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Exhibit 10.49
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INVESTMENT NUMBER 4905
SHAREHOLDERS AGREEMENT
AMONG
PIONEER OMEGA, INC.
AND
PIONEER FIRST RUSSIA, INC.
AND
INTERNATIONAL FINANCE CORPORATION
DATED OCTOBER 16, 1996
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TABLE OF CONTENTS
ARTICLE OR
SECTION ITEM PAGE NO.
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ARTICLE I .....................................................................2
DEFINITIONS ...................................................................2
Section 1.01. Definitions .................................................2
ARTICLE II ....................................................................2
RETENTION OF SHARES ...........................................................2
Section 2.01. Retention of Shares .........................................2
Section 2.02. No Recognition ..............................................3
ARTICLE III ...................................................................3
COVENANTS OF PIONEER OMEGA ....................................................3
Section 3.01. IFC Director ................................................3
Section 3.02. IFC Approval ................................................3
Section 3.03. Company Operations ..........................................4
Section 3.04. Insurance, Auditors .........................................4
Section 3.05. Reports .....................................................5
ARTICLE IV ....................................................................6
REPRESENTATIONS AND WARRANTIES ................................................6
Section 4.01. Representations and Warranties ..............................6
ARTICLE V .....................................................................6
MISCELLANEOUS .................................................................6
Section 5.01. Notices and Requests ........................................6
Section 5.02. Governing Law ...............................................7
Section 5.03. Successors and Assigns ......................................8
Section 5.04. Counterparts ................................................8
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SHAREHOLDERS AGREEMENT
AGREEMENT, dated October 16, 1996, among: PIONEER FIRST RUSSIA, INC., a
corporation organized and existing under the laws of the State of Delaware, in
the United States of America (the "Company");
Address for communications:
Mail: c/o The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: General Counsel
Facsimile: (000) 000-0000
PIONEER OMEGA, INC., a corporation organized and existing under the laws of the
State of Delaware, in the United States of America ("Pioneer Omega");
Address for communications:
Mail: c/o The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: General Counsel
Facsimile: (000) 000-0000
and INTERNATIONAL FINANCE CORPORATION, an international organization established
by Articles of Agreement among its member countries ("IFC"),
Address for communications:
Mail: 0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attn.: Director, Europe Department
Facsimile: (000) 000-0000
(000) 000-0000
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WHEREAS:
(A) By a Subscription Agreement of even date herewith between the Company
and IFC (the "Subscription Agreement"), IFC has agreed, subject to the terms and
conditions set forth therein, to subscribe and pay for in full shares of the
common stock of the Company (the "IFC Shares").
(B) It is a condition of subscription and disbursement for the IFC Shares
that the parties hereto have entered into this Agreement.
(C) The Company and Pioneer Omega, in consideration of IFC entering the
Subscription Agreement and to induce IFC to make the first subscription
thereunder, have agreed to undertake the obligations herein contained.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Wherever used in this Agreement, unless otherwise defined herein or unless
the context otherwise requires, the terms defined in the Subscription Agreement
have the same respective meanings whenever used in this Agreement.
ARTICLE II
RETENTION OF SHARES
Section 2.01. Retention of Shares.
Pioneer Omega hereby undertakes that, so long as IFC remains a shareholder
of the Company, unless IFC otherwise agrees, it shall not sell, transfer,
assign, pledge or in any other manner dispose of, or encumber or permit any
encumbrances to exist over, any of the Shares held by it from time to time, if
such transfer would have the effect of reducing the Shares held by Pioneer Omega
to less than fifty-one per cent (51%) of the outstanding Shares. Transfers of
Shares
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between Pioneer Omega and other Subsidiaries of Pioneer will not be subject to
the provisions of this Section 2.01, so long as the transferee has delivered to
IFC a deed of ratification and accession under which the transferee undertakes
to be bound by this Agreement as if it were an original party to this Agreement.
Section 2.02. No Recognition.
The Company agrees with IFC that, to the extent permitted by law, it will
not recognize any purported sale, transfer, assignment, pledge, encumbrance or
other disposition of Shares in violation of this Article II, and shall in any
event notify IFC promptly upon receipt of any request to register or record any
transfer of the Shares held by Pioneer Omega.
