion substantially in the
form set out in Schedule 3 (Form of Conversion Notice) or such other
form as may from time to time be agreed between the Issuer, the
Principal Paying and Conversion Agent and the Trustee and distributed to
each Paying and Conversion Agent;
"Local Banking Day" means a day (other than a Saturday or a Sunday) on
which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in the city in which the
Principal Paying and Conversion Agent has its Specified Office;
"Local Time" means the time in the city in which the Principal Paying
and Conversion Agent has its Specified Office;
"Noteholders" means the holders of the Notes for the time being;
"Paying and Conversion Agents" means the Principal Paying and Conversion
Agent and any other paying and conversion agents appointed from time to
time in accordance with Clause 12 (Changes in Agents);
"Principal Paying and Conversion Agent", "Paying and Conversion Agents",
"Registrar" and "Transfer Agent" include any successors thereto
appointed from time to time in accordance with Clause 12 (Changes in
Agents) and "Paying and Conversion Agent" and "Transfer Agent" means any
one of the Paying and Conversion Agents and the Transfer Agents,
respectively;
"Put Option Notice" means a notice of exercise relating to the put
options contained in Condition 8(b) (Redemption and Purchase -
Redemption at the option of Noteholders), substantially in the form set
out in Schedule 4 (Form of Put Option Notice) or such other form as may
from time to time be agreed between the Issuer, the Principal Paying and
Conversion Agent and the Trustee and distributed to each Paying and
Conversion Agent;
"Regulations" means the regulations concerning the transfer of Notes as
the same may from time to time be promulgated by the Issuer and approved
by the Registrar and the Trustee (the initial such regulations being set
out in Schedule 1) (Regulations concerning transfers and registration of
Notes);
"Replacement Agent" means the Principal Paying and Conversion Agent;
"Specified Office" means, in relation to any Agent:
(a) the office specified against its name in Schedule 5 (Specified
Offices of the Agents); or
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(b) such other office as such Agent may specify in accordance with
Clause 12.8 (Changes in Specified Offices);
"Transfer Agents" means any transfer agents appointed from time to time
in accordance with Clause 12 (Changes in Agents);
"Trustee" includes all persons for the time being appointed trustee or
trustees under the Trust Deed; and
"U.S.$" and "U.S. dollars" denote the lawful currency for the time being
of the United States of America.
1.2 Clauses and Schedules
Any reference in this Agreement to a Clause or a sub-clause or a
Schedule is, unless otherwise stated, to a clause or a sub-clause hereof
or a schedule hereto.
1.3 Principal and interest
In this Agreement, any reference to principal or interest includes any
additional amounts payable in relation thereto under the Conditions.
1.4 Terms defined in the Conditions and the Trust Deed
Terms and expressions used but not defined herein have the respective
meanings given to them in the Conditions and the Trust Deed.
1.5 Legislation
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted.
1.6 Headings
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
2. APPOINTMENT OF THE AGENTS
2.1 Appointment
The Issuer and, for the purposes of Clause 7.7 (Agents to act for
Trustee) only, the Trustee appoints each Agent as its agent in relation
to the Notes for the purposes specified in this Agreement and in the
Conditions.
2.2 Acceptance of appointment
Each Agent accepts its appointment as agent of the Issuer and, in
respect of Clause 7.7 (Agents to act for Trustee), the Trustee in
relation to the Notes and agrees to comply with the provisions of this
Agreement and to comply with the obligations expressed to be undertaken
by it in the Conditions.
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3. THE NOTES
3.1 Availability of Note Certificates
The Issuer shall promptly arrange for a stock of Note Certificates
(unauthenticated and with the names of the registered Holders left blank
but executed on behalf of the Issuer and otherwise complete) to be made
available to the Registrar. The Issuer shall also arrange for such Note
Certificates as are required to enable the Registrar and the Replacement
Agent to perform their respective obligations under Clause 4 (Transfers
of Notes) and Clause 5 (Replacement Note Certificates) to be made
available to or the order of the Registrar and the Replacement Agent
from time to time.
3.2 Authority to Authenticate
Each of the Registrar and the Replacement Agent is authorised by the
Issuer to authenticate the Note Certificates by the signature of any of
its officers or any other person duly authorised for the purpose by the
Registrar or (as the case may be) the Replacement Agent.
3.3 Duties of the Registrar and the Replacement Agent
The Registrar and the Replacement Agent shall hold in safe keeping all
unauthenticated Note Certificates delivered to it in accordance with
Clause 3.2 (Availability of Note Certificates) and shall ensure that
they are authenticated and delivered only in accordance with the terms
hereof, of the Note Certificate (if applicable) and of the Conditions.
4. TRANSFERS OF NOTES
4.1 Maintenance of the Register
The Registrar shall maintain in relation to the Notes a register (the
"Register"), which shall be kept at its Specified Office in accordance
with the Conditions and be made available by the Registrar to the
Issuer, the Trustee and the other Agents for inspection and for the
taking of copies or extracts therefrom at all reasonable times. The
Register shall show the aggregate principal amount, serial numbers and
dates of issue of Note Certificates, the names and addresses of the
initial Holders thereof and the dates of all transfers to, and the names
and addresses of, all subsequent Holders thereof, all cancellations of
Note Certificates and all replacements of Note Certificates.
The Register shall at all times be maintained outside of the United
Kingdom.
4.2 Registration of transfers in the register
The Registrar shall receive requests for the transfer of Notes in
accordance with the Conditions and the Regulations and shall make the
necessary entries in the Register.
4.3 Transfer Agents to receive requests for transfers of Notes
Each of the Transfer Agents shall receive requests for the transfer of
Notes in accordance with the Conditions and the Regulations and assist,
if required, in the issue of new Note Certificates to give effect to
such transfers and, in particular, upon any such request being duly
made, shall promptly notify the Registrar of:
4.3.1 the aggregate principal amount of the Notes to be transferred;
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4.3.2 the name(s) and addresses to be entered on the Register of the
Holder(s) of the new Note Certificate(s) to be issued in order
to give effect to such transfer; and
4.3.3 the place and manner of delivery of the new Note Certificate(s)
to be delivered in respect of such transfer
and shall forward the Note Certificate(s) relating to the Notes to be
transferred (with the relevant form(s) of transfer duly completed) to
the Registrar with such notification.
5. REPLACEMENT NOTE CERTIFICATES
5.1 Delivery of replacements
Subject to receipt of replacement Note Certificates, the Replacement
Agent shall, upon and in accordance with the instructions of the Issuer
(which instructions may, without limitation, include terms as to the
payment of expenses and as to evidence, security and indemnity),
complete, authenticate and deliver a Note Certificate which the Issuer
has determined to issue as a replacement for any Note Certificate which
has been mutilated or defaced or which has been or is alleged to have
been destroyed, stolen or lost; provided, however, that a Replacement
Agent shall not deliver any Note Certificate as a replacement for any
Note Certificate which has been mutilated or defaced otherwise than
against surrender of the same and shall not issue any replacement Note
Certificate until the applicant has furnished the Replacement Agent with
such evidence and indemnity as the Issuer and/or the Replacement Agent
may reasonably require and has paid such costs and expenses as may be
incurred in connection with such replacement.
5.2 Replacements to be numbered
Each replacement Note Certificate delivered hereunder shall bear a
unique serial number.
5.3 Cancellation and destruction
Each Replacement Agent shall cancel and destroy each mutilated or
defaced Note Certificate surrendered to it in respect of which a
replacement has been delivered.
5.4 Notification
Each Replacement Agent shall notify the Issuer, the other Agents and the
Trustee of the delivery by it of any Note Certificate, specifying the
serial number thereof and the serial number (if any and if known) of the
Note Certificate which it replaces and confirming (if such is the case)
that the Note Certificate which it replaces has been cancelled and
destroyed in accordance with Clause 5.3 (Cancellation and destruction).
6. PAYMENTS TO THE PRINCIPAL PAYING AND CONVERSION AGENT
6.1 Issuer to pay Principal Paying and Conversion Agent
In order to provide for the payment of principal and interest and any
other amounts in respect of the Notes as the same becomes due and
payable, the Issuer shall pay to the Principal Paying and Conversion
Agent, on or before the date which is one Local Banking Day before the
day on which such payment becomes due, an amount equal to the relevant
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amount falling due in respect of the Notes on such date. If the Issuer
requires the Principal Paying and Conversion Agent to make payments of
any cash payment on its behalf, the Issuer shall no later than two Local
Banking Days prior to the date on which such cash payment becomes due
and payable notify the Principal Paying and Conversion Agent of the
amount of such cash payment.
