Exhibit 4.10
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.
23 June 2020
YANDEX N.V.
SBERBANK OF RUSSIA
“DIGITAL ASSETS” LIMITED
YANDEX.MARKET B.V.
“PS YANDEX MONEY” LLC
“YANDEX.MONEY” NBCO LLC
YANDEX.MARKET LLC
YANDEX LLC
STICHTING YANDEX.MARKET EQUITY INCENTIVE
EDADEAL PROMO LLC
YANDEX.DRIVE LLC
YANDEX.OFD LLC
YANDEX.CLOUD LLC
YANDEX.HEALTH CLINIC LLC
YANDEX.CLASSIFIEDS LLC
YANDEX.MARKET LAB LLC
YANDEX E-COMMERCE LIMITED
CENTER OF LOYALTY PROGRAMS JSC
FRAMEWORK AGREEMENT
Contents
Page I
Exhibits
[***]
Page II
THIS FRAMEWORK AGREEMENT (this “Agreement”) is made on 23 June 2020
| (2) | SBERBANK OF RUSSIA, a public joint stock company incorporated under the laws of the Russian Federation whose registered office is at 19 Vavilova St., 117997 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1027700132195 (“Sberbank”); |
| (3) | “Digital assets” Limited, a limited liability company incorporated under the laws of the Russian Federation whose registered office is at 19 Vavilova St., 117997 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 5157746082160 (“Digital Assets”); |
| (4) | Yandex.Market B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid), having its official seat (statutaire zetel) in Amsterdam, the Netherlands, and its office at Schiphol Boulevard 165, 1118BG Schiphol, the Netherlands, and registered with the Dutch Trade Register of the Chamber of Commerce under number 66115582 (“YM”); |
| (5) | “PS YANDEX.MONEY” LLC (ООО «ПС Яндекс.Деньги»), a limited liability company incorporated under the laws of the Russian Federation whose registered office is at Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1077746365113 (“YD”); |
| (6) | “YANDEX.MONEY” NBCO LLC (ООО НКО «Яндекс.Деньги»), a “non-banking credit organisation” organised under the laws of the Russian Federation whose registered office is at Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1127711000031 (“YD Credit”); |
| (7) | Yandex.Market LLC, a limited liability company incorporated under the laws of the Russian Federation, whose registered office is at Floor 5, Build. 44, 11 Timura Frunze St., 119021 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1167746491395 (“YMLLC”); |
| (8) | YANDEX LLC (OOO «ЯНДЕKC»), a limited liability company incorporated under the laws of the Russian Federation, whose registered office is at 16 Lva |
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| Tolstogo Street, 119021, Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1027700229193 (“YLLC”); |
| (9) | Stichting Yandex.Market Equity Incentive, a foundation incorporated under the laws of the Netherlands, whose registered office is at Schiphol Boulevard 165, 1118 BG Schiphol, the Netherlands, and registered with the trade register of the Chamber of Commerce under number 71530975 (“Stichting”); |
| (10) | EDADEAL PROMO LLC (ООО «Едадил Промо»), a limited liability company incorporated under the laws of the Russian Federation whose registered address is at Room 14, Premise 1, Floor 3, Build. 2, 11 Timura Frunze St., 119021 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 5157746114477 (“Yedadeal”); |
| (11) | YANDEX.DRIVE LLC (ООО «Яндекс.Драйв»), a limited liability company incorporated under the laws of the Russian Federation whose registered address is at Premise 5F17, 75 Sadovnicheskaya Emb., 115035 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 5177746277385 (“YDrive”); |
| (12) | YANDEX.OFD LLC (ООО «Яндекс.ОФД»), a limited liability company incorporated under the laws of the Russian Federation whose registered address is at Build. 44, 11 Timura Frunze St., 119034 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1167746503231 (“YOFD”); |
| (13) | YANDEX.CLOUD LLC (ООО «Яндекс.Облако»), a limited liability company incorporated under the laws of the Russian Federation, whose registered office is at Premise 528, 16 Lva Tolstogo Street, 119021 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1187746678580 (“YCloud”); |
| (14) | YANDEX.HEALTH CLINIC LLC (ООО «Клиника Яндекс.Здоровье»), a limited liability company incorporated under the laws of the Russian Federation, whose registered office is at Premise 9109, 16 Lva Tolstogo Street, 119021 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 5177746308394 (“YHealth”); |
| (15) | YANDEX.CLASSIFIEDS LLC (ООО «Яндекс.Вертикали»), a limited liability company incorporated under the laws of the Russian Federation whose registered address is at Premise 3A06, Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 5157746192742 (“YClassifieds”); |
| (16) | YANDEX.MARKET LAB LLC (ООО «Яндекс.Маркет Лаб»), a limited liability company incorporated under the laws of the Russian Federation whose registered address is at 16 Lva Tolstogo Street, Moscow, 119021, Russia and |
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| registered with the Unified State Register of Legal Entities under number 1167746241222 (“YMLAB”); |
| (17) | YANDEX E-COMMERCE LIMITED, a private company limited by shares incorporated under the laws of Hong Kong, having its official seat in Hong Kong, and its place of business at Level 09, 4 Hing Yip Street, Kwun Tong, Kowloon, Hong Kong, and registered in the Trade Register under number 2737825 (“YE-Commerce”); and |
| (18) | CENTER OF LOYALTY PROGRAMS JSC (АО «Центр Программ Лояльности»), a joint stock company incorporated under the laws of the Russian Federation whose registered address is at Premise No. 505/506, 5 1st Derbenevsky Per., 115114 Moscow, Russia and registered with the Unified State Register of Legal Entities under number 1117746689840 (“CLP”). |
Whereas:
It is agreed as follows:
Definitions
“AA Claim” means a claim by an AA Claimant against an AA Respondent pursuant to any AA Indemnity;
“AA Claim Arbitral Tribunal” has the meaning given in Clause 14.1(a);
| (a) | any member of the YM Group in the case of an AA Claim pursuant to the YM AA Indemnity; |
| (b) | any member of the YNV Group in the case of an AA Claim pursuant to the YNV AA Indemnity; or |
| (c) | any member of the YD Group in the case of an AA Claim pursuant to the YD AA Indemnity; |
| (a) | Sberbank in the case of an AA Claim pursuant to the YM AA Indemnity; |
| (b) | YD in the case of an AA Claim pursuant to the YNV AA Indemnity; or |
| (c) | YNV in the case of an AA Claim pursuant to the YD AA Indemnity; |
| (a) | when such term is used in the YM Tax Covenant, any liability of any member of the YM Group to make or suffer an actual payment of, in respect of or on account of Tax (including payments of or on account of Tax for which any member of the YM Group: (a) is not primarily liable; or (b) has indemnified another person, but in either case only to the extent that such payment reflects the application to any member of the YM Group of the unreasonable tax benefit concept under art.54.1 of the Russian Tax Code) arising in respect of or as a consequence of an Event which occurred in the period from and including 27 April 2018, but on or before Closing, or in respect of or with reference to any Income, Profits or Gains which were earned, accrued or received in the period from and including 27 April 2018, but on or before Closing, with the amount of the Actual Tax Liability being the amount of the actual payment plus the amount of any reasonable and documented costs and expenses suffered or incurred by the YM Group in connection with any such liability; or |
| (b) | when such term is used in the YD Tax Covenant, any liability of any member of the YD Group to make or suffer an actual payment of, in respect of or on account of Tax (including payments of or on account of Tax for which any member of the YD Group: (a) is not primarily liable; or (b) has indemnified another person but in either case only to the extent that such payment reflects the application to any member of the YD Group of the unreasonable tax benefit concept under art.54.1 of the Russian Tax Code) arising in respect of or as a consequence of an Event which occurred on or before Closing or in respect of or with reference to any Income, Profits or Gains which were earned, accrued or received on or before Closing, with the amount of the Actual Tax Liability being the amount of the actual payment plus the amount of any reasonable and documented costs and expenses suffered or incurred by the YD Group in connection with any such liability; |
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“Affiliate” means, in relation to any person, any other person which, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with such person provided that:
| (c) | the Central Bank of the Russian Federation, the government of the Russian Federation, any bodies or subdivisions thereof and any entities Controlled by them (other than through Sberbank) shall not be deemed to be an Affiliate of Sberbank (and vice versa); and |
| (d) | with effect from Closing: |
| (i) | no member of the YM Group shall be deemed to be an Affiliate of any of the Sberbank Parties; and |
| (ii) | no member of the YD Group shall be deemed to be an Affiliate of any of the YNV Parties; |
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“Breaching Party” means a [***], a [***] or a [***], as the context requires;
“Claimant Party” means any AA Claimant with respect to any AA Claim, any General Warranty Claimant with respect to any General Warranty Claim, any Tax Claimant with respect to any Tax Claim, any Title Claimant with respect to any Title Claim, any [***] any Russian Third Party Indemnity Claimant with respect to any Russian Third Party Indemnity Claim and any other claimant Party with respect to any General Claim;
“Company Relief” means:
| (a) | when such term is used with respect to the YM Tax Covenant, any Relief of any member of the YM Group to the extent that the same arises as a consequence of |
| or by reference to an Event occurring after Closing or in respect of a period commencing after Closing; or |
| (b) | when such term is used with respect to the YD Tax Covenant, any Relief of any member of the YD Group to the extent that the same arises as a consequence of or by reference to an Event occurring after Closing or in respect of a period commencing after Closing; |
“Confidential Information” has the meaning given in Clause 18.1;
“[***]” means [***] or a [***], as the context requires;
“Connected Persons” means, in relation to a Party, any of its Affiliates and such Party’s and such Affiliate’s respective former and current directors, officers, employees, agents, consultants and legal and beneficial shareholders (whether direct or indirect);
| (a) | the ownership or control (directly or indirectly) of more than 50 per cent. of the voting share capital of such entity; |