ARTICLE III
COVENANTS OF PIONEER OMEGA
Section 3.01. IFC Director.
(a) The Board of Directors of the Company ("Board") shall initially
consist of six (6) Directors. The Company agrees that until such time as IFC
shall cease to be a shareholder of the Company, IFC shall be entitled to
nominate one person to the Board and Pioneer Omega agrees to vote for the
election of the person nominated by IFC as Director.
(b) Pioneer Omega agrees to vote to remove the person nominated by IFC
from the Board of Directors upon IFC's request.
(c) In the event that that the person nominated by IFC shall cease for any
reason to be a Director, IFC shall have the right to nominate a new Director,
and Pioneer Omega agrees to vote to elect such person as Director.
(d) IFC agrees to vote to remove any person nominated by Pioneer Omega
from the Board of Directors at Pioneer Omega's request.
Section 3.02. IFC Approval. Pioneer Omega shall procure that unless
applicable law for the time being in force otherwise requires, the Board of
Directors shall not pass resolutions concerning any of the following matters,
unless at a meeting duly convened at which the appropriate quorum is present and
the Director nominated by IFC votes in favor of such resolution:
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(a) material changes to the Policy Statements of each of the Company,
KUIF, Pioneer Securities, Pioneer Services and First Voucher Bank, governing the
activities and management of their respective operations;
(b) material amendments of the management service contracts between
Pioneer and each of the Company's Subsidiaries;
(c) material amendments to the management agreement between First Voucher
Fund and KUIF; and
(d) changes to the dividend policy as set out in the Letter of
Information.
Section 3.03. Company Operations.
Pioneer Omega shall procure:
(a) that unless applicable law for the time being in force otherwise
requires, the Company will at all times carry out the Project in accordance with
the project description which is contained in the Letter of Information (subject
to any modifications which IFC may agree) and in accordance with the Policy
Statements adopted by the Board of Directors of the Company and the Board of
Directors of the Subsidiaries;
(b) that the proceeds of the first and second IFC subscriptions shall be
applied exclusively to the Project; and
(c) that IFC shall have the right to receive and comment on the proposed
annual (and any interim) budgets prepared for the Company and any Subsidiary,
and the Company and Pioneer Omega hereby agree to accept all reasonable requests
by IFC for changes to any such budgets.
Section 3.04. Insurance, Auditors.
Pioneer Omega shall procure that the Company will at all times:
(a) insure its properties and business with financially sound and
reputable insurers against loss and damage in such manner and to the same extent
as shall be no less than that generally accepted as customary in regard to
property and business of like character including, without limitation to the
generality of the
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foregoing, the risks and coverages enumerated in Annex A of the Subscription
Agreement; and
(b) maintain at all times a firm of independent public accountants
reasonably acceptable to IFC and authorize them to communicate directly with
IFC.
Section 3.05. Reports.
(a) Pioneer Omega shall procure that the Company will:
(i) prepare annual financial statements, reflecting truly and
fairly the financial position and the results of operations in
conformity with generally accepted accounting principles in
the United States consistently applied and audited by the
Company's auditors; and
(ii) cause its auditors to prepare an annual management letter
assessing the Company's compliance with the internal and
external policies and contractual obligations and the adequacy
of its appraisal, follow-up and internal control standards
which will also assess the compliance of the Company and its
subsidiaries with the risk management guidelines and financial
policies contained in the Policy Statements. These documents
will be made available to IFC within 120 days of the end of
the relevant fiscal year.
(b) Pioneer Omega shall procure that the Company will prepare quarterly
operational reports, in a format acceptable to IFC, which shall contain
appropriate narrative and statistical information on the business of the Company
and a general review of market conditions which affect the Company. These
reports will reflect truly and fairly the Company's financial position and
results of the operations and will be prepared in conformity with generally
accepted accounting principles in the United States. In addition, these
quarterly reports will assess the compliance of the Company and its Subsidiaries
with the risk management guidelines and financial policies contained in the
Policy Statements. These reports will be made available to IFC within 60 days of
the end of the relevant quarter.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties.