6.2 Manner and time of payment
Each amount payable under Clause 6.1 (Issuer to pay Principal Paying and
Conversion Agent) shall be paid unconditionally by credit transfer in
U.S. dollars and in same day, freely transferable, cleared funds not
later than 10.00 a.m. (Local Time) on the relevant day (or by such
earlier time as may be determined by the Principal Paying and Conversion
Agent in its absolute discretion) to such account with such bank in New
York City as the Principal Paying and Conversion Agent may from time to
time by notice to the Issuer (with a copy to the Trustee) specify for
such purpose. The Issuer shall, before 10.00 a.m. (Local Time) on the
second Local Banking Day before the due date of each payment by it under
Clause 6.1 (Issuer to pay Principal Paying and Conversion Agent),
procure that the bank effecting payment for it confirms by tested telex
or authenticated SWIFT message to the Principal Paying and Conversion
Agent the payment instructions relating to such payment. If the
Principal Paying and Conversion Agent determines in its absolute
discretion that payment in accordance with this Clause 6.2 is required
to be made earlier, it will provide the Issuer with no less than 21 days
prior notice in writing of such requirement.
6.3 Exclusion of liens and interest
The Principal Paying and Conversion Agent shall be entitled to deal with
each amount paid to it under this Clause 6 (Payments to the Principal
Paying and Conversion Agent) in the same manner as other amounts paid to
it as a banker by its customers; provided, however, that:
6.3.1 it shall not exercise against the Issuer any lien, right of
set-off or similar claim in respect thereof;
6.3.2 it shall not be liable to any person for interest thereon; and
6.3.3 money held by it need not be segregated except as required by
law.
6.4 Application by Principal Paying and Conversion Agent
The Principal Paying and Conversion Agent shall apply each amount paid
to it hereunder in accordance with Clause 7 (Payments to Noteholders)
and shall not be obliged to repay any such amount unless the claim for
the relevant payment becomes void under Condition 39 (Prescription), in
which event it shall refund at the written request of the Issuer such
portion of such amount as relates to such payment by paying the same by
credit transfer in U.S. dollars to such account with such bank in New
York City as the Issuer has by notice to the Principal Paying and
Conversion Agent specified for the purpose.
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6.5 Failure to receive payment instructions
If the Principal Paying and Conversion Agent has not by 10 a.m. (Local
Time) on the second Local Banking Day before the due date of any payment
to it under Clause 6.1 (Issuer to pay Principal Paying and Conversion
Agent), received the relevant payment instructions referred to in Clause
6.2 (Manner and time of payment), it shall forthwith notify the Issuer
and the other Paying and Conversion Agents. If the Principal Paying and
Conversion Agent subsequently receives such payment instructions, it
shall forthwith notify the Issuer and the other Paying and Conversion
Agents.
7. PAYMENTS TO NOTEHOLDERS
7.1 Payments by Paying and Conversion Agents
Each Paying and Conversion Agent acting through its Specified Office
shall make payments of principal and interest and any other amounts in
respect of the Notes in accordance with the Conditions; provided,
however, that:
7.1.1 if any Note Certificate is presented or surrendered for payment
to any Paying and Conversion Agent and such Paying and
Conversion Agent has delivered a replacement therefor or has
been notified that the same has been replaced, such Paying and
Conversion Agent shall forthwith notify, upon request, the
Issuer and (if such Paying and Conversion Agent is not the
Principal Paying and Conversion Agent) the Principal Paying and
Conversion Agent of such presentation or surrender and shall not
make payment against the same until it is so instructed by the
Issuer and the Principal Paying and Conversion Agent has
received the full amount to be so paid;
7.1.2 a Paying and Conversion Agent shall not be obliged (but shall be
entitled) to make payments of principal or interest in respect
of the Notes, if:
(a) in the case of the Principal Paying and Conversion
Agent, it has not received the full amount of any
payment due to it under Clause 6.1 (Issuer to pay
Principal Paying and Conversion Agent) or is not
satisfied that such payment will be made; or
(b) in the case of any other Paying and Conversion Agent, it
has been notified by the Principal Paying and Conversion
Agent that payment has not been received, unless it is
subsequently notified that such payment has been
received;
7.1.3 each Paying and Conversion Agent shall cancel each Note
Certificate against presentation and surrender of which it has
made full payment and shall deliver each Note Certificate so
cancelled by it to, or to the order of, the Registrar; and
7.1.4 notwithstanding any other provision of this Agreement, each
Paying and Conversion Agent shall be entitled to make a
deduction or withholding from any payment which it makes under
this Agreement for or on account of any present or future taxes,
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duties or charges if and to the extent so required by applicable
law, in which event such Paying and Conversion Agent shall make
such payment after such withholding or deduction has been made
and shall account to the relevant authorities for the amount so
withheld or deducted.
7.2 Exclusion of liens and commissions
No Paying and Conversion Agent shall exercise any lien, right of set-off
or similar claim against any person to whom it makes any payment under
Clause 7.1 (Payments by Paying and Conversion Agents) in respect
thereof, nor shall any commission or expense be charged by it to any
such person in respect thereof.
7.3 Reimbursement by the Principal Paying and Conversion Agent
If a Paying and Conversion Agent other than the Principal Paying and
Conversion Agent makes any payment in accordance with Clause 7.1
(Payments by Paying and Conversion Agents):
7.3.1 it shall notify the Principal Paying Agent of the amount so paid
by it and the serial number and principal amount of each Note
Certificate in relation to which payment of principal or
interest was made; and
7.3.2 subject to and to the extent of compliance by the Issuer with
Clause 6.1 (Issuer to pay Principal Paying and Conversion Agent)
(whether or not at the due time), the Principal Paying and
Conversion Agent shall pay to such Paying and Conversion Agent
out of the funds received by it under Clause 6.1 (Issuer to pay
Principal Paying and Conversion Agent), by credit transfer in
U.S. dollars to such account with such bank in New York City as
such Paying and Conversion Agent has by notice to the Principal
Paying and Conversion Agent specified for the purpose, an amount
equal to the amount so paid by such Paying and Conversion Agent.
7.4 Appropriation by Principal Paying and Conversion Agent
If the Principal Paying and Conversion Agent makes any payment in
accordance with Clause 7.1 (Payments by Paying and Conversion Agents),
it shall be entitled to appropriate for its own account out of the funds
received by it under Clause 6.1 (Issuer to pay Principal Paying and
Conversion Agent) an amount equal to the amount so paid by it.
7.5 Reimbursement by Issuer
Subject to sub-clauses 7.1.1 and 7.1.2 (Payments by Paying and
Conversion Agents), if a Paying and Conversion Agent makes a payment in
respect of Notes on or after the due date for such payment under the
Conditions at a time at which the Principal Paying and Conversion Agent
has not received the full amount of the relevant payment due to it under
Clause 6.1 (Issuer to pay Principal Paying and Conversion Agent) and the
Principal Paying and Conversion Agent is not able out of funds received
by it under Clause 6.1 (Issuer to pay Principal Paying and Conversion
Agent) to reimburse such Paying and Conversion Agent therefor (whether
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by payment under Clause 7.3 (Reimbursement by the Principal Paying and
Conversion Agent) or appropriation under Clause 7.4 (Appropriation by
the Principal Paying and Conversion Agent), the Issuer shall from time
to time on demand pay to the Principal Paying and Conversion Agent for
account of such Paying and Conversion Agent the amount so paid by such
Paying and Conversion Agent and not so reimbursed and an amount
sufficient to indemnify such Paying and Conversion Agent against any
cost, loss or expense which it incurs as a result of making such payment
and not receiving reimbursement of such amount.
7.6 Partial payments
If at any time and for any reason a Paying and Conversion Agent makes a
partial payment in respect of any Note Certificate presented for payment
to it, such Paying and Conversion Agent shall enface thereon a statement
indicating the amount and the date of such payment. In addition, if, on
any due date for payment, less than the full amount of any principal or
interest is paid in respect of the Notes, the Registrar will note on the
Register a memorandum of the amount and date of any payment then made
and, if any Note Certificate is presented for payment in accordance with
the Conditions and no payment is then made, the date of presentation of
the Note Certificate.
7.7 Agents to act for Trustee
If any Event of Default or Potential Event of Default occurs, the Agents
shall, if so required by notice given by the Trustee to the Issuer and
the Agents (or such of them as are specified by the Trustee):
7.7.1 act thereafter, until otherwise instructed by the Trustee, as
the agents of the Trustee in relation to payments to be made by
or on behalf of the Trustee under the Trust Deed (save that the
Trustee's liability for the indemnification of any of the Agents
shall be limited to the amounts for the time being held by the
Trustee on the trusts of the Trust Deed and available to the
Trustee for such purpose) and thereafter to hold all Note
Certificates and all sums, documents and records held by them in
respect of the Notes on behalf of the Trustee; and/or
7.7.2 deliver up all Note Certificates and all sums, documents and
records held by them in respect of the Notes to the Trustee or
as the Trustee shall direct in such notice; provided, however,
that such notice shall not be deemed to apply to any document or
record which any Agent is obliged not to release by any law or
regulation.
8. CONVERSION OF THE NOTES
8.1 Conversion Notices
Promptly upon request from time to time, the Issuer will provide the
Paying and Conversion Agents with copies of the forms of Conversion
Notice for the time being current.