| (b) | the right, power or ability, whether exercised or held directly or indirectly (excluding through any unexercised call options, warrants or similar instruments, except for any unexercised call options, warrants or similar instruments that grant such right, power or ability) to direct the casting of, or to exercise voting rights with respect to, more than 50 per cent. of the total votes exercisable at any general meeting (or equivalent) of such entity on all, or substantially all, matters; |
| (c) | the right to receive (directly or indirectly) the majority of the income of such entity on any distribution by it of all of its income or the majority of its assets on a winding up; |
| (d) | the right to appoint or remove the sole executive body or such members of the board of directors (or of any of its committees replicating such entity’s board powers) of such entity as hold a majority of the voting rights at meetings of such board (or committee) on all, or substantially all, matters or the right to appoint or remove any executive director of such entity; or |
| (e) | any right, power or ability, whether exercised or held directly or indirectly (excluding through any unexercised call options, warrants or similar |
| instruments, except for any unexercised call options, warrants or similar instruments that grant such right, power or ability) to exercise a dominant influence over such entity, to issue binding instructions or otherwise to direct or cause the direction of the management, policies or activities of such entity, |
in each case, whether through the ownership or holding of securities or other equity interests, or pursuant to any constitutional document, contract or other document regulating such entity or to which such entity is subject, and whether acting alone or with other persons, and “Controlled” and “Controlling” shall be construed accordingly;
“DA Account” means the bank account opened in the name of Digital Assets with the following details: [***], or such other account as may be notified by Digital Assets to YNV in writing at least [***] prior to the Closing Date;
“[***]” means a claim by a [***] against a [***] pursuant to [***];
| (a) | any member of the [***] pursuant to the [***]; or |
| (b) | any member of the [***]in the case of a [***] pursuant to the [***]; |
“[***]” means the [***] or the [***], as the context requires;
“[***]” means any and all losses, damages, expenses, fines, penalties, liabilities and costs (including reasonable and properly documented legal costs and attorneys’, experts’ and consultants’ fees);
| (a) | Sberbank and/or YD in the case of a [***] pursuant to the [***]; or |
| (b) | YNV and/or YM in the case of a [***] pursuant to the [***]; |
“Deed of Transfer” means the notarial deed of transfer to effect the transfer of the YM Shares from Digital Assets to YNV substantially in the Agreed Form contained in Exhibit 1;
| (a) | when such term is used in the YM Tax Covenant, the use or set-off of a Company Relief (as defined in paragraph (a) of the definition of such term) against any Actual Tax Liability or against any Income, Profits or Gains of any member of the YM Group earned, accrued or received in the period from and including 27 April 2018, but on or before Closing, where, but for such use or set off, YNV would have been entitled to make a claim under the YM Tax Covenant, in which case the amount of the Deemed Tax Liability shall be equal to the amount which would have been payable in the absence of the use or set |
| off of that Company Relief plus any reasonable and documented costs and expenses suffered or incurred by the YM Group in connection with any such use or set off of a Company Relief; or |
| (b) | when such term is used in the YD Tax Covenant, the use or set-off of a Company Relief (as defined in paragraph (b) of the definition of such term) against any Actual Tax Liability or against any Income, Profits or Gains of any member of the YD Group earned, accrued or received on or before Closing where, but for such use or set off, Digital Assets would have been entitled to make a claim under the YD Tax Covenant, in which case the amount of the Deemed Tax Liability shall be equal to the amount which would have been payable in the absence of the use or set off of that Company Relief plus any reasonable and documented costs and expenses suffered or incurred by the YD Group in connection with any such use or set off of a Company Relief; |
“Defaulting Party” has the meaning given in Clause 6.14;
“Dutch Power of Attorney” means the powers of attorney substantially in the Agreed Form contained in Exhibit 2;
“Encumbrance” means:
| (a) | any direct or indirect interest, right or equity of any person (including any right to acquire, option or right of pre-emption or first offer or first refusal); |
| (b) | any claim, mortgage, charge, pledge, lien, assignment, attachment, option, power of sale, easement, encumbrance, debenture, hypothecation, security interest, trust arrangement, title retention or other security agreement, arrangement or third party right; |
| (c) | any restriction on use, voting, transfer or receipt of income; or |
| (d) | any restriction on exercise or any other attribute of ownership, |
in each case, of any kind whatsoever and howsoever created or arising, including any agreement, arrangement or obligation to create or permit any of the foregoing;
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“FAS Approval” means the approval with respect to the YM Transaction issued by the FAS under Federal Law No. 135-FZ “On Protection of Competition”, dated 26 July 2006 (as amended), with such approval being unconditional and free from any obligations (contractual or otherwise) on the YNV Group, or otherwise subject only to conditions or obligations which are satisfactory to YNV in its reasonable opinion, and such approval remaining in full force and effect;
“Finally Determined AA Claim” has the meaning given in Clause 14.1(d);
“Full Title Guarantee” means with the benefit of the implied covenants set out in Part 1 of the Law of Property (Miscellaneous Provisions) Act 1994 when a disposition is expressed to be made with full title guarantee;
“General Claim” means a Claim other than an AA Claim, [***], General Warranty Claim, Tax Claim or Title Claim;
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| (a) | any admission by such person of its inability to pay its debts as they fall due, or the suspension of payment on any of its debts (other than where it is disputing such payment in good faith) or the announcement of its intention to do so; |
| (b) | any step by such person with a view to a composition, moratorium, assignment or similar arrangement with any of its creditors; |
| (c) | any convening by such person, its directors or its members of a meeting for the purpose of considering any resolution for, or any proposal to petition for, or to file documents with the court for, its winding up, administration (whether out of court or otherwise) or dissolution or any such resolution being passed; |
| (d) | any request by the directors or other officers of such person for the appointment of, or the giving of any notice of their intention to appoint, or the taking of any step with a view to appointing, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator (whether out of court or otherwise), viscount or similar officer; |
| (e) | any other voluntary action by such person in furtherance of its liquidation, administration (out of court or otherwise), reorganisation, dissolution, bankruptcy (or the termination of its corporate status); or |
| (f) | with respect to any person, the occurrence of the equivalent of any of the above in any jurisdiction; |
“[***]” has the meaning given in Clause 6.14;
“JPM Correspondent Account” means the bank account with the following details:
[***]
or such other correspondent bank account relating to YNV’s paying bank as may be agreed between YNV and Sberbank prior to the Closing Date;
“KAZ Approval” means approval with respect to the YM Transaction issued by the Committee for the Regulation and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan under the Commercial Code of the
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Republic of Kazakhstan No. 375-V, dated 29 October 2015, with such approval being unconditional and free from any obligations (contractual or otherwise) on the YNV Group, or otherwise subject only to conditions or obligations which are satisfactory to YNV in its reasonable opinion, and such approval remaining in full force and effect;
“Losses” means any losses, damages, claims, costs and expenses (including reasonable and properly documented legal costs and attorneys’, experts’ and consultants’ fees (but excluding any internal costs and expenses), but excluding (a)
| (a) | [***]; |
| (b) | [***]; |
| (c) | [***]; |
| (d) | [***]; or |
| (e) | [***], |
each as determined pursuant to the problem classification set out in clause 1.3 of the SLA;
“Non Defaulting Party” has the meaning given in Clause 6.15;
“[***]” means obligations of YLLC under the YD Ancillary Agreements (other than the [***]) and YNV Group’s obligations set out in Clause 9.22;
| (a) | in respect of YM: Lev Khasis, Andrei Vanin and Gabriel Nouri; and |
| (b) | in respect of YD: Gregory Abovsky, Tigran Khudaverdyan and Vadim Marchuk; |
“[***]” means [***];
“Party” means a party to this Agreement and includes any permitted assignee of such party in accordance with this Agreement and any successor to such party;
“Permitted Agreement” has the meaning given in Clause 14.1(e);
“[***]” has the meaning given in [***];
“Qualifying Claim” has the meaning given in Clause 13.12;
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“[***]” means Limited Liability Company [***];
“Relevant Company” means:
| (a) | YM in the context of the sale and purchase of the YM Shares; and |
| (b) | YD in the context of the sale and purchase of the YD Share; |
| (a) | [***]; and |
| (b) | [***]; |
| (a) | YNV in the context of the sale and purchase of the YM Shares; and |
| (b) | Digital Assets in the context of the sale and purchase of the YD Share; |
“Relevant Seller” means (as the context requires):
| (a) | YNV in the context of the sale and purchase of the YD Share; and |
| (b) | Digital Assets in the context of the sale and purchase of the YM Shares; |
“Relief” means any relief, loss, allowance, credit, exemption, deduction or set off, or any right to repayment of Tax;
“Representatives” has the meaning given in Clause 18.1;
“Resignation Letter” means a letter in the relevant form contained in Schedule 8;
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“Respondent Party” means any AA Respondent with respect to any AA Claim, any General Warranty Respondent with respect to any General Warranty Claim, any Tax Respondent with respect to any Tax Claim, any Title Respondent with respect to any Title Claim, [***], any Russian Third Party Indemnity Respondent with respect to any Russian Third Party Indemnity Claim and any other respondent or recipient Party with respect to any General Claim made by any other Party;