Each of the Company, Pioneer Omega and IFC represents and warrants that:
(a) it has the corporate power to enter into this Agreement;
(b) it has full power, authority and legal right to execute and deliver
this Agreement, and to perform and observe the terms and provisions hereof
applicable to it;
(c) the execution and delivery of this Agreement and the performance of
its terms have been duly authorized by all necessary actions on its part;
(d) the execution and delivery of this Agreement and the performance of
its obligations thereunder will not violate or exceed its powers, or contravene
(i) any provision of any applicable law, (ii) any provision of its Certificate
of Incorporation or (iii) any provision of any mortgage, deed, contract or
agreement to which it is a party, or which is binding upon it or any of its
assets, except that IFC represents only that the execution, delivery and
performance of this Agreement does not violate or exceed its powers or
contravene any provision of its Articles of Agreement; and
(e) all authorizations, consents, approvals and licenses required for the
execution and delivery of this Agreement and its performance have been duly
obtained or granted and are in full force and effect.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices and Requests.
Any notice, request or other communication to be given or made under this
Agreement to IFC, Pioneer Omega or the Company shall be in writing and
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except as otherwise provided in this Agreement it shall be deemed to have been
duly given or made when it shall be delivered by hand, mail (or airmail if sent
to another country), or confirmed facsimile to the party to which it is required
or permitted to be given or made at the relevant address for communications of
such party which is specified at the opening of this Agreement or at such other
address for communication as such party shall have designated by notice to the
party giving or making such notice, request or other communication. Any
communication to be delivered to any party under this Agreement which is sent by
confirmed facsimile will constitute written legal evidence between the parties.
Section 5.02. Governing Law.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, United States of America.
(b) The Company, Pioneer Omega and IFC, hereby irrevocably agree that any
legal action, suit or proceeding arising out of or relating to this Agreement be
brought in the courts of the State of New York or of the United States of
America located in the State of New York. By the execution and delivery of this
Agreement, the Company, Pioneer Omega and IFC each hereby irrevocably submits to
the jurisdiction of any such court in any such action, suit or proceeding and
the Company and Pioneer Omega designates, appoints and empowers CT Corporation
as its authorized agent to receive for and on its behalf service of summons or
other legal process in any such action, suit or proceeding in the State of New
York. Final judgment against any party in any such action, suit or proceeding
shall be conclusive. Nothing herein shall affect the right of IFC to commence
legal proceedings or otherwise xxx the Company or Pioneer Omega in any other
appropriate jurisdiction or to serve process upon the Company or Pioneer Omega
in any manner authorized by the laws of any such jurisdiction.
(c) Each of the parties hereto further covenants and agrees that, for so
long as it shall be bound by this Agreement, it shall maintain a duly appointed
agent for the service of summons and other legal process in New York, New York,
United States of America, for purposes of any legal action, suit or proceeding
brought in respect of this Agreement and shall keep the other parties hereto
advised of the identity and location of such agent. Each of the parties hereto
further irrevocably consents, if for any reason there is no authorized agent for
service of process in New York, to the service of process out of the said courts
by mailing copies thereof by registered United States air mail, postage prepaid,
to such party at its address specified herein; and in such a case the sender
shall also send by confirmed facsimile, or shall undertake that there is also
sent by confirmed facsimile, a copy of such process to the party being served.
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(d) The mailing of process in any such action, suit or proceeding (and
whether to a party or to its authorized agent) shall be deemed personal service
and accepted by a party as such and shall be legal and binding upon a party for
all the purposes of any such action, suit or proceeding.
(e) In addition, each of the parties hereto, to the extent permitted by
law, irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any action, suit or proceeding arising out of New York or in
the United States District Court for the Southern District of New York and
hereby further irrevocably waives any claim that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 5.03. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto, except that, Pioneer Omega may not
assign or otherwise transfer all or any part of their respective rights and
obligations under this Agreement without the prior written consent of IFC except
as provided in Section 2.01, and IFC may not assign or otherwise transfer all or
any part of its rights or obligations under this Agreement without the prior
written consent of Pioneer Omega.
Section 5.04. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto, acting through their duly
authorized representatives, have caused this Agreement to be signed in their
respective names as of the date first above written.
PIONEER OMEGA, INC.
By /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: President
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PIONEER FIRST RUSSIA, INC.
By /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: President
INTERNATIONAL FINANCE CORPORATION
By /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Division Manager