8.2 Exercise of Conversion Rights in respect of Notes
Subject as provided herein and in the Conditions, Noteholders may
exercise Conversion Rights in respect of the whole of the principal
amount of a Note during the relevant Conversion Period by delivering
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such Note to the Specified Office of any Paying and Conversion Agent
during its usual business hours, together with a duly completed and
signed Conversion Notice (the form of which shall be furnished upon
request to any Noteholder by any Paying and Conversion Agent) and such
Paying and Conversion Agent shall:
8.2.1 accept delivery on behalf of the Issuer of such Note Certificate
and such duly completed and signed Conversion Notice; and
8.2.2 require, as a further condition precedent to an exercise of
Conversion Rights by or on behalf of a Noteholder (i) compliance
by the Noteholder with any applicable fiscal or other laws or
regulations as provided in the Conditions, and (ii) that such
Noteholder pays, to the extent required by, and in accordance
with Condition 13(b) (Procedure for Conversion - Conversion
Expenses) any Conversion Expenses.
8.3 Notification by Paying and Conversion Agents
Upon the conditions referred to in Clause 8.2 (Exercise of Conversion
Rights in respect of Notes) being fulfilled, the relevant Paying and
Conversion Agent shall:
8.3.1 hold the relevant Conversion Notice together with any relevant
Note(s) and any moneys paid in accordance with Condition 13(b)
(Procedure for Conversion - Conversion Expenses) as the agent of
the Issuer;
8.3.2 endorse the relevant Conversion Notice with the information
specified in the Conversion Notice as to be completed by the
relevant Paying and Conversion Agent;
8.3.3 notify the Issuer by facsimile transmission of the following:
(a) the serial numbers and denominations of all the Notes
deposited on the same occasion by the same Noteholder
and the name and address of such Noteholder;
(b) the Conversion Date in respect of such exchange;
(c) the number of Shares to be issued and the Conversion
Price in respect of such conversion;
(d) the amount of any cash payment equal to the fraction of
a Share that would fall to be delivered on conversion;
(e) the name(s) and address(es) of the persons to whom the
Shares are to be delivered showing against each such
name the number of Shares which are to be delivered to
that person and the account(s) to which the Shares are
to be delivered, or the name(s) and account(s) of the
person(s) to whom the cash payments in respect of the
exercise of the Conversion Rights are to be paid
pursuant to the Conditions, as the case may be, in
accordance with the Conversion Notice; and
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(f) the principal amount of Notes outstanding following
exercise of the relevant Conversion Rights; and
8.3.4 cancel promptly after the relevant Conversion date each Note
delivered with the Conversion Notice and deliver each Note
Certificate so cancelled by it to, or to the order of, the
Registrar; and in the case of a Paying and Conversion Agent
other than the Principal Paying and Conversion Agent, such
Paying and Conversion Agent shall deliver each Note Certificate
so cancelled by it to, or to the order of, the Registrar.
8.4 Notification of Adjustment to Conversion Price
The Issuer shall, whenever there is an adjustment to the Conversion
Price pursuant to the Conditions, as soon as reasonably practicable
following such adjustment notify the Principal Paying and Conversion
Agent and the Trustee of both the previous and the new Conversion Price
(with a brief statement of the facts requiring such adjustment) and the
date as from which the new Conversion Price has become or will become
effective.
8.5 Identification Codes
Each Conversion Notice and each facsimile transmission sent in respect
of a Conversion Notice pursuant to the provisions of this Clause 8
(Conversion of the Notes) by any Paying and Conversion Agent shall
indicate the identification code designated below for that Paying and
Conversion Agent, and shall bear for identification the lowest number
previously unused by that Paying and Conversion Agent in the sequence of
whole numerals starting from one and continuing in uninterrupted
sequence upwards. All confirmatory or subsequent communications
(regardless of the identity of the sender or the recipient thereof) with
regard to such Conversion Notice shall bear the same identifying serial
number as well as the identification code of the relevant Paying and
Conversion Agent.
The identification code of the Paying and Conversion Agents shall be as
follows:
Name Of Paying And Conversion Agent Identification Code
The Bank of New York BNYO1
9. MISCELLANEOUS DUTIES OF THE AGENTS
9.1 Cancellation
The Issuer may from time to time deliver to, or to the order of, the
Registrar, Note Certificates of which it or any of its Subsidiaries is
the Holder for cancellation, whereupon the Registrar shall cancel the
same and shall make the corresponding entries in the Register.
9.2 Notes in issue
As soon as practicable (and in any event within three months) after each
date on which Notes fall due for redemption, the Registrar shall notify
the Issuer and the Trustee of the serial numbers and principal amount of
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any Note Certificates against surrender of which payment has been made
and of the serial numbers and principal amount of any Note Certificates
(and the names and addresses of the Holders thereof) which have not yet
been surrendered for payment.
9.3 Forwarding of communications
Each Agent shall promptly forward to the Issuer a copy of any notice or
communication addressed to the Issuer by any Noteholder which is
received by such Agent.
9.4 Maintenance of records
Each of the Agents shall maintain records of all documents received by
it in connection with its duties hereunder and shall make such records
available for inspection at all reasonable times by the Issuer, the
Trustee and the other Agents and, in particular the Registrar shall (a)
maintain a record of all Note Certificates delivered hereunder and of
their redemption, payment, cancellation, mutilation, defacement, alleged
destruction, theft, loss and replacement and (b) make such records
available for inspection at all reasonable times by the Issuer, the
Trustee and the other Agents.
9.5 Delivery of notices
The Registrar shall, upon and in accordance with the instructions of the
Issuer and/or the Trustee received at least 10 days before the proposed
date for posting of notices, arrange for the delivery of any notice
which is to be given to the Noteholders and shall supply a copy thereof
to each other Agent and the Trustee.
9.6 Documents available for inspection
The Issuer shall provide to each Agent and the Trustee:
9.6.1 conformed copies of this Agreement and the Trust Deed;
9.6.2 such documents as may be specified as so available at the
Specified Offices of the Paying and Conversion Agents in the
Conditions; and
9.6.3 if the provisions of Condition 8(c) (Redemption for taxation
reasons) become relevant in relation to the Notes, the documents
contemplated under Condition 8(c) (Redemption for taxation
reasons); and
Each of the Agents shall make available for inspection during normal
business hours at its Specified Office the documents referred to above
and, upon reasonable request, will allow copies of such documents to be
taken.
9.7 Forms of Proxy
The Registrar shall, at the request of the Holder of any Note, make
available uncompleted and unexecuted Forms of Proxy and issue Block
Voting Instructions in a form and manner which comply with the
provisions of Schedule 2 Provisions for Meetings of the Noteholders) to
the Trust Deed. The Registrar shall keep a full record of completed and
executed Forms of Proxy received by it and will give to the Issuer and
the Trustee, not less than 24 hours before the time appointed for any
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meeting or adjourned meeting, full particulars of duly completed Forms
of Proxy received by it and of Block Voting Instructions issued by it in
respect of such meeting or adjourned meeting.
9.8 Exercise of put option
Each Paying and Conversion Agent shall make available to Noteholders
during the periods specified in Condition 8(b) (Redemption and Purchase
- Redemption at the option of Noteholders) or Condition 8(e) (Redemption
and Purchase -- Redemption at the option of Noteholders Following a
Change of Control) for the deposit of Put Option Notices forms of Put
Option Notice upon request during usual business hours at its Specified
Office. Upon receipt by a Paying and Conversion Agent of a duly
completed Put Option Notice and, in the case of a Put Option Notice
relating to Notes evidenced by an Note Certificate, such Note
Certificate in accordance with Condition 8(b) (Redemption and Purchase -
Redemption at the option of Noteholders) or Condition 8(e) (Redemption
and Purchase - Redemption at the option of Noteholders Following a
Change of Control), such Paying and Conversion Agent shall notify the
Issuer and (in the case of a Paying and Conversion Agent other than the
Principal Paying and Conversion Agent) the Principal Paying and
Conversion Agent thereof indicating the certificate or serial numbers
(if any) and principal amount of the Notes in respect of which the Put
Option is exercised. Any such Paying and Conversion Agent with which an
Note Certificate is deposited shall deliver a duly completed Put Option
Receipt to the depositing Noteholder and shall hold such Note
Certificate on behalf of the depositing Noteholder (but shall not, save
as provided below or in the Conditions, release it) until the relevant
Put Settlement Date, when it shall present such Note Certificate to
itself for payment of the redemption moneys therefor and interest (if
any) accrued to such date in accordance with the Conditions and Clause 7
(Payments to Noteholders) and pay such amounts in accordance with the
directions of the Noteholder contained in the Put Option Notice;
provided, however, that if, prior to such Put Settlement Date, the Notes
evidenced by such Note Certificate become immediately due and payable or
upon due presentation of such Note Certificate payment of such
redemption moneys is improperly withheld or refused, the relevant Paying
and Conversion Agent shall mail notification thereof to the depositing
Noteholder at such address as may have been given by such Noteholder in
the relevant Put Option Notice and shall hold such Note at its Specified
Office for collection by the depositing Noteholder against surrender of
the relevant Put Option Receipt. For so long as any outstanding Note
Certificate is held by a Paying and Conversion Agent in accordance with
the preceding sentence, the depositor of the relevant Note Certificate,
and not the relevant Paying and Conversion Agent, shall be deemed to be
the bearer of such Note Certificate for all purposes. Any Paying Agent
which receives a Put Option Notice in respect of Notes represented by
the Note Certificate shall make payment of the relevant redemption
moneys and interest accrued to the Put Settlement Date in accordance
with the Conditions, Clause 8 (Payments to Noteholders) and the terms of
the Note Certificate.