“Russian Notary” means [***];
“Russian SPA” means the sale and purchase agreement to effect the legal transfer of the YD Share from YNV to Digital Assets in the Agreed Form contained in Exhibit 3;
“Russian SPA Signing Date” has the meaning given in Clause 7.1;
“Russian Third Party Indemnity Claim” means a claim by a Russian Third Party Indemnity Claimant against a Russian Third Party Indemnity Respondent pursuant to the Russian Third Party Claim Indemnity;
“Sale Transaction” means the YM Transaction or the YD Transaction (as the case may be);
“Sanctioned Person” means (a) any person that is the target of Sanctions, (b) any person listed in any Sanctions-related list of sanctioned persons maintained by the Sanctions Authorities; (c) any person organised or resident in a Sanctioned Territory; or (d) any person directly or indirectly owned or controlled (as such terms are interpreted in accordance with relevant Sanctions) by any such person or persons; provided however, that none of Sberbank, YD nor their respective Affiliates or subsidiaries shall be considered a “Sanctioned Person” for the purposes of this Agreement as a result of Sanctions to which they are subject that are sectoral in nature as at the date of this Agreement, including under Directive 1 of Executive Order 13662 or Article 5(1) of Council Regulation (EU) 833/2014, as amended;
“Sanctioned Territory” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria);
“Sanctions” means economic or financial sanctions or trade embargoes imposed and administered from time to time by any Sanctions Authority;
“Sanctions Authority” means any of the following: the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or
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the U.S. Department of State, the United Nations Security Council, the European Union, the Netherlands or the United Kingdom;
“[***]” has the meaning given to it in [***];
“[***]” has the meaning given to it in [***];
“[***]” has the meaning given to it in [***];
“[***]” has the meaning given to it in [***];
“Sberbank Group” means the Sberbank Parties and each of their respective Affiliates from time to time, including (with effect from Closing) the YD Group;
“Sberbank Parties” means Sberbank, Digital Assets, CLP, and (with effect from Closing) the YD Group;
“Sberbank Pickup Points Lease Agreements” means (i) Agreement No. 10160944, dated 26 January 2018 in relation to pick-up points lease, as amended by the Additional Agreement No. 1, dated on or around 1 January 2019 and the Additional Agreement No. 2, dated on or around 2 January 2020, between Sberbank and YMLLC; and (ii) Agreement No. 4A, dated 16 December 2019, in relation to pick-up points lease, between Sberbank and YMLLC;
“Service Termination Event” means any intentional or fraudulent unilateral termination by any member of the YNV Group of any YD Ancillary Agreement referred to in Schedule 5 as Exhibits YD 1 to YD 4 (inclusive) where such termination is not in accordance with the terms of the relevant YD Ancillary Agreement, and where such termination has resulted in the non-availability of the Service (as such term is defined in the relevant YD Ancillary Agreement referred to in Schedule 5 as Exhibits YD 1 to YD 4 (inclusive)) required to be provided under such YD Ancillary Agreement, but excluding any termination that results in a [***];
“Services” means, with respect to any person, any internal services, software, platform or other infrastructure operated internally by such person, which is (or are) only accessible by such person, or its Affiliates or its or their respective officers, directors, employees and agents (subject to and in accordance with internal rules) and is (or are) not accessible by external users;
“Shares” means the YM Shares and the YD Share, and “Share” means any part thereof;
“Shortfall Amount” has the meaning given in Clause 14.1(f);
“SLA” means a service level agreement entered into between YLLC and YD Credit on the date of this Agreement, in the Agreed Form contained in Exhibit YD 24;
“Surviving Provisions” means Clauses 1 (Interpretation), 13 (Limitations on Liability), 17 (Announcements), 18 (Confidentiality), 19 (Language), 20 (Notices), 21
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(Assignment), 22 (Costs, Taxes and expenses), 23 (Invalidity), 24 (Third party rights), 27 (Variation and waiver), 28 (Whole agreement), 29 (Governing law) and 30 (Arbitration);
“SWIFT Confirmation” has the meaning given in paragraph 2.2 of Schedule 1;
“Tax Claim” means a claim by a Tax Claimant against a Tax Respondent pursuant to any Tax Covenant;
| (a) | YNV in the case of a Tax Claim against Digital Assets and/or Sberbank pursuant to the YM Tax Covenant; or |
| (b) | Digital Assets in the case of a Tax Claim against YNV pursuant to the YD Tax Covenant; |
| (a) | Sberbank and/or Digital Assets in the case of a Tax Claim made by YNV pursuant to the YM Tax Covenant; or |
| (b) | YNV in the case of a Tax Claim made by Digital Assets pursuant to the YD Tax Covenant; |
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“Title Claim” means a claim by a Title Claimant against a Title Respondent with respect to or for breach of any of the Title Warranties or pursuant to any indemnity contained in Clause 10.4 or 10.6;
“Title Claimant” means:
| (a) | YNV in the case of a Title Claim with respect to or for breach of any of the YM Warranties or pursuant to the indemnity contained in Clause 10.4; or |
| (b) | Digital Assets in the case of a Title Claim with respect to or for breach of any of the YD Warranties or pursuant to the indemnity contained in Clause 10.6; |
| (a) | Digital Assets and/or Sberbank in the case of a Title Claim with respect to or for breach of any of the YM Warranties or pursuant to the indemnity contained in Clause 10.4; or |
| (b) | YNV in the case of a Title Claim with respect to or for breach of any of the YD Warranties or pursuant to the indemnity contained in Clause 10.6; |
“Transaction Documents” means this Agreement, the Deed of Transfer, the Russian SPA, the Termination Agreements, each of the Ancillary Agreements, the SLA and any other documents and agreements referred to herein and therein and any other documents and agreements entered or to be entered into pursuant thereto, in each case, other than the Terminated Agreements;
“Transactions” means the transactions contemplated by this Agreement and the other Transaction Documents, including the Sale Transactions;
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“Warranties” means the General Warranties and the Title Warranties;
“Working Hours” means 8.00 a.m. to 5.00 p.m. local time on a Business Day;
“[***]” has the meaning given in [***];
“YD Ancillary Agreements” means those ancillary agreements referred to in Schedule 5, comprising Exhibits YD 1 to YD 23, with the relevant Exhibit number shown alongside its name in Schedule 5, and the SLA;
“YD Change of Control Event” means [***];
“YD Charter” means the charter of YD from time to time;
“YD Consideration” has the meaning given in Clause 3.1(b);
“YD Data” has the meaning given in Clause 9.15;
“[***]” has the meaning given [***];
“[***]” has the meaning given [***];
“[***]” has the meaning given [***];
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“[***]” has the meaning given [***];
“YD Initial Consideration” has the meaning given in Clause 3.1(b);
“YD Permitted Agreement” has the meaning given in Clause 14.1(g);
“YD SHA” means the joint venture agreement with respect to YD dated 4 July 2013 between YNV, Sberbank and YD, as may have been amended from time to time;
“YD Side Arrangements” has the meaning given in Clause 14.1(h);
“YM Ancillary Agreements” means those ancillary agreements referred to in Schedule 7, comprising Exhibits YM 1 to YM 21, with the relevant Exhibit number shown alongside its name in Schedule 7 (for the avoidance of doubt, such agreements being solely addenda to the existing agreements, but excluding provisions of the existing agreements not amended under such addenda);
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| (a) | monthly, quarterly and annual business, financial and strategy updates and related presentation materials with respect to or concerning the YM Group and its business units; |
| (b) | monthly, quarterly and annual financial models and other financial analysis and related presentation materials with respect to or concerning the YM Group and its business units; |
| (c) | annual and quarterly budget reports and related presentation materials with respect to or concerning the YM Group and its business units; |
| (d) | presentations and other materials with respect to or concerning [***]; and |
| (e) | any other information supplied to [***] pursuant to or in accordance with [***]or which may otherwise have been supplied as a result [***]; |
“YM Consideration” has the meaning given in Clause 3.1(a);
“YM Data” has the meaning given in Schedule 9;
“[***]” has the meaning given in [***];
| (a) | with respect to the YM Ancillary Agreements referred to in Schedule 7 as Exhibits YM 1 to YM 6 (inclusive), all provisions of each such YM Ancillary Agreement; |
| (b) | with respect to the YM Ancillary Agreements referred to in Schedule 7 as Exhibits YM 7 to YM 21 (inclusive), only the obligation of Sberbank set out in Clause 6.18 (and no provision of any such YM Ancillary Agreement itself); and |
| (c) | the obligations of Sberbank set out in Clause 6.19; |
“YM SHA” means the shareholders’ agreement with respect to YM dated 27 April 2018 between YNV, Sberbank, Digital Assets, Stichting and YM, as may have been amended from time to time;
“YM Shareholders’ Resolution” has the meaning given in paragraph 1.4 of Schedule 1;
“YM Side Arrangements” has the meaning given in Clause 14.1(j);
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“YNV Group” means each of the YNV Parties and each of their respective Affiliates from time to time, including (with effect from Closing) the YM Group;
“[***]” has the meaning given in [***];
“[***]” has the meaning given in [***];
“[***]” has the meaning given in [***];
“YNV Indemnified Obligations” means:
| (a) | with respect to the YD Ancillary Agreements referred to in Schedule 5 as Exhibits YD 1 to YD 7, all provisions of such YD Ancillary Agreements; and |
| (b) | with respect to the YD Ancillary Agreements referred to in Schedule 5 as Exhibits YD 8 to YD 23, only the obligations of Sberbank, Digital Assets and the YD Group set out in Clause 6.17 (and no provision of any such YD Ancillary Agreement itself); and |
“YNV Parties” means YNV, YMLLC, YLLC, Stichting, Yedadeal, YDrive, YOFD, YCloud, YHealth, YClassifieds, YMLAB and YE-Commerce and (with effect from Closing) the YM Group.
Interpretation
| (a) | references to “Clauses” and “Schedules” and “Exhibits” are to clauses of, and the schedules and exhibits to, this Agreement; and a reference to a paragraph is (as the case may be) a reference to a paragraph of the Clause or Schedule in which the reference appears; |
| (b) | a reference to “this Agreement” or to any specified provision of this Agreement are to this Agreement or such provision as in force for the time being, as amended, modified, supplemented, varied, assigned or novated, from time to time; |
| (c) | a reference to any other document referred to in this Agreement is a reference to that other document as amended, modified, supplemented, varied, assigned or novated (other than in breach of the provisions of this Agreement) from time to time; |
| (d) | a reference to this Agreement includes the Schedules to it, each of which forms part of this Agreement for all purposes; |
| (e) | a reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established; |
| (f) | a reference to a “person” shall be construed so as to include any individual, firm, body corporate, joint venture, unincorporated association, partnership, trust, government, governmental body, authority or agency (whether or not having separate legal personality), and a reference to a person includes a reference to that person’s successors and assigns; |
| (g) | a reference to “in writing” or “written” shall include any mode of reproducing words in a legible and non-transitory form, but not email; |
| (h) | a reference to any governmental or regulatory body shall be construed so as to include any successor body performing the same functions in all material respects; |
| (i) | any reference to a “day” (including within the phrase “Business Day”) means a period of twenty-four (24) hours running from midnight to midnight in the relevant jurisdiction; |
| (j) | references to “clear Business Days” in relation to the period of a notice means that period excluding the day when the notice is served or deemed to be served and the day for which it is given or on which it is to take effect; |
| (k) | any reference to days, weeks, months and years shall be construed as references to days, weeks, calendar months and years in the Gregorian calendar; |
| (l) | if a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated exclusive of that day; |
| (m) | except as provided for in Clause 20.4, a reference to a time of the day is to Moscow time; |
| (n) | a reference to “US Dollars” or “USD” shall be construed as a reference to the lawful currency for the time being of the United States of America; |
| (o) | a reference to “RUB” shall be construed as a reference to the lawful currency for the time being of the Russian Federation; |
| (p) | a reference to “Euros” or “EUR” means the lawful currency used in member states of the European Union that have adopted a single European currency; |
| (q) | a reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates the English legal term in that jurisdiction and references to any English statute or enactment shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction; |
| (r) | a reference to any law or enactment (including in this Clause 1.2) includes references to: |
| (i) | that law or enactment as re-enacted, amended, extended or applied by or under any other enactment (before or after signature of this Agreement); |
| (ii) | any law or enactment which that law or enactment re-enacts (with or without modification); and |
| (iii) | any subordinate legislation made (before or after signature of this Agreement) under any law or enactment, as re-enacted, amended, extended or applied, as described in Clause 1.2(r)(i) above, or under any law or enactment referred to in Clause 1.2(r)(ii) above, |
provided that, as between the Parties, no such amendment or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any Party, and “law” and “enactment” includes any legislation in any jurisdiction;
| (s) | in construing this Agreement, the so-called “ejusdem generis” rule does not apply and, in particular, any phrase introduced by the terms “include”, “including”, “in particular” or any similar expression shall be construed as illustrative and without limitation and shall not limit the sense of the words preceding such terms; |
| (t) | headings are for ease of reference only and shall not be taken into consideration in the interpretation of this Agreement; and |
| (u) | words importing the singular include the plural and vice versa, and words importing a gender include every gender. |
Currency and exchange rates
| (a) | Digital Assets hereby sells, and Sberbank shall procure that Digital Assets sells, and YNV hereby purchases, the YM Shares; and |
| (b) | YNV hereby agrees to sell, and Digital Assets shall purchase, the YD Share, |
in each case, on the basis that the Relevant Shares shall be sold with Full Title Guarantee and free from all Encumbrances and together with all rights and benefits attaching to them as at Closing, including the right to receive all dividends, distributions or any return of capital declared, made or paid on or after Closing.
| (a) | each of the parties to the YM SHA hereby irrevocably consents to the YM Transaction for the purposes of the YM SHA (including clause 22.1 thereof) and the YM Articles (including article 13, paragraph 2, thereof); and |
| (b) | each of the parties to the YD SHA hereby irrevocably consents to the YD Transaction for the purposes of the YD SHA (including clause 17.1 thereof) and the YD Charter. |
Consideration for the Relevant Shares
| (a) | the YM Shares shall be an amount in RUB equal to RUB [***] (the “YM Consideration”); and |
| (i) | USD [***] (the “YD Initial Consideration”); plus |
| (ii) | interest on the amount of the YD Initial Consideration at the rate of [***]% per annum (pro-rated for any interest period of less than 12 months) during the period from (and including) [***] to (and including) the Closing Date, such interest to be calculated and to accrue on a 12-month basis (each such 12-month interest period to commence on 5 July in one year and to end on 4 July of the immediately following year) and to be compounded at the end of each complete 12-month period, |
(the aggregate of the YD Initial Consideration and such interest being the “YD Consideration”),
with the Consideration being payable in accordance with Clause 3.2.
Set off of Consideration and payment of Consideration Balance
| (b) | in order to simplify the payments of Consideration on the Closing Date, the amounts referred to in Clause 3.2(a) shall be set off against each other on the |
| Closing Date, such that on the Closing Date YNV shall be obliged to pay to the DA Account an amount in RUB equal to [***], such [***] to be paid in accordance with Clause 3.2(c) and paragraph 2.1 of Schedule 1; |
| (d) | in accordance with and by the time stated in paragraph 2.2 of Schedule 1, Sberbank shall procure that YNV and the Dutch Notary receives the SWIFT Confirmation; and |
| (e) | subject to and immediately upon: |
| (i) | an amount in RUB equal to [***] having been debited from the JPM Correspondent Account or having been credited to the DA Account; and |
| (ii) | YNV and the Dutch Notary having received the SWIFT Confirmation; and |
| (iii) | the Dutch Notary having executed the Deed of Transfer on behalf of each of YNV, YM and Digital Assets, |
the obligation of Digital Assets to pay the YD Consideration and the obligation of YNV to pay the YM Consideration, in each case, under this Agreement shall each be irrevocably satisfied and discharged in full, with no further payments of any Consideration (or part thereof) required to be paid by either Party.
| (a) | shall duly execute and enter into, or procure the execution and entry into of, each of the Ancillary Agreements to which it is a party, and shall deliver or procure the delivery of a signed counterpart of this Agreement and each such executed Ancillary Agreement to each of the other Parties (or its nominated Representatives); and |
| (b) | shall procure that there is delivered to each of the other Parties (or its nominated Representatives): |
| (i) | in the case of any Party with a board of directors, to the extent required pursuant to its constitutional documents, a copy of the written resolution |
| of, or a copy of an extract from the minutes of meeting of, the board of directors of such Party authorising the entry into and execution by it of this Agreement and each of the other Transaction Documents to which it is intended to be a party and performance by it of each of the Transactions to which it is intended to be a party; |
| (ii) | in the case of any Party with a management board, to the extent required pursuant to its constitutional documents, a copy of the written resolution of, or a copy of an extract from the minutes of meeting of, the management board of such Party authorising the entry into and execution by it of this Agreement and each of the other Transaction Documents to which it is intended to be a party and performance by it of each of the Transactions to which it is intended to be a party; |
| (iii) | in the case of any Party without a board of directors or to the extent required pursuant to its constitutional documents, a copy of the written resolution of such Party’s shareholder(s) or participant(s) authorising the entry into and execution by it of this Agreement and each of the other Transaction Documents to which it is intended to be a party and performance by it of each of the Transactions to which it is intended to be a party; and |
| (iv) | a copy of a power of attorney pursuant to which this Agreement and any other Transaction Documents to which it is intended to be a party is, has been or will be executed, or other evidence of the authority of any person executing such documents on behalf of such Party, subject also to YNV, YM and Digital Assets executing and delivering the Dutch Power of Attorney pursuant to paragraph 1.5(d) of Schedule 1. |
Conditions to each Party’s obligation to effect Closing
| (a) | the FAS Approval having been obtained; |
| (b) | the KAZ Approval having been obtained; |
| (c) | [***] having paid to [***], reflecting certain [***]; |
| (i) | the entering into or performance of any Transaction Document by any Party, the consummation of any of the Transactions by any Party, the sale or acquisition of any Share or the payment or receipt of any part of the Consideration, in either case, would be unlawful, prohibited, restricted or limited or would result in the violation of any Sanction by, or the likely imposition of any Sanction on or with respect to, any member of the YM Group or the YNV Group; |
| (ii) | the further operations after Closing of any member of the YD Group or any member of the YM Group would be prohibited or materially restricted; or |
| (iii) | any member of the YD Group or any member of the YM Group or any Relevant Purchaser or any of its Affiliates would be required to dispose of or separate any material part of its businesses, assets or operations before any of the Transactions could be consummated. |
Obligations to procure satisfaction
| (a) | co-operate fully with each of the other Parties in relation to the timely preparation, submission and pursuit of all clearance applications and filings required in connection with satisfying the Conditions and the taking of all other steps or actions as may be necessary or desirable to obtain all consents, approvals or actions in order to satisfy or fulfil the Conditions as soon as possible after the date of this Agreement and responding to any request for information promptly and in any event in accordance with any relevant time limit; and |
| (b) | promptly notify the other Parties of any communication (whether written or oral) from any Authority with respect to any of the Conditions or the Transactions, and keep the other Parties reasonably informed of the progress of any notification or filing and providing such assistance as may reasonably be required in relation thereto. |
| (a) | use its reasonable efforts to ensure that each of the Conditions in Clauses 5.1(a), 5.1(b) and 5.1(c) is satisfied as soon as practicable after the date of this Agreement and in any event before the Long Stop Date or (if Clause 5.8 applies) before the Extended Long Stop Date; |
| (b) | be responsible for preparing any applications or filings contemplated or required to be made to satisfy or fulfil the Conditions in Clause 5.1(a) and Clause 5.1(b); |