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9.9 Exercise of Call Option
If the Issuer intends to redeem the Notes pursuant to Condition 8(c)
(Redemption for tax reasons) or Condition 8(d) (Redemption and Purchase
- Redemption at the Option of the Issuer), it shall, at least 14 days
before the latest date for delivery of the notice of redemption required
to be given to Noteholders, give notice to the Principal Paying and
Conversion Agent and the Trustee of its intention to redeem the Notes
pursuant to this Condition stating the date on which it anticipates such
Notes may be redeemed. The Principal Paying and Conversion Agent shall
at the expense of the Issuer deliver the notice required in connection
with such redemption on behalf of the Issuer. Such notice shall specify:
9.9.1 the date when the relevant redemption will take place; and
9.9.2 the last day on which Conversion Rights may be exercised by a
Noteholder.
10. FEES AND EXPENSES
10.1 Fees
The Issuer shall pay to the Principal Paying and Conversion Agent for
the account of the Agents such fees as may be separately agreed between
the Issuer and the Principal Paying and Conversion Agent in respect of
the services of the Agents hereunder (plus any applicable value added
tax).
10.2 Front-end expenses
The Issuer shall on demand reimburse the Principal Paying and Conversion
Agent for all expenses properly incurred by it in the negotiation,
preparation and execution of this Agreement, and shall on demand
reimburse each Agent for all expenses (including, without limitation,
legal fees and any publication, advertising, communication, courier,
postage and other out-of-pocket expenses) properly incurred in
connection with its services hereunder (plus any applicable value added
tax), other than such costs and expenses as are separately agreed to be
reimbursed out of the fees payable under Clause 10.1 (Fees).
10.3 Taxes
The Issuer shall pay all stamp, registration and other taxes and duties
(including any interest and penalties thereon or in connection
therewith) which are payable upon or in connection with the execution
and delivery of this Agreement, and the Issuer shall jointly and
severally indemnify each Paying and Conversion Agent on demand against
any claim, demand, action, liability, damages, cost, loss or expense
(including, without limitation, legal fees and any applicable value
added tax) which it incurs as a result or arising out of or in relation
to any failure to pay or delay in paying any of the same. All payments
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by the Issuer under this Clause 10 (Fees and Expenses) or Clause 11.4
(Indemnity in favour of the Agents) shall be made free and clear of, and
without withholding or deduction for, any taxes, duties, assessments or
governmental charges of whatsoever nature imposed, levied, collected,
withheld or assessed by the United Kingdom, the United States of America
or the Republic of Kazakhstan or any political subdivision or any
authority thereof or therein having power to tax, unless such
withholding or deduction is required by law. In that event, the Issuer
shall pay such additional amounts as will result in the receipt by the
relevant Agent of such amounts as would have been received by it if no
such withholding or deduction had been required.
11. TERMS OF APPOINTMENT
11.1 Rights and powers
Each Agent may, in connection with its services hereunder:
11.1.1 except as ordered by a court of competent jurisdiction or
otherwise required by law and regardless of any notice of
ownership, trust or any other interest therein, any writing on
the Note Certificate relating to any Note by any person (other
than a duly executed form of transfer) or any notice of any
previous loss or theft thereof, but subject to sub-clause 7.1.1
(Payments by Paying and Conversion Agents), treat the registered
Holder of any Note as its absolute owner for all purposes and
make payments thereon accordingly;
11.1.2 assume that the terms of each Note Certificate as issued are
correct;
11.1.3 rely upon and shall be protected against liability for acting on
the terms of any notice, communication or other document
believed by it to be genuine and from the proper party; and
11.1.4 engage and pay for the advice or services of any lawyers or
other experts whose advice or services it considers necessary
and rely upon any advice so obtained (and such Agent shall be
protected and shall incur no liability as against the Issuer in
respect of any action taken, or permitted to be taken, in
accordance with such advice and in good faith).
11.2 Extent of duties
Each Agent shall only be obliged to perform the duties set out herein.
No Agent shall:
11.2.1 be under any fiduciary duty or other obligation towards or have
any relationship of agency or trust for or with any person other
than the Issuer and the Trustee; or
11.2.2 be responsible for or liable in respect of the legality,
validity or enforceability of any Note Certificate (other than
in respect of authentication of Note Certificates by it in
accordance with this Agreement) or any act or omission of any
other person (including, without limitation, any other Agent).
11.3 Freedom to transact
Each Agent may purchase, hold and dispose of Notes and may enter into
any transaction (including, without limitation, any depository, trust or
agency transaction) with any Holders of Notes or with any other person
in the same manner as if it had not been appointed as the agent of the
Issuer in relation to the Notes.
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11.4 Indemnity in favour of the Agents
The Issuer shall indemnify each Agent on demand against any claim,
demand, action, liability, damages, cost, loss or expense (including,
without limitation, legal fees properly incurred and any applicable
value added tax) which it incurs, other than such costs and expenses as
are separately agreed to be reimbursed out of the fees payable under
Clause 10.1 (Fees) and otherwise than by reason of its own negligence or
wilful default or bad faith, as a result or arising out of or in
relation to its acting as the agent of the Issuer in relation to the
Notes. Notwithstanding the foregoing, under no circumstances will any
Agent be liable to the Issuer or any other party to this Agreement for
any consequential loss (being loss of business, goodwill, opportunity or
profit) of any kind whatsoever, even if advised of the possibility of
such loss or damage. The indemnity contained in this Clause 11 shall
survive the termination or expiry of this Agreement.
12. CHANGES IN AGENTS
12.1 Resignation
Any Agent may resign its appointment upon not less than 30 days' notice
to the Issuer (with a copy to the Trustee and, in the case of an Agent
other than the Principal Paying and Conversion Agent, to the Principal
Paying and Conversion Agent); provided, however, that:
12.1.1 if such resignation would otherwise take effect less than 30
days before or after the maturity date or other date for
redemption of the Notes or any interest payment date in relation
to the Notes, it shall not take effect until the thirtieth day
following such date; and
12.1.2 in the case of the Registrar or Principal Paying and Conversion
Agent, such resignation shall not take effect until a successor
has been duly appointed consistently with Clause 12.4
(Additional and successor agents) or Clause 12.5 (Agents may
appoint successors) and notice of such appointment has been
given to the Noteholders.
12.2 Revocation
The Issuer may (with the prior written approval of the Trustee) revoke
its appointment of any Agent by not less than 30 days' notice to such
Agent (with a copy, in the case of an Agent other than the Principal
Paying and Conversion Agent, to the Principal Paying and Conversion
Agent); provided, however, that, in the case of the Registrar or the
Principal Paying and Conversion Agent, such revocation shall not take
effect until a successor has been duly appointed consistently with
Clause 12.4 (Additional and successor agents) or Clause 12.5 (Agents may
appoint successors) and previously approved in writing by the Trustee
and notice of such appointment has been given to the Noteholders.
12.3 Automatic termination
The appointment of any Agent shall terminate forthwith if (a) such Agent
becomes incapable of acting, (b) a secured party takes possession, or a
receiver, manager or other similar officer is appointed, of the whole or
any part of the undertaking, assets and revenues of such Agent, (c) such
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Agent admits in writing its insolvency or inability to pay its debts as
they fall due, (d) an administrator or liquidator of such Agent or the
whole or any part of the undertaking, assets and revenues of such Agent
is appointed (or application for any such appointment is made), (e) such
Agent takes any action for a readjustment or deferment of any of its
obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares a
moratorium in respect of any of its indebtedness, (f) an order is made
or an effective resolution is passed for the winding-up of such Agent or
(g) any event occurs which has an analogous effect to any of the
foregoing. If the appointment of the Registrar or the Principal Paying
and Conversion Agent is terminated in accordance with the preceding
sentence, the Issuer shall forthwith appoint a successor in accordance
with Clause 12.4 (Additional and successor agents).
12.4 Additional and successor agents
The Issuer may (with the prior written approval of the Trustee) appoint
a successor registrar or principal paying and conversion agent,
additional or successor paying and conversion agents or additional or
successor transfer agents provided that the Specified Office of any such
additional or successor registrar or transfer agent must be outside of
the United Kingdom, and shall forthwith give notice of any such
appointment to the continuing Agents, the Noteholders and the Trustee,
whereupon the Issuer, the continuing Agents, the Trustee and the
additional or successor registrar or principal paying and conversion
agent or paying and conversion agent or transfer agent shall acquire and
become subject to the same rights and obligations between themselves as
if they had entered into an agreement in the form mutatis mutandis of
this Agreement.