| (c) | keep Sberbank (or its nominated advisers) reasonably informed in respect of the same, including by providing Sberbank (or its nominated advisers) with draft copies of all submissions and material communications intended to be sent to any Authority or other persons and allowing Sberbank a reasonable opportunity to provide comments on such submissions and communications before they are submitted or sent, and providing Sberbank (or its nominated advisers) with copies of all submissions, written responses and communications in the form submitted or sent to, or received from, any Authority (save that business secrets and other confidential material may be redacted); and |
| (d) | provide to Sberbank (or its nominated advisers) promptly (and in any event within [***]following receipt) a copy of the FAS Approval and the KAZ Approval or other document pertaining to the satisfaction of any Condition in Clause 5.1(a) or Clause 5.1(b) or a copy of any other communication from any relevant Authority pertaining to the FAS Approval or the KAZ Approval that has been applied for, including any approval from any Authority with respect to the YM Transaction that is subject to any conditions, qualifications, obligations or other commitments. |
Waiver
Extension of Long Stop Date
Termination if Conditions not satisfied by Long Stop Date or Extended Long Stop Date
Effect of termination
No other rights to terminate or rescind
Definitions
| (a) | “[***]” means any company, from time to time, (i) in relation to which YNV Group owns no less than [***]% of its issued, voting share capital and (ii) whose business in any prior [***] period [***] (together with any entities Controlled by such company) and where [***] of such company (together with |
| any entities Controlled by such company) generated from [***] during any prior [***]period constitutes more than [***]% of the [***] generated by such company and any entities Controlled by it (taken as a whole) during the same [***] period provided always that any company (including any [***]) which [***] or is [***] in any [***] and any company involved in [***] shall not be deemed to be a [***], except where YNV Group owns no less than [***]% of the issued, voting share capital of such company and it otherwise falls within the foregoing provisions of this definition; |
| (b) | “[***]” means any [***] and any entities Controlled by it, from time to time, and “[***]” means a member of the FinServ Group from time to time; and |
| (c) | “[***]” means: |
| (i) | with respect to the period prior to Closing, a period ending on the earlier of: |
| (A) | the Closing Date (inclusive); |
| (B) | the date on which this Agreement is terminated pursuant to Clause 5.9, 7.4 or 7.9; and |
| (ii) | with effect on and following the Closing Date: |
| (A) | the period ending on [***] with respect to compliance by any [***] and by [***] in relation to the restrictions that apply to them in Clause 6.2 or 6.3 (as the case may be); and |
| (B) | the period ending on [***] with respect to compliance by YNV and Sberbank and their respective Affiliates in relation to the restrictions that apply to them in Clause 6.2 or 6.3 (as the case may be). |
[***]
| (a) | [***] by any member of the [***] in non-compliance with [***] shall be entitled to demand that [***] shall pay to [***]; or |
| (b) | a [***] by any member of the [***] or any of its or their respective Affiliates in non-compliance with Clause 6.3, [***] shall be entitled to demand that [***] shall pay to [***], |
in either case, within [***] of receipt of written demand, the following amount(s):
| (c) | with respect to the [***] in respect of [***], an amount equal to [***]; and |
| (i) | the amount calculated in accordance with the following formula: |
[***]
[***]
[***]
[***]
[***]
[***]
[***]
| (ii) | less any amount already actually paid by the relevant payer pursuant to Clause 6.6(c) to the extent that non-compliance with respect to the first [***]. |
[***]
Separate restrictions
| (a) | such Party shall not, either by itself or through any person (including any of its Representatives) whether acting in concert with it, acting on behalf of it or otherwise, take any step towards, or otherwise support, encourage or assist, any claim in, or any application or petitioning for any judgement, injunction, order or other remedy in, any court of any jurisdiction or any arbitral tribunal: |
| (ii) | that is inconsistent with or otherwise does not comply with, the provisions of [***], |
including (without prejudice to the generality of the foregoing) not invoking or exercising (or attempting to do so) any right it may have under any provision of Article 248.1 or 248.2 of the Arbitration Procedure Code of the Russian Federation (as any such provision may be amended, revised, supplemented or replaced from time to time) to claim that [***] or that [***] or that [***];
| (b) | all Disputes shall always be referred to and finally resolved by confidential arbitration pursuant to Clause 30; and |
| (c) | with respect to [***], such Party shall not, and hereby waives to the fullest extent permitted by any relevant Applicable law, any right it may have to, challenge any part of such arbitration proceedings (including any challenge to the appointment or authority of any arbitrator) or to challenge, annul, set aside or vacate any award on any grounds (including on the grounds that the award is against public policy), in each case, in any court of any jurisdiction, other than [***]. |
Obligation not to terminate certain Ancillary Agreements
| (a) | none of the YD Ancillary Agreements referred to in Schedule 5 as Exhibits YD 8 shall be terminated unilaterally by the relevant member of the YD Group that is a party to it before at least the date falling [***] following the Closing Date; and |
| (b) | none of the YD Ancillary Agreements referred to in Schedule 5 as Exhibits YD 9 to YD 23 (inclusive) shall be terminated unilaterally by the relevant member of the YD Group that is a party to it, other than in accordance with its terms. |
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Right to terminate certain YM Ancillary Agreements
Translations of Ancillary Agreements
Waiver [***]
| (a) | the execution by, and entry into by, [***] of all legally binding documentation [***] occurs no earlier than the [***] following the date of this Agreement; |
| (b) | any public announcement, press release or other public comment [***], shall not be made earlier than the [***] following [***] except that an announcement [***] may be made at any time if required by: |
| (i) | any Applicable Law; or |
| (ii) | the rules and regulations of any securities exchange or any Authority to which the entity making the announcement is subject or submits, wherever situated, |
provided that such entity shall to the extent permitted by Applicable Law have first [***], before making such announcement;
| (c) | [***]; and |
| (d) | prior to Closing, [***] shall not [***] except where [***] not prohibited by the YM SHA. |
| (a) | [***]; and |
| (b) | any breach of any provision of Clauses 6.22(a) to 6.22(d) (inclusive) occurs, in which case, the cessation of the waiver set out in this Clause 6.23 shall be without prejudice to any accrued rights or liabilities of any Party. |
Provision of YM information
| (a) | the pack of update information provided each month to the board of directors of YM shall cease to be provided to the YM directors nominated by Digital Assets with effect from the date of this Agreement; |
| (b) | the financial and operating data provided regularly to the designated operational team within Digital Assets shall cease to be provided to them with effect from the date of this Agreement provided always that monthly management consolidated financial accounts without operational data or forecasts shall continue to be provided until Closing; and |
| (c) | the pack of information provided each quarter to the board of directors of YM shall cease to be provided to the YM directors nominated by Digital Assets with effect from Closing, |
provided that if this Agreement terminates in accordance Clause 5.9, 7.4 or 7.9 then the information referred to in paragraphs (a) and (b) above shall recommence being provided as from the date of such termination.
Intellectual property comprising components of [***]
Execution of the Waiver Letter and the Russian SPA
| (a) | YNV, Sberbank and YD shall duly execute the Waiver Letter in the presence of the Russian Notary; |
| (c) | YNV and Digital Assets shall procure that the Russian Notary: |
| (i) | immediately following execution of the Russian SPA on the Russian SPA Signing Date, submits an electronic application to the Russian Federal Tax Service for amendments to be made in the USRLE to reflect the transfer of the YD Share from YNV to Digital Assets; and |
| (ii) | notifies YD of the execution the Russian SPA. |
| (a) | YNV shall deliver to the Russian Notary (with a copy to Digital Assets) such documents as the Russian Notary requires in order to: |
| (i) | establish that YNV has title to the YD Share and that the YD Share was fully paid by YNV; and |
| (ii) | confirm that the person that executes the Waiver Letter and the Russian SPA on behalf of YNV is duly authorised to do so; |
| (b) | Digital Assets shall (and Sberbank shall procure that Digital Assets shall) deliver to the Russian Notary (with a copy to YNV) such documents as the Russian Notary requires in order to confirm that the person that executes the Waiver Letter and the Russian SPA on behalf of Digital Assets is duly authorised to do so; and |
| (c) | YD shall deliver to the Russian Notary (with a copy to YNV and Digital Assets) such documents as the Russian Notary requires in order to confirm that the person that executes the Waiver Letter on behalf of YD is duly authorised to do so. |
Failure to execute Waiver Letter or Russian SPA on Russian SPA Signing Date or failure to obtain USRLE Extract
| (a) | on the Russian SPA Signing Date, YNV fails to execute the Waiver Letter and/or the Russian SPA in accordance with its obligations in Clauses 7.1(a) and 7.1(b), Sberbank shall be entitled by written notice to YNV; |
| (b) | on the Russian SPA Signing Date, Sberbank fails and/or YD fails to execute the Waiver Letter in accordance with its obligations in Clause 7.1(a) and/or Digital Assets fails to execute the Russian SPA in accordance with its obligations in Clause 7.1(b), YNV shall be entitled by written notice to Sberbank; or |
to elect to terminate this Agreement with effect from the date of receipt of such termination notice and, upon such termination, the provisions of Clause 5.10 shall apply, provided that, if termination has occurred in accordance with Clause 7.4(c), within [***] of the date of receipt of such termination notice, each of YNV and Digital Assets shall (and Sberbank shall procure that Digital Assets shall) take, and procure the taking of, all such actions and steps as are necessary in order to unwind, cancel and terminate the YD Transaction and to effect the transfer back to YNV from Digital
Page 42
Assets (and any other person(s) to whom Digital Assets may have transferred the YD Share or any portion of it or any rights, title or interest in it) of the YD Share and any rights, title and interest that Digital Assets (and any transferee(s)) may have with respect to the YD Share, including:
| (d) | the execution by YNV and Digital Assets (and any transferee(s)) in the presence of the Russian Notary of a sale and purchase agreement in substantially similar form to the Russian SPA and the cancellation and withdrawal of the application to the Russian Federal Tax Service for amendments to be made in the USRLE; and |
| (e) | to the extent that a USRLE Extract is received by YNV or Digital Assets after such date of termination which reflects Digital Assets (and any transferee(s)) as being the holder of the YD Share, YNV and Digital Assets shall procure that a further application is made to the Russian Federal Tax Service for amendments to be made in the USRLE to show YNV as being the holder of the YD Share. |
Closing Date determination
| (b) | such earlier Business Day as may be agreed in writing between YNV and Sberbank, |
provided that, on such Business Day, each of the Conditions in Clauses 5.1(d) (Warranties) and 5.1(e) (Applicable Laws) remains satisfied (or, if any such Condition is not satisfied, it has been waived in writing by YNV and Sberbank pursuant to Clause 5.7).
Closing Actions
| (a) | all of the actions set out in Clauses 7.1 and 7.2 have been performed or otherwise complied with by the relevant Parties; and |
| (b) | all of the Closing Actions have been performed or otherwise complied with by the Parties pursuant to Clause 7.6 and Schedule 1. |
Failure to perform Closing Actions or failure of Closing Date to occur
| (b) | any of the YNV Parties has failed to perform any of its Closing Actions pursuant to Clause 7.6 and Schedule 1 on the Closing Date (in circumstances where the Sberbank Parties and each member of the YD Group and YM Group has satisfied or performed its Closing Actions or (in the case of those Closing Actions set out paragraph 2 of Schedule 1 which are required to be performed in the order set out therein) would have been in a position to do so with respect to any subsequent Closing Action had the defaulting YNV Party not failed to have satisfied or performed the relevant preceding Closing Action), then Sberbank may by written notice to YNV, |
elect to either:
| (c) | proceed to Closing to the extent reasonably practicable (without limiting its rights under this Agreement with respect to any such failure); or |
| (a) | Closing does not take place on any deferred Closing Date following an election being made pursuant to Clause 7.8(d) because: |
| (i) | any of the Sberbank Parties or any member of the YD Group has failed to perform any of its Closing Actions pursuant to Clause 7.6 and Schedule 1 on the deferred Closing Date (in circumstances where the YNV Parties and each member of the YM Group has satisfied or performed its Closing Actions or (in the case of those Closing Actions set out paragraph 2 of Schedule 1 which are required to be performed in the order set out therein) would have been in a position to do so with |
| respect to any subsequent Closing Action had the defaulting Sberbank Party or member of the YD Group not failed to have satisfied or performed the relevant preceding Closing Action), then YNV may by written notice to Sberbank; or |
| (ii) | any of the YNV Parties has failed to perform any of its Closing Actions pursuant to Clause 7.6 and Schedule 1 on the deferred Closing Date (in circumstances where the Sberbank Parties and each member of the YD Group and YM Group has satisfied or performed its Closing Actions or (in the case of those Closing Actions set out paragraph 2 of Schedule 1 which are required to be performed in the order set out therein) would have been in a position to do so with respect to any subsequent Closing Action had the defaulting YNV Party not failed to have satisfied or performed the relevant preceding Closing Action), then Sberbank may by written notice to YNV; or |
| (b) | on the Business Day determined in accordance with Clause 7.5(a) or 7.5(b), either or both of the Conditions in Clauses 5.1(d) (Warranties) and 5.1(e) (Applicable Laws) has ceased to be satisfied on or following the Russian SPA Signing Date and such Condition has not been waived in writing by YNV and Sberbank pursuant to Clause 5.7, either YNV or Sberbank may by written notice to the other, |
elect to terminate this Agreement with effect from the date of receipt of such termination notice and, upon such termination, the provisions of Clause 5.10 shall apply, provided that within [***] of the date of such termination, each of YNV and Digital Assets shall (and Sberbank shall procure that Digital Assets shall) take, and procure the taking of, all such actions and steps as are necessary in order to unwind, cancel and terminate the YD Transaction and the YM Transaction (including all steps and actions that have occurred to implement any of the Sale Transactions) and to put each of YNV and Digital Assets in the position they would have been in had the Waiver Letter and the Russian SPA not been executed, had the transfer of the YD Share not been registered with the USRLE and had none of the Closing Actions been performed, including:
| (c) | effecting the transfer to YNV from Digital Assets (and any other person(s) to whom Digital Assets may have transferred the YD Share or any portion of it or any rights, title or interest in it) of the YD Share (together with all rights, title and interest that Digital Assets (and any transferee(s)) may have with respect to the YD Share), including the execution by YNV and Digital Assets (and any transferee(s)) in the presence of the Russian Notary of a sale and purchase agreement in substantially similar form to the Russian SPA and procuring that the Russian Notary submits an electronic application to the Russian Federal Tax Service for amendments to be made in the USRLE to reflect the transfer of the YD Share to YNV; and |
| (d) | if YNV has paid the Consideration Balance to Sberbank in accordance with Clause 3.2(c), Sberbank shall procure that, within [***] of the date of such |
| termination, there is paid to YNV an amount in RUB equal to [***], such payment to made in accordance with Clause 15.1 to the relevant YNV bank account as shall be notified in writing by YNV to Sberbank. |
Undertaking with respect to use of proceeds
Terminated Agreements
| (a) | all provisions in any Terminated Agreement that are expressed in such Terminated Agreement as surviving its termination; |
| (b) | all put and call options or other rights provided for in or contemplated by any Terminated Agreement with respect to any participation interest in YD or any share in the capital of YM; |
| (d) | all [***] with respect to YM regarding all [***] (as such terms are defined in the YM SHA), |
in each case, shall terminate and be of no further force or effect (whether legal, moral or otherwise).
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Employee plans
| (a) | no member of the Sberbank Group shall be liable for any obligations under any YM Plan, whether arising before or after Closing; |
| (b) | no member of the Sberbank Group shall, and no former or current director, officer or employee of any member of the Sberbank Group shall, participate in, benefit from or be entitled to receive any payments under any YM Plan (whether accruing before or after Closing); |
| (c) | no member of the YNV Group shall be liable for any obligations under any YD Plan, whether arising before or after Closing; |
| (d) | no member of the YNV Group shall, and no former or current director, officer or employee of any member of the YNV Group shall, participate in, benefit from or be entitled to receive any payments under any YD Plan (whether accruing before or after Closing); and |
| (e) | each of the Parties agrees that the provisions of Clause 8.4 shall apply with respect to any and all claims of any nature with respect to the YM Plan or the YD Plan (as the case may be). |
Waiver and release of claims
| (ii) | any document, information, notice or agreement entered into, provided or issued (or not entered into, provided or issued) in connection with any of the Terminated Agreements or any of the transactions contemplated thereby; |
| (iii) | any aspect of the management, business or operations of any member of the YM Group or the YD Group arising during or with respect to the period prior to Closing (subject to and without prejudice to any Tax Claim); |
| (iv) | the YM Articles, the YD Charter or any other constitutional documents or rules of procedure of any member of the YM Group or the YD Group; |
| (v) | any YM Plan or YD Plan, or the terms thereof, or any benefits or payments accruing thereunder; or |
| (vi) | the termination, resignation, removal or replacement of any director, officer, employee or manager of any member of the YM Group or the YD Group on, or at any time prior to, Closing (including any Outgoing Director), |
(each such Waived Claim being a “Relevant Claim”);
| (i) | any and all Relevant Claims; and |
| (ii) | any liability of any kind, whether direct or indirect, foreseen or unforeseen, foreseeable or unforeseeable, known or unknown, contingent or actual, present or future, arising anywhere in the world and arising out of or in connection with any Relevant Claims or relating to any facts or matters whatsoever underlying such Relevant Claims (each a “Relevant Liability”); |
| (c) | to the extent that any Relevant Claim or any Relevant Liability exists or may exist, each Waiving Party covenants and undertakes to each Beneficiary that this Agreement shall, and does hereby, constitute full, final and irrevocable settlement of any such Relevant Claim or any Relevant Liability; |
| (d) | each Waiving Party covenants and undertakes to each Beneficiary: |
| (i) | not to (and shall procure that none of its Connected Persons shall) sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any Beneficiary any action, suit, claim, investigation, regulatory proceedings or any other proceeding in any jurisdiction whatsoever arising out of, in connection with or relating to any of the matters released and discharged pursuant to Clause 8.4(b); and |
| (ii) | not to (and shall procure that none of its Connected Persons shall) request, assist or encourage in any way any company or any other person (including any Authority) to take any of the actions described in paragraph (i) above in any jurisdiction whatsoever; and |
| (e) | each Waiving Party covenants, represents, warrants and undertakes to each Beneficiary that neither such Party nor any of its Connected Persons has assigned, transferred or otherwise disposed of, and will not assign, transfer or otherwise dispose of, any interest in any actual or potential Waived Claim of any kind which it had, has or might have against any person who is or may be entitled to bring a counterclaim arising out of, or in any way connected with, or relating to the matters released and discharged pursuant to Clause 8.4(b). |
[***]
| (a) | use, rely upon, process, obtain or have access to (or be entitled to use, rely upon, process, obtain or have access to): |
| (i) | [***]; |
| (ii) | [***]; or |
| (b) | use, rely upon or process (or be entitled to use, rely upon or process) [***], |
(together, “[***]”) unless such use, reliance, processing, obtaining or access of or to [***]:
Page 49
(x) | by the [***]; or |
(y) | by [***] from time to time following Closing, |
(together, the “[***]”).