12.5 Agents may appoint successors
If the Registrar or Principal Paying and Conversion Agent gives notice
of its resignation in accordance with Clause 12.1 (Resignation) and by
the tenth day before the expiry of such notice a successor has not been
duly appointed in accordance with Clause 12.4 (Additional and successor
agents), the Registrar or Principal Paying and Conversion Agent which is
resigning may itself, following such consultation with the Issuer as is
practicable in the circumstances and with the prior written approval of
the Trustee, appoint as its successor any reputable and experienced
financial institution and give notice of such appointment to the Issuer,
the remaining Agents, the Trustee and the Noteholders, whereupon the
Issuer, the remaining Agents, the Trustee and such successor shall
acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of this Agreement.
12.6 Release
Upon any resignation or revocation taking effect under Clause 12.1
(Resignation) or 12.2 (Revocation) or any termination taking effect
under Clause 12.3 (Automatic termination), the relevant Agent shall:
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12.6.1 be released and discharged from its obligations under this
Agreement (save that it shall remain entitled to the benefit of
and subject to Clause 10.3 (Taxes), Clause 11 (Terms of
Appointment) and Clause 12 (Changes in Agents));
12.6.2 in the case of the Registrar, deliver to the Issuer and to its
successor a copy, certified as true and up-to-date by an officer
or authorised signatory of the Registrar, of the records
maintained by it in accordance with Clause 4.1 (Maintenance of
the Register);
12.6.3 forthwith (upon payment to it of any amount due to it in
accordance with Clause 10 (Fees and Expenses) or Clause 11.4
(Indemnity in favour of the Agents) transfer all moneys and
papers (including any unissued Note Certificates held by it
hereunder and any documents held by it pursuant to Clause 9.6
(Documents available for inspection)) to its successor and, upon
appropriate notice, provide reasonable assistance to its
successor for the discharge of its duties and responsibilities
hereunder.
12.7 Merger
Any legal entity into which any Agent or the Trustee is merged or
converted or any legal entity resulting from any merger or conversion to
which such Agent or (as the case may be) the Trustee is a party or any
legal entity to which any Agent or (as the case may be) Trustee sells
all or substantially all of its corporate, trust and agency business,
shall, to the extent permitted by applicable law, be the successor to
such Agent or, as the case may be, the Trustee without any further
formality, whereupon the Issuer, the other Agents, the Trustee (if
applicable) and such successor shall acquire and become subject to the
same rights and obligations between themselves as if they had entered
into an agreement in the form mutatis mutandis of this Agreement. Notice
of any such merger or conversion shall forthwith be given by such
successor to the Issuer, the Trustee (if applicable) and the other
Agents and, by the Issuer at its own expense, the Noteholders.
12.8 Changes in Specified Offices
If any Agent decides to change its Specified Office (which may only be
effected within the same city unless the prior written approval of the
Issuer and the Trustee has been obtained provided that the Specified
Offices of the Transfer Agent and the Registrar must at all times be
outside the United Kingdom), it shall give notice to the Issuer (with a
copy to the Trustee and the other Agents) of the address of the new
Specified Office stating the date on which such change is to take
effect, which date shall be not less than 30 days after the date of such
notice. The Issuer shall at its own expense not less than 14 days prior
to the date on which such change is to take effect (unless the
appointment of the relevant Agent is to terminate pursuant to any of the
foregoing provisions of this Clause 12 (Changes in Agents) on or prior
to the date of such change) give notice thereof to the Noteholders.
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13. NOTICES
13.1 Addresses for notices
All notices and communications hereunder shall be made in writing (by
letter or fax) and shall be sent as follows:
13.1.1 if to the Issuer, to it at:
BMB Munai, Inc.
Fax: x0 0000 000 000
Attention: Askar Tashtitov
13.1.2 if to an Agent, to it at the address or fax number specified
against its name in Schedule 5 (Specified Offices of the Agents)
(or, in the case of an Agent not originally a party hereto,
specified by notice to the parties hereto at the time of its
appointment) for the attention of the person or department
specified therein;
13.1.3 if to the Trustee, to it at:
BNY Corporate Trustee Services Limited
Fax: x00 000 000 0000
Attention: Manager, Trustee Administration
or, in any case, to such other address or fax number or for the
attention of such other person or department as the addressee has by
prior notice to the sender specified for the purpose.
13.2 Effectiveness
Every notice or communication sent in accordance with Clause 13.1
(Addresses for notices) shall be effective, if sent by letter or fax,
upon receipt by the addressee, and provided, however, that any such
notice or communication which would otherwise take effect after 4.00
p.m. on any particular day shall not take effect until 10.00 a.m. on the
immediately succeeding business day in the place of the addressee.
13.3 Notices to Noteholders
Any notice required to be given to Noteholders under this Agreement
shall be given in accordance with the Conditions and at the expense of
the Issuer.
13.4 Notices in English
All notices and other communications hereunder shall be made in the
English language or shall be accompanied by a certified English
translation thereof. Any certified English translation delivered
hereunder shall be certified a true and accurate translation by a
professionally qualified translator or by some other person competent to
do so.
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14. LAW AND JURISDICTION
14.1 Governing law
This Agreement is governed by, and shall be construed in accordance
with, English law.
14.2 English courts and New York courts
The courts of (a) England and (b) the State of New York located in the
City and County of New York or the United States District Court for the
Southern District of New York have exclusive jurisdiction to settle any
dispute (a "Dispute"), arising from or connected with this Agreement
(including a dispute regarding the existence, validity or termination of
this Agreement) or the consequences of its nullity.
14.3 Appropriate forum
The parties agree that the courts referred to in Clause 15.2 (English
courts and New York courts) are the most appropriate and convenient
courts to settle any Dispute and, accordingly, that they will not argue
that any other courts are more appropriate or convenient.
14.4 Rights of the Agents to take proceedings outside England and the State
of New York Clause 15.2 (English courts and New York courts) is for the
benefit of the Agents only. As a result, nothing in this Clause 15 (Law
and jurisdiction) prevents the Agents from taking proceedings relating
to a Dispute ("Proceedings") in any other courts with jurisdiction. To
the extent allowed by law, the Agents may take concurrent Proceedings in
any number of jurisdictions.
14.5 Process agent
The Issuer agrees that the documents which start any Proceedings and any
other documents required to be served in relation to those Proceedings
may be served on it by being delivered (a) in connection with any
Proceedings in England, to Xxxxxxxx Chance Secretaries Limited at 00
Xxxxx Xxxx Xxxxxx, Xxxxxx X00 0XX or, if different, its registered
office for the time being or at any address of the Issuer in Great
Britain at which process may be served on it in accordance with Part
XXIII of the Companies Xxx 0000 and (b) in connection with any
Proceedings in the County of New York to CT Corporation System at 000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, if different,
its principal place of business in the County of New York for the time
being. If either such person is not or ceases to be effectively
appointed to accept service of process on behalf of the Issuer, the
Issuer shall, on the written demand of any Agent addressed and delivered
to the Issuer appoint a further person in England or (as the case may
be) the County of New York to accept service of process on its behalf
and, failing such appointment within 15 days, any Agent shall be
entitled to appoint such a person by written notice addressed to the
Issuer and delivered to the Issuer. Nothing in this paragraph shall
affect the right of any Agent to serve process in any other manner
permitted by law. This clause applies to Proceedings in England and in
the County of New York and to Proceedings elsewhere.
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15. MODIFICATION
This Agreement may be amended by further agreement among the parties
hereto and without the consent of the Noteholders.
The Principal Paying and Conversion Agent will not be responsible for
determining material prejudice to the Noteholders.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. Any party may enter into this
Agreement by signing any such counterpart.
17. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement shall have no rights under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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Schedule 1
REGULATIONS CONDERNING TRANSFERS AND REGISTRATION OF NOTES
1. The Notes are in the denomination of U.S.$100,000. Notes may only be
held in holdings in the aggregate principal amount of U.S.$100,000 and
integral multiples of U.S.$100,000 in excess thereof (each, an
"Authorised Holding").
2. Subject to paragraph 4 and paragraph 11 below, Notes may be transferred
by execution of the relevant form of transfer together with the
subscription or transferee's letter (as applicable) in the form
specified in Schedule 2 under the hand of the subscriber, transferor or,
where the transferor is a corporation, under its common seal or under
the hand of two of its officers duly authorised in writing. Where the
form of transfer is executed by an attorney or, in the case of a
corporation, under seal or under the hand of two of its officers duly
authorised in writing, a copy of the relevant power of attorney
certified by a financial institution in good standing or a notary public
or in such other manner as the Registrar may require or, as the case may
be, copies certified in the manner aforesaid of the documents
authorising such officers to sign and witness the affixing of the seal
must be delivered with the form of transfer. In this Schedule,
"transferor" shall, where the context permits or requires, include joint
transferors and shall be construed accordingly.
3. Each original subscriber of the Notes that purchases from the Issuer
must sign a subscription letter substantially in the form of Schedule 2
Part A for non-U.S. persons who purchase pursuant to Rule 903(b)(3)(iii)
of Regulation S. Investors that purchase the Notes in the secondary
market must sign a transferee's letter substantially in the form of
Schedule 2 Part B attached hereto for non-U.S. persons who purchase
pursuant to Rule 904 of Regulation S. The Issuer shall retain the right
to void any transfer for any inaccuracy made in, or any failure to
provide in writing, such representations and warranties.
4. The Note Certificate issued in respect of the Notes to be transferred
must be surrendered for registration, together with the form of transfer
(including any certification as to compliance with restrictions on
transfer included in such form of transfer) endorsed thereon, and the
relevant purchaser's letter or transferee letter (as applicable) duly
completed and executed, at the Specified Office of the Registrar or any
Transfer Agent, and together with such evidence as the Registrar or (as
the case may be) the relevant Transfer Agent may reasonably require to
prove the title of the transferor and the authority of the persons who
have executed the form of transfer. The signature of the person
effecting a transfer of a Note shall conform to any list of duly
authorised specimen signatures supplied by the Holder of such Note or be
certified by a financial institution in good standing, notary public or
in such other manner as the Registrar or such Transfer Agent may
require.
5. No Noteholder may require the transfer of a Note to be registered during
the period of 15 calendar days ending on the due date for any payment of
principal or interest in respect of such Note.
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6. No Noteholder which has executed a Form of Proxy in relation to a
Meeting may require the transfer of a Note covered by such Form of Proxy
to be registered until the earlier of the conclusion of the Meeting and
its adjournment for want of a quorum.
7. The executors or administrators of a deceased Holder of a Note (not
being one of several joint Holders) and, in the case of the death of one
or more of several joint Holders, the survivor or survivors of such
joint Holders, shall be the only persons recognised by the Issuer as
having any title to such Note.
8. Any person becoming entitled to any Notes in consequence of the death or
bankruptcy of the Holder of such Notes may, upon producing such evidence
that he holds the position in respect of which he proposes to act under
this paragraph or of his title as the Registrar or the relevant Transfer
Agent may require (including legal opinions), become registered himself
as the Holder of such Notes or, subject to the provisions of these
Regulations, the Notes and the Conditions as to transfer, may transfer
such Notes. The Issuer, the Transfer Agents, the Registrar and the
Paying Agents shall be at liberty to retain any amount payable upon the
Notes to which any person is so entitled until such person is so
registered or duly transfers such Notes.
9. Unless otherwise required by him and agreed by the Issuer and the
Registrar, the Holder of any Notes shall be entitled to receive only one
Note Certificate in respect of his holding.
10. The joint Holders of any Note shall be entitled to one Note Certificate
only in respect of their joint holding which shall, except where they
otherwise direct, be delivered to the joint Holder whose name appears
first in the Register in respect of the joint holding.
11. Where there is more than one transferee (to hold other than as joint
Holders), separate forms of transfer (obtainable from the Specified
Office of the Registrar or any Transfer Agent) must be completed in
respect of each new holding.
12. A Holder of Notes may transfer all or part only of his holding of Notes
provided that both the principal amount of Notes transferred and the
principal amount of the balance not transferred are an Authorised
Holding. Where a Holder of Notes has transferred part only of his
holding of Notes, a new Note Certificate in respect of the balance of
such holding will be delivered to him.
13. The Issuer, the Transfer Agents and the Registrar shall, save in the
case of the issue of replacement Notes pursuant to Condition 40
(Replacement of Note Certificates), make no charge to the Holders for
the registration of any holding of Notes or any transfer thereof or for
the issue of any Notes or for the delivery thereof at the Specified
Office of any Transfer Agent or the Registrar or by uninsured post to
the address specified by the Holder, but such registration, transfer,
issue or delivery shall be effected against such indemnity from the
Holder or the transferee thereof as the Registrar or the relevant
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Transfer Agent may require in respect of any tax or other duty of
whatever nature which may be levied or imposed in connection with such
registration, transfer, issue or delivery.
14. Provided a transfer of a Note is duly made in accordance with all
applicable requirements and restrictions upon transfer and the Note(s)
transferred are presented to a Transfer Agent and/or the Registrar in
accordance with the Agency Agreement and these Regulations, and subject
to unforeseen circumstances beyond the control of such Transfer Agent or
the Registrar arising, such Transfer Agent or the Registrar will, within
five business days of the request for transfer being duly made, deliver
at its Specified Office to the transferee or despatch by uninsured post
(at the request and risk of the transferee) to such address as the
transferee entitled to the Notes in relation to which such Note
Certificate is issued may have specified, a Note Certificate in respect
of which entries have been made in the Register, all formalities
complied with and the name of the transferee completed on the Note
Certificate by or on behalf of the Registrar; and, for the purposes of
this paragraph, "business day" means a day on which commercial banks are
open for business (including dealings in foreign currencies) in the
cities in which the Registrar and (if applicable) the relevant Transfer
Agent have their respective Specified Offices.
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Schedule 2
Part A
Form of Subscription Letter
for Regulation S Investor
BMB Munai, Inc.
000, Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxx "Forum"
050051, Almaty
Kazakhstan
Bayerische Hypo-und Vereinsbank XX
Xxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Dear Sirs:
The undersigned, to enable Bayerische Hypo-und Vereinsbank AG (the "Bookrunner")
to make offers and sales of BMB Munai, Inc.'s (the "Company") U.S.$ 60,000,000
5.0 per cent. Convertible Notes due 2012 (the "Notes") convertible into common
shares, currently of U.S.$ 0.001 par value each, in the share capital of the
Company (the "Shares"), of the Company pursuant to Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
agrees, confirms and certifies as follows:
1. The undersigned, on the undersigned's own behalf and on behalf of each
Account (defined below), if any, hereby agrees and gives a binding
commitment to subscribe for the total number of Notes specified on the
signature page hereto on the terms provided for herein and in the Term
Sheet (defined below). The subscription amount for the Notes so
subscribed will be paid pursuant to the instructions to be provided by
the Bookrunner on or before the business day preceding the Closing Date
(as such term is defined in the Placement Agreement to be entered into
between the Company and the Bookrunner). The undersigned, on the
undersigned's own behalf and on behalf of each Account, if any,
understands and agrees that the Bookrunner reserve the right to accept
or reject the undersigned's and/or any Account's subscription for the
Notes for any reason or for no reason, in whole or in part, at any time
prior to its acceptance by the Bookrunner. To the extent that the actual
number of Notes subscribed for and received by the undersigned (and/or
any Account) is different than the number subscribed for, the Company
and the Bookrunner may amend this letter to reflect the actual number of
Notes subscribed for and received by the undersigned (and/or any
Account). In the event of rejection of the entire subscription by the
Bookrunner, the undersigned's and any Account's payment hereunder will
be returned to the undersigned and this letter shall have no force or
effect.
-25-
2. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, hereby represents and warrants that it is not a "U.S.
person" (as defined in Rule 902(k) under the Securities Act) and
understands and agrees that (i) the undersigned is acquiring the Notes
in an offshore transaction in accordance with Rule 904 of Regulation S,
(ii) the undersigned is not acquiring, and has not entered into any
discussions regarding the undersigned's acquisition of, the Notes while
the undersigned was in the United States of America or any of its
territories or possessions, (iii) the Notes are being issued without
registration under the Securities Act by reason of an exemption that
depends, in part, on the accuracy of these representations and (iv) the
Notes may not, absent an applicable exemption, be transferred without
registration and/or qualification under the Securities Act and
applicable state securities laws and the laws of any other applicable
jurisdiction.
3. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, understands and agrees that the Notes and the Shares to
be issued on conversion of the Notes are being offered in a transaction
not involving any public offering within the United States within the
meaning of the Securities Act and that the Notes and the underlying
Shares have not been registered under the Securities Act and, unless so
registered, may not be sold except as permitted in the following
sentence. The undersigned, on the undersigned's own behalf and on behalf
of each Account, if any, agrees that, if in the future the undersigned
or any Account decides to offer, sell, pledge or otherwise transfer such
Notes and/or the underlying Shares prior to the date which is two years
after the date of purchase (the "Resale Restriction Termination Date"),
such Notes or the underlying Shares may be offered, resold, pledged or
otherwise transferred only (a) to the Company or a subsidiary thereof,
(b) pursuant to a registration statement that has been declared and is
effective under the Securities Act, (c) pursuant to offers and sales to
non-U.S. persons(1) that occur outside the United States within the
meaning of and in accordance with Regulation S, or (d) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any
requirement of law that the disposition of the undersigned's property or
such Account's property be at all times within the undersigned's or such
--------
(1) In order to qualify as a non-U.S. person under Regulation S, (a) the
proposed transferee's principal address must be outside the United States, (b)
the proposed transferee was located outside the United States at the time any
offer to buy the Notes was made to it and at the time that the buy order was
originated by it, and (c) the proposed transferee is not a "U.S. person" (as
defined in Rule 902(k) under the Securities Act).