[***]
| (a) | use, rely upon, process, obtain or have access to (or be entitled to use, rely upon, process, obtain or have access to): |
| (i) | [***] |
| (ii) | [***] or |
| (b) | use, rely upon or process (or be entitled to use, rely upon or process) [***], |
(together, [***]) unless such use, reliance, processing, obtaining or access of or to any [***]:
(x) | by the [***]; or |
(y) | by any member of [***] from time to time following Closing, |
(together, the “[***]”).
Deletion [***]
Use [***]
No use [***]
| (a) | subject to [***] and the provisions of the [***], use or display for any purposes [***] any of the following [***]; |
| (b) | use, state or mention [***] (whether written, electronic or otherwise)), to [***], except where such indication (x) (i) is merely in the context of describing the factual history of the [***], and [***] or (y) (i) is obligatory [***] pursuant to any mandatory provision of Applicable Law and (ii) such indication shall only be made to the minimum extent strictly necessary in order to comply with such Applicable Law and no greater; and |
| (c) | file any new trademark application [***]. |
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[***]
[***]
[***] ATMs
[***]
[***]
[***]
General Warranties
| (a) | as at the date of this Agreement; and |
| (b) | as at the Closing Date, by reference to the facts and circumstances then existing and as if any references in the following warranties to the date of this Agreement were references to the Closing Date, |
in each case, that each of the following warranties is true and accurate:
Page 53
| (c) | such Party is validly incorporated, in existence and duly registered under the Applicable Laws of its jurisdiction of incorporation; |
| (d) | such Party has the requisite right, power and authority and (where such Party is a Relevant Seller or Relevant Purchaser, subject to the FAS Approval being obtained) has obtained all other applicable governmental, statutory, regulatory or other consents, licences, authorisations, waivers or exemptions required to empower it to enter into and perform this Agreement, the Transactions and each of the other Transaction Documents to which it is a party; |
| (e) | each of the Transaction Documents to which it is a party constitutes legally valid and binding obligations of such Party, enforceable in accordance with its terms, subject to general principles of equity and applicable bankruptcy, insolvency, reorganisation, moratorium and similar Applicable Laws relating to or affecting creditors’ rights and remedies generally; |
| (f) | the entry into, performance and compliance by such Party of or with any Transaction or any term of any of the Transaction Documents does not: |
| (i) | violate or conflict with the provisions of its charter, memorandum and articles of association, certificate of incorporation, by-laws, or equivalent constitutional documents; |
| (ii) | result in a violation or breach by it of any Applicable Laws where such breach would adversely affect its ability to enter into or perform its obligations under this Agreement; |
| (iii) | violate any voting agreement, voting trust agreement or stockholders’ agreement to which it is a party; |
| (iv) | conflict with, result in any breach of or constitute a default under any other agreement, commitment or other arrangement to which it or any of its Affiliates is a party or by which any of its respective assets are bound, except for any such conflicts, breaches or defaults that would not result in a material adverse effect on such Party or any of its Affiliates; or |
| (v) | no Insolvency Event has occurred with respect to such Party. |
Title Warranties with respect to YM Shares
| (a) | as at the date of this Agreement; and |
| (b) | as at the Closing Date, by reference to the facts and circumstances then existing and as if any references in the following warranties to the date of this Agreement were references to the Closing Date, |
in each case, that each of the following warranties (the “YM Title Warranties”) is true and accurate:
| (c) | Digital Assets is the sole legal and beneficial owner of all of the YM Shares; |
| (d) | the YM Shares comprise all of the shares in the capital of YM that are owned or held by, or on behalf of, Digital Assets, Sberbank or any of their respective Affiliates; |
| (e) | no Encumbrances over or affecting the YM Shares have been created or have come into existence since the issuance of the YM Shares to Digital Assets and no person has claimed to be entitled to an Encumbrance in relation to any of the YM Shares; |
| (f) | Digital Assets is entitled to transfer or procure the transfer of the full legal and beneficial ownership of the YM Shares to YNV on the terms set out in this Agreement; and |
| (g) | there are no trusts or other agreements or understandings to which Digital Assets, Sberbank or any of its Affiliates is a party, or to which Digital Assets, Sberbank or any of its Affiliates is subject, with respect to the exercise of votes attaching to any of the YM Shares which shall not be terminated on or before Closing. |
Title Warranties with respect to YD Share
| (a) | as at the date of this Agreement; and |
| (b) | as at the Closing Date, by reference to the facts and circumstances then existing and as if any references in the following warranties to the date of this Agreement were references to the Closing Date, |
in each case, that each of the following warranties (the “YD Title Warranties”) is true and accurate:
| (c) | YNV is the sole legal and beneficial owner of the YD Share; |
| (d) | the YD Share comprises all of the participation interest in the charter capital of YD that is owned or held by, or on behalf of, YNV or any of its Affiliates; |
| (e) | there are no Encumbrances over or affecting any part of the YD Share and no person has claimed to be entitled to an Encumbrance in relation to any part of the YD Share; |
| (f) | YNV is entitled to transfer or procure the transfer of the full legal and beneficial ownership of the YD Share to Sberbank on the terms set out in this Agreement; and |
| (g) | there are no trusts or other agreements or understandings to which YNV or any of its Affiliates is a party, or to which YNV or any of its Affiliates is subject, with respect to the exercise of votes attaching to any part of the YD Share which shall not be terminated on or before Closing. |
Separate warranties
| (a) | by reference to any other Warranty; or |
| (b) | by anything in this Agreement or any other Transaction Document. |
Survival
No qualification of Warranties
| (a) | any Actual Tax Liability; and |
| (b) | any Deemed Tax Liability, |
including, in each case, any and all Losses suffered or incurred by YNV in bringing any claim under, or in disputing, defending, settling, investigating or providing
Page 57
evidence in connection with establishing its right to be indemnified pursuant to this Clause 11.1 (the “YM Tax Covenant”).
YD Tax Covenant
| (a) | any Actual Tax Liability; and |
| (b) | any Deemed Tax Liability, |
including, in each case, any and all Losses suffered or incurred by Digital Assets in bringing any claim under, or in disputing, defending, settling, investigating or providing evidence in connection with establishing its right to be indemnified pursuant to this Clause 11.3 (the “YD Tax Covenant”).
YM Ancillary Agreement [***]
| (a) | [***]; |
| (b) | [***]; |
| (c) | [***]; and |
| (d) | [***], |
suffered or incurred at any time after Closing by [***] as a result of [***] having [***], including, in each case, any and [***] (the “[***]”).
YD Ancillary Agreement [***]
| (a) | [***] |
| (b) | [***] |
| (c) | [***] |
suffered or incurred at any time after Closing by [***] as a result of [***], including, in each case, any and all [***] (the “YNV AA Indemnity”).
YD Ancillary Agreement [***]
| (a) | any and all amounts equal to: |
| (i) | [***] |
| (ii) | [***] |
| (iii) | [***] |
suffered or incurred at any time after Closing by any member of the [***]:
| (v) | a [***] having occurred and such [***] with respect to such [***], provided that such [***] has occurred as a result of [***] having committed either: |
| (A) | an intentional [***] to which the relevant [***] relates; or |
| (vi) | any [***] having occurred; or |
| (vii) | a [***] having occurred; |
| (b) | any and all amounts equal to: |
| (i) | [***] |
| (ii) | [***] |
| (iii) | [***], and |
| (iv) | any [***], but only, in the case of [***], to the extent that a [***] has occurred, and such [***] has occurred as a result of [***] having committed [***] set out in either [***] |
suffered or incurred at any time after Closing by any member of the [***] as a result of a [***] having occurred during any calendar month, and such [***] having been cured [***] with respect to such [***], and where at least [***] occurred during the same calendar month prior to such [***] and each [***] was cured [***] with respect to such [***], provided that:
| (v) | each such [***] has occurred as a result of [***] with respect to, [***] to which the relevant [***] relates; and |
| (vi) | [***] with respect to the occurrence of [***] to occur [***] that occurred during the same calendar month; |
| (i) | an [***] to which the relevant [***] relates (provided further that each such [***] relates only to [***]); or |
| (ii) | an [***] relates (provided further that each such [***] relates only to [***]) and [***] failing to [***] with respect to such [***]; |
| (d) | any and [***] suffered or incurred at any time after Closing [***] as a result of a [***] having occurred [***] prior to such [***] and each such prior [***] was cured on or before [***], provided that: |
| (i) | each such [***] to which the relevant [***] relates (provided further that each such [***] relates only to [***] services); and |
| (ii) | [***] to occur during any calendar month and that was cured and not with respect to the first [***] that occurred during the same calendar month; |
| (i) | an [***] set out [***] to which the relevant [***] relates ; or |
| (ii) | an [***] set out in [***] to which the relevant [***] relates [***] its reasonable efforts to cure such [***] in accordance with its obligations [***], |
and provided further that in relation to a [***] with respect to the YD Ancillary Agreement referred to in Schedule 5 as Exhibit YD 5, such [***] relates only to [***] services,
(the [***] (inclusive) being the [***] and
| (f) | any and all amounts equal to [***] suffered or incurred [***], |
including, in each case, any and [***] suffered or incurred [***].