-26-
Account's control and subject to compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. The undersigned,
on the undersigned's own behalf and on behalf of each Account, if any,
understands that the registrar and transfer agent for the Notes will not
be required to accept for registration of transfer any Note acquired by
the undersigned or any Account, except upon presentation of evidence
satisfactory to the Company and the transfer agent that an exemption to
the registration requirement under the Securities Act and the rules and
regulations thereunder have been complied with. The undersigned, on the
undersigned's own behalf and on behalf of each Account, if any, further
understands that any certificates, if any, representing the Notes
acquired by the undersigned or any Account will bear a legend reflecting
the substance of this paragraph and the paragraph immediately below. The
undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, acknowledges that the Company and the Bookrunner
reserve the right to restrict any offer, sale or other transfer of the
Notes (i) pursuant to clauses (c) or (d) above prior to the Resale
Restriction Termination Date, or (ii) prior to the end of the one-year
restricted period within the meaning of Rule 903(b)(3)(iii) Regulation S
under the Securities Act (the "Distribution Compliance Period"), to
require the completion, execution and delivery of a letter from the
transferee substantially in the form of the Transferee's Letter attached
hereto as Part B and certifications and other information satisfactory
to the Company and the registrar and transfer agent and an opinion of
counsel approved by the Company and the registrar and transfer agent to
ensure compliance with the Securities Act and the rules and regulations
thereunder.
4. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, hereby understands and agrees during the Distribution
Compliance Period, hedging transactions involving such Notes may not be
conducted unless in compliance with the Securities Act.
5. The undersigned has been furnished with all information that the
undersigned requested regarding the Notes.
6. The undersigned and each Account, if any, has such knowledge in
financial and business matters as to be capable of evaluating the merits
and risks of an investment in the Notes, and the undersigned has sought
such accounting, legal and tax advice as the undersigned has considered
necessary to make an informed investment decision, and the undersigned
and any Account is able to bear the economic risk of such investment and
can afford a complete loss of such investment.
7. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, hereby makes the representations, warranties, covenants
and agreements deemed to have been made by each investor under the
section of the Term Sheet entitled "Notice to Investors," and agrees to
be bound by the restrictions set forth in such section.
8. [The undersigned represents that it and each Account, if any, is either:
(A) a natural person with individual net worth, or joint net worth with
his/her spouse, at the time of purchase in excess of U.S.$1,000,000, or
(B)(i) a bank, insurance company, investment company or other entity or
institution having total assets in excess of U.S.$5,000,000 or (ii) an
entity all of whose equity owners are investors satisfying the standards
set forth in clause (A) or clause (B)(i).]
9. The undersigned (check applicable box):
[ ] is subscribing for Notes only on its own behalf and not for the
account of any other person or entity, or
-27-
[ ] is acting and subscribing for (or proposes to subscribe for)
Notes on behalf of itself and/or other persons, entities or
accounts (each, an "Account" and collectively, "Accounts"). The
undersigned, on the undersigned's own behalf and on behalf of
each Account, if any, represents and warrants that each Account
is not a "U.S. person" (as defined in Rule 902(k) under the
Securities Act) and was located outside the United States at the
time any offer to buy the Notes was made and at the time the
subscription order was originated by the undersigned or any such
Account.
10. The undersigned has received a copy of the Term Sheet relating to the
offering of the Notes and the underlying Shares described therein (the
"Term Sheet").
11. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, acknowledges that the Bookrunner, the Company and
others will rely on the acknowledgments, representations and warranties
contained in this letter. The undersigned agrees to promptly notify the
Bookrunner and the Company if any of the acknowledgments,
representations and warranties set forth herein are no longer accurate.
The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, agrees that each subscription by the undersigned of
securities from the Company will constitute a reaffirmation of the
acknowledgments, representations and warranties herein (as modified by
any such notice) as of the time of such subscription.
12. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, agrees to notify the Bookrunner and the Company of any
change in the certifications herein, and each subscription by the
undersigned of Notes from or through the Bookrunner will constitute a
reaffirmation of the certifications herein (as modified by any such
notice) as of the time of such subscription. The undersigned, on the
undersigned's own behalf and on behalf of each Account, if any, also
agrees to provide to the Bookrunner, promptly upon request, such
additional information that the Bookrunner may request relating to the
above certifications.
13. If the undersigned is acting on behalf of an Account, the undersigned
represents and warrants that the undersigned exercises sole investment
discretion with respect to and is authorized to make the
representations, and enter into the agreements, contained in this letter
on behalf of each Account.
14. The Bookrunner and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, ENGLISH LAW,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE
REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE.
-28-
IN WITNESS WHEREOF, the undersigned, on the undersigned's own behalf and on
behalf of each Account, if any, has caused this Subscription Letter to be
executed by its duly authorized representative as of the date set forth below.
[INVESTOR]
By:
Name:
Title:
Date:
Total Number of Notes subscribed for:__________________________
(The subscription amount for the Notes shall be paid pursuant to the
instructions to be provided by the Bookrunner. To the extent the actual number
of Notes subscribed for and received by the undersigned (and/or any Account) is
different than the number subscribed for, the Company and the Bookrunner may
amend this letter to reflect the actual number of Notes subscribed for and
received by the undersigned (and/or any Account).
-29-
Part B
Transferee's Letter
BMB Munai, Inc.
000, Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxx "Forum"
050051, Almaty
Kazakhstan
Dear Sirs:
In connection with the undersigned's proposed purchase of [BMB Munai, Inc.'s
(the "Company") U.S.$60,000,000 5.0 per cent. Convertible Notes due 2012 (the
"Notes") into common shares, currently of U.S.$ 0.001 par value each in the
share capital of the Company (the "Shares"), the Company from ("Seller"), the
undersigned confirms that:
1. The undersigned understands and agrees that the Notes and the Shares to
be issued on conversion of the Notes have been offered in a transaction
not involving any public offering within the United States within the
meaning of the Securities Act of 1933, as amended (the "Securities
Act"), and that the Notes and the underlying Shares have not been
registered under the Securities Act and, unless so registered, may not
be sold except as permitted in the following sentence. The undersigned
agrees, on the undersigned's own behalf and on behalf of each Account
(defined below), if any, that, if in the future it decides to offer,
resell, pledge or otherwise transfer such Notes and/or the underlying
Shares prior to the date which is two years after the date of initial
purchase from the Company (the "Resale Restriction Termination Date"),
such Notes or underlying Shares may be offered, resold, pledged or
otherwise transferred only (a) to the Company or a subsidiary thereof,
(b) pursuant to a registration statement that has been declared and is
effective under the Securities Act, (c) pursuant to offers and sales to
non-U.S. persons(2) that occur outside the United States within the
meaning of and in accordance with Regulation S ("Regulation S") under
the Securities Act, or (d) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the
disposition of the undersigned's property or such Account's property be
at all times within the undersigned's or such Account's control and
subject to compliance with any applicable state securities laws. The
------------
(2) In order to qualify as a non-U.S. person under Regulation S, (a) the
proposed transferee's principal address must be outside the United
States, (b) the proposed transferee was located outside the United
States at the time any offer to buy the Notes was made to it and at the
time that the buy order was originated by it, and (c) the proposed
transferee is not a "U.S. person" (as defined in Rule 902(k) under the
Securities Act).
-30-
foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. The undersigned, on the undersigned's own
behalf and on behalf of each Account, if any, understands that the
registrar and transfer agent for the Notes will not be required to
accept for registration of transfer any Notes acquired by the
undersigned or any Account, except upon presentation of evidence
satisfactory to the Company and the transfer agent that an exemption to
the registration requirement under the Securities Act and the rules and
regulations thereunder have been complied with. The undersigned, on the
undersigned's own behalf and on behalf of each Account, if any, further
understands that any certificates, if any, representing Notes acquired
by the undersigned or any Account will bear a legend reflecting the
substance of this paragraph and the paragraph immediately below. The
undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, acknowledges that the Company reserves the right to
restrict any offer, sale or other transfer of the Notes (i) pursuant to
clauses (c) or (d) above prior to the Resale Restriction Termination
Date, or (ii) prior to the end of the one-year restricted period within
the meaning of Rule 903(b)(3)(iii) of Regulation S under the Securities
Act (the "Distribution Compliance Period"), to require the completion,
execution and delivery of a letter from the transferee substantially in
the form hereof and certifications and other information satisfactory to
the Company and the registrar and transfer agent and an opinion of
counsel approved by the Company and the registrar and transfer agent to
ensure compliance with the Securities Act and the rules and regulations
thereunder.
2. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, hereby understands and agrees during the Distribution
Compliance Period, hedging transactions involving such Notes may not be
conducted unless in compliance with the Securities Act.
3. [The undersigned is an Accredited Investor as defined in Rule 501(a)
under the Securities Act.]
4. The undersigned and each Account, if any, has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Notes, and each
of the undersigned and Account is able to bear the economic risk of such
investment and can afford the complete loss of such investment.
5. The undersigned and each Account, if any, is acquiring the Notes for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act.
The undersigned and each Account, if any, was not formed for the
specific purpose of acquiring the Notes.
6. The undersigned is acquiring the Notes for the undersigned's own account
or for one or more accounts (each of which is an Accredited Investor as
defined in Rule 501(a) under the Securities Act) as to each of which the
undersigned exercises sole investment discretion and is authorized to
make the representations, and enter into the agreements, contained in
this letter (each, an "Account" and collectively, "Accounts").
7. The undersigned has received such information as the undersigned deems
necessary in order to make an investment decision on the undersigned's
own behalf and on behalf of each Account, if any, with respect to the
Notes. The undersigned, on the undersigned's own behalf and on behalf of
each Account, if any, acknowledges that the undersigned and the
undersigned's advisor(s), if any, have had the right to ask questions of
and receive answers from the Company and its officers and directors, and
to obtain such information concerning the terms and conditions of this
offering of the Notes, as the undersigned and the undersigned's
-31-
advisor(s), if any, deem necessary to verify the accuracy of any
information that the undersigned deems relevant to making an investment
in the Notes. The undersigned, on the undersigned's own behalf and on
behalf of each Account, if any, represents and agrees that prior to the
undersigned's agreement to purchase Notes, the undersigned and the
undersigned's advisor(s), if any, will have asked such questions,
received such answers and obtained such information as the undersigned
deems necessary to verify the accuracy of any information that the
undersigned deems relevant to making an investment in Notes. The
undersigned became aware of this offering of the Notes and the Notes was
offered to the undersigned solely by direct contact between the
undersigned and Seller. The undersigned did not become aware of, nor
were the Notes offered to the undersigned by any other means, including,
in each case, by any form of general solicitation or general
advertising. In making the decision to purchase the Notes, the
undersigned relied solely on the information filed with the Securities
and Exchange Commission or obtained by the undersigned directly from the
Company as a result of any inquiries by the undersigned or the
undersigned's advisor(s).
8. The undersigned (check applicable box):
[ ] is:
[ ] is not:
an "affiliate" (as defined in Rule 144 under the Securities Act) of the
Company or acting on behalf of an affiliate of the Company.
9. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, agrees to notify the Company and Seller of any change
in the certifications herein, and each purchase by the undersigned of
the Notes from or through Seller will constitute a reaffirmation of the
certifications herein (as modified by any such notice) as of the time of
such purchase. The undersigned, on the undersigned's own behalf and on
behalf of each Account, if any, also agrees to provide to the Company,
promptly upon request, such additional information that the Company may
request relating to the above certifications.
10. The undersigned, on the undersigned's own behalf and on behalf of each
Account, if any, acknowledges that the Company, Seller and others will
rely on the acknowledgments, representations and warranties contained in
this letter. The undersigned agrees to promptly notify the Company and
Seller if any of the acknowledgments, representations and warranties set
forth herein are no longer accurate. The undersigned, on the
undersigned's own behalf and on behalf of each Account, if any, agrees
that each purchase by the undersigned of securities from Seller will
constitute a reaffirmation of the acknowledgments, representations and
warranties herein (as modified by any such notice) as of the time of
such purchase.
-32-
11. The Company and Seller are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, ENGLISH LAW,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER STATE.
Date: Very truly yours,
By:
Print Name:
Company Name:
Title:
Address:
Notes to be purchased:
___________ Notes.
-33-
Schedule 3
Form of Conversion Notice
To: [ ]
BMB MUNAI, INC.
(incorporated with limited liability under
the laws of the State of Nevada)
U.S.$60,000,000
5.0 per cent. Convertible Notes due 2012
CONVERSION NOTICE
(Please read the notes overleaf before completing this Conversion Notice)
Name: ________________________________________ Date:________________________
Address: _____________________________________________________________________
______________________________________________________________________________
Email: _________________________________________ Fax:_________________________
Signature:________________________________________
Terms used in this Conversion Notice and not otherwise defined have the meanings
given to them in the Paying and Conversion Agency Agreement dated 13 July 2007
between the Issuer, the Registrar, the Principal Paying and Conversion Agent,
the Transfer Agents, the other paying and conversion agents named therein and
the Trustee.
I/We, being the holders of the Note(s) specified below, hereby elect to convert
the principal amount of such Notes as specified below of which I/We are the
holders(s) or in which I/we have an interest (as specified below) for such
number of Shares as is calculated by dividing the principal amount of the Notes
by the Conversion Price in effect on the Conversion Date in accordance with the
Conditions.
1. Total principal amount and the serial numbers of Notes to which this notice
applies:
Number of Notes:________________________________________________________________
Total principal amount (must be a multiple
of U.S.$100,000:________________________________________________________________
Serial numbers of Notes:________________________________________________________
-34-
2. I/we hereby request that:
the certificate(s) for the Shares which are to be delivered as a result of this
Conversion Notice be despatched (at my/our risk and, if sent at my/our request
otherwise than by ordinary mail, at my/our expense) to the person whose name and
address is given below and in the manner specified below or any other cash
amounts payable as a result of this Conversion Notice be made in the manner
specified below:
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Manner of despatch:_____________________________________________________________
Accounts for other cash amounts payable as a result of this Conversion Notice,
if any:
Account no:_____________________________________________________________________
Account name:___________________________________________________________________
Bank:___________________________________________________________________________
Branch:_________________________________________________________________________
Sort Code:______________________________________________________________________
[I/We hereby certify that at the time of execution and deposit of this
Conversion Notice, neither I/we nor any person who has the beneficial
interest in the Notes specified above is/are in the United States or a
U.S. person (within the meaning of Regulation S ("Regulation S") under
the US Securities Act of 1933, as amended) and that I/we, or such
person, if applicable, purchased such Notes, or the beneficial interest
therein, in a transaction made in accordance with Rule 903 (b)(3)(iii)
or Rule 904 of Regulation S.*]
----------------
* No Shares will be issued to a Noteholder unless the Noteholder satisfies the
foregoing conditions.
-35-
Notes
(1) This Conversion Notice will be void unless the introductory details and
Sections 1 and 2 are duly completed.
(2) Your attention is particularly drawn to Condition 12 (Conversion)
through to Condition 15 (Rights Arising on Conversion) of the Notes with
respect to the conditions relating to conversion of the Notes.
The following to be completed by the Paying and Conversion Agent:
(A) Note conversion identification reference:
________________________________________________________________________
(B) Date of delivery of Conversion Notice to Paying and Conversion Agent:
________________________________________________________________________
(C) Conversion Date:
________________________________________________________________________
(D) Conversion Price on Conversion Date:
________________________________________________________________________
(E) Number of Shares to be delivered:
________________________________________________________________________
(F) Amount of any other cash payments in respect of Conversion Rights,
pursuant to the Conditions:
________________________________________________________________________
-36-
Schedule 4
Form of Put Option Notice
To: [ ]
BMB MUNAI, INC.
(incorporated with limited liability under
the laws of the State of Nevada)
U.S.$60,000,000
5.0 per cent. Convertible Notes due 2012
PUT OPTION NOTICE
By depositing this duly completed Notice with the above Paying and Conversion
Agent for the above Notes (the "Notes") in accordance with [Condition 8(b)
(Redemption and Purchase - Redemption at the option of Noteholders)] [Condition
8(e) (Redemption and Purchase - Redemption at the option of Noteholders
Following a Change of Control)], the undersigned Holder of the principal amount
of Notes specified below and evidenced by the Note Certificate(s) referred to
below exercises its option to have such principal amount of Notes redeemed in
accordance with [Condition 8(b) (Redemption and Purchase - Redemption at the
option of Noteholders)] Condition 8(e) (Redemption and Purchase - Redemption at
the option of Noteholders Following a Change of Control) on [relevant Put
Settlement Date].
This Notice relates to the Note(s) in the aggregate principal amount of
U.S.$___________ evidenced by Note Certificates bearing the following serial
numbers:
__________________________________________________
__________________________________________________
__________________________________________________
Payment should be made by:
- [U.S. dollars cheque drawn on a bank in New York City or London and in
favour of [name of payee] and mailed at the payee's risk by uninsured
airmail post to [name of addressee] at [addressee's address].]
OR
- [transfer to [details of the relevant account maintained by the payee]
with [name and address of the relevant bank].]
If the Note Certificates referred to above are to be returned to the undersigned
in accordance with the Conditions and the Agency Agreement relating to the
Notes, they should be returned by post to:
__________________________________________________
__________________________________________________
__________________________________________________
-37-
The undersigned acknowledges that any Note Certificates so returned will be sent
by uninsured airmail post at the risk of the registered Holder.
Name of holder: _________________________________________________________
Signature of holder:_____________________________________________________
Date:____________________________________________________________________
[To be completed by Paying and Conversion Agent:]
Received by:_____________________________________________________________
[Signature and stamp of Paying and Conversion Agent:]
At its office at: _______________________________________________________
_______________________________________________________
On: _______________________________________________________
THIS NOTICE WILL NOT BE VALID UNLESS ALL OF THE PARAGRAPHS REQUIRING COMPLETION
HAVE BEEN DULY COMPLETED.
-38-
Schedule 5
Specified Offices of the Agents
The Registrar:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: XxXxxx Sarrabo
The Principal Paying and Conversion Agent:
THE BANK OF NEW YORK
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
Attention: Corporate Trust Administration
The Transfer Agent:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: XxXxxx Sarrabo
-39-
SIGNATURES
The Issuer
BMB MUNAI, INC.
By:
The Principal Paying and Conversion Agent
THE BANK OF NEW YORK
By:
The Registrar
THE BANK OF NEW YORK
By:
The Trustee
BNY CORPORATE TRUSTEE SERVICES LIMITED
By:
-40-