[***]
[***]
Third Party Claim Indemnity
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Time limits
| (a) | in the case of a Claim other than an AA Claim, within [***] of the date on which the Claimant Party becomes aware of the fact, matter or circumstance giving rise to its right to bring a Claim; |
| (c) | in the case of any AA Claim in relation to which Clause 13.1(b) does not apply, within [***] of the date on which any of the [***] of: |
| (i) | in the case of the YD AA Indemnity, any member of the YD Group; |
| (ii) | in the case of the YM AA Indemnity, any member of the YM Group; or |
| (iii) | in the case of the YNV AA Indemnity, any member of the YNV Group, |
in each case, becomes aware (or reasonably ought to have been aware) of the fact, matter or circumstance giving rise to its right to bring an AA Claim,
and, in any event, by no later than:
| (d) | with respect to any General Warranty Claim or Title Claim, the date falling [***] after the Closing Date; |
| (e) | with respect to any Tax Claim, the date falling [***] after the Closing Date, except that if, on that date, a tax audit of any member of the relevant Company Group in respect of a period prior to or straddling Closing has been notified or is ongoing then the time period shall be extended to the date which is [***] following the date on which the final binding decision (which has entered into legal force) is issued by the relevant Tax Authority in relation to such tax audit; |
| (f) | with respect to any AA Claim: |
| (i) | against a particular AA Respondent pursuant to the YD AA Indemnity or the YNV AA Indemnity in relation to any YD Ancillary Agreement |
| (or any obligation of it), the relevant date that is stated in Schedule 5 alongside the name of the AA Respondent or its Affiliate with respect to the relevant YD Ancillary Agreement (or obligation of it); and |
| (ii) | pursuant to the YM AA Indemnity with respect to any YM Ancillary Agreement, the relevant date that is stated in Schedule 7 alongside the name of the relevant YM Ancillary Agreement; |
| (g) | with respect to any AA Claim [***] that relates to a [***] with respect to the [***] in: |
| (i) | Clause 9.22(a), the date falling [***] after the [***] of the Closing Date; and |
| (ii) | Clause 9.22(b), the date falling [***] after the date that falls [***] following the Closing Date; and |
| (h) | with respect to any Russian Third Party Indemnity Claim, the date falling [***] after the date of termination of the relevant YD Ancillary Agreement to which the relevant Russian Third Party Claim relates. |
Maximum aggregate liability threshold
Tax Claim threshold
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AA Claim threshold
| (a) | with respect to any AA Claim pursuant to the YD AA Indemnity in relation to any YD Ancillary Agreement (or obligation of it), shall not exceed the amount in RUB that is [***] alongside the name of the relevant member of the YNV Group that is a party to it; |
| (b) | with respect to any AA Claim by YD against YNV pursuant to the YD AA Indemnity that relates to [***] with respect to YNV’s obligations in: |
| (i) | Clause 9.22(a), the maximum liability of the YNV Group shall not exceed an amount in RUB equal to [***]; and |
| (ii) | Clause 9.22(b), the maximum liability of the YNV Group shall not exceed an amount in RUB equal to [***]; and |
| (c) | in respect of any and all AA Claims, shall not exceed an amount in RUB equal to the [***], provided always that the maximum liability of the YNV Group for all AA Claims in relation to the YD AA Indemnity with respect to all [***] shall not exceed, in aggregate, RUB [***]. |
| (a) | in relation to each of the YD Ancillary Agreements referred to in Schedule 5 as Exhibits YD 1 to YD 6 shall not exceed an amount in RUB equal to RUB [***] (instead of the amount in RUB that is [***] alongside the name of the relevant member of the YNV Group that is a party to such YD Ancillary Agreement); and |
| (b) | in relation to a [***] with respect to YNV’s obligations in Clause 9.22(b), shall not exceed an amount in RUB equal to RUB [***] (instead of the amount in RUB specified in Clause 13.7(b)(ii)). |
| (a) | with respect to any AA Claim pursuant to any YNV AA Indemnity in relation to any YD Ancillary Agreement, shall not exceed the amount in RUB that is [***] alongside Sberbank’s name or the name of the relevant member of the YD Group by reference to such YD Ancillary Agreement (to the extent an |
| individual financial threshold for any such YD Ancillary Agreement is specified in Schedule 5); |
| (b) | with respect to any AA Claim pursuant to the YM AA Indemnity in relation to any YM Ancillary Agreement, shall not exceed the amount in RUB that is stated in Schedule 7 alongside Sberbank’s or its Affiliate’s name by reference to such YM Ancillary Agreement (to the extent an individual financial threshold for any such YM Ancillary Agreement is specified in Schedule 7); and |
| (c) | in respect of any and all AA Claims, shall not exceed an amount in RUB equal to [***], provided always that the maximum liability of: |
| (i) | Sberbank for all AA Claims in relation to the YM AA Indemnity: |
| (A) | with respect to all [***], shall not exceed, in aggregate, [***]; and |
| (ii) | YD for all AA Claims in relation to the YNV AA Indemnity: |
| (A) | with respect to all [***], shall not exceed, in aggregate, [***]. |
Russian Third Party Indemnity Claim threshold
De minimis and basket thresholds
| (a) | the amount in relation to any individual Claim against such Respondent Party exceeds [***] (each such Claim being a “Qualifying Claim”); and |
| (b) | the aggregate amount of all Qualifying Claims against such Respondent Party exceeds [***], in which event the Respondent Party shall be liable for the full amount of all such Qualifying Claims, and not just the excess. |
Contingent liabilities
Remediation and cure period
| (a) | the Respondent Party and each of its Affiliates shall be entitled to take all such actions as are within their power and authority and as they may deem appropriate in order to seek to remedy or rectify the circumstances giving rise to, or that form the basis of, such Claim during the period of [***] following receipt of such notice; |
| (b) | the Respondent Party shall not be liable under such Claim, and the Claimant Party may not recover any amount in respect of such Claim, until the expiry of such [***] period; and |
| (c) | during such [***] period, and without prejudice to its duty to mitigate any loss, the Claimant Party shall (and shall procure that each of its Affiliates shall) provide all information and reasonable assistance to the Respondent Party and its Affiliates with respect to all actions that they may take, or wish to take, pursuant to paragraph (a) above, and the Respondent Party shall reimburse the Claimant Party for any reasonable and documented costs and expenses that the Claimant Party may incur if and to the extent that such Claimant Party agrees to take any action that has been requested in writing by the Respondent Party. |
Excluded losses
| (a) | indirect or consequential loss; or |
| (b) | loss of profit or revenue (whether direct or indirect); or |
| (c) | punitive or exemplary damages (whether direct or indirect). |
No double recovery
Conduct of Third Party Claims
| (b) | Sberbank or YNV (as the case may be, as a Relevant Party) shall: |
| (i) | keep YNV or Sberbank (as the case may be) informed of all material developments in relation to the Third Party Claim; and |
| (ii) | consult with YNV or Sberbank (as the case may be) as to any actions that any Relevant Party or any of its Affiliates intends to take to avoid, resist, dispute, appeal, compromise, mitigate, remedy or defend the Third Party Claim; |
| (c) | no Relevant Party shall (and each Relevant Party shall procure that none of its Affiliates shall) settle, admit liability or make any agreement or compromise in relation to: |
| (i) | any Third Party Claim that would give rise to a Claim other than a Tax Claim; or |
| (ii) | any legal proceedings initiated by a Relevant Party in a court of competent jurisdiction against its applicable Tax Authority with respect to any demand from such Tax Authority in respect of Tax, which would give rise to a Tax Claim, |
in each case, without the prior written approval of YNV or Sberbank (as the case may be, as the notified party pursuant to paragraph (a)) (such approval not to be unreasonably withheld or delayed) to the extent such settlement, admission, agreement or compromise would result in the YNV Group or the Sberbank Group (as the case may be) incurring liability under any Claim; and
| (d) | with respect to any Claim (other than a Tax Claim) that relates to or arises from a Third Party Claim, the YNV Group or the Sberbank Group (as the case may be) shall have no liability with respect to such Claim unless the Third Party Claim is: |
| (i) | subject to a final, conclusive and binding determination by a court or arbitral tribunal of competent jurisdiction which cannot be appealed against or in respect of which the time to appeal has expired; or |
| (ii) | subject to a settlement, admission, agreement or compromise in relation to which YNV or Sberbank (as the case may be) has given its prior written approval (unless such approval has been unreasonably withheld or delayed). |
Conduct of Russian Third Party Claims
| (a) | the Relevant Protected Person shall notify the Relevant Indemnifier as soon as reasonably practicable, giving details of the relevant facts and circumstances relating to the Russian Third Party Claim as are known to the Relevant Protected Person and of any new developments with respect to the Russian Third Party Claim; |
| (b) | the Relevant Protected Person shall: |
| (i) | keep the Relevant Indemnifier informed of all material developments in relation to the Russian Third Party Claim; and |
| (ii) | consult with the Relevant Indemnifier as to any actions that the Relevant Protected Person intends to take to avoid, resist, dispute, appeal, compromise, mitigate, remedy or defend the Russian Third Party Claim; |
| (d) | the Relevant Protected Person shall: |
| (i) | take such action as the Relevant Indemnifier may reasonably request to avoid, resist, dispute, appeal, compromise or defend the Russian Third Party Claim; |
| (ii) | provide such information and assistance as the Relevant Indemnifier may reasonably require in connection with the preparation for and conduct of any proceedings and/or negotiations relating to the Russian Third Party Claim; and |
| (iii) | (if the Relevant Indemnifier elects to do so) allow the Relevant Indemnifier to take over the conduct of all proceedings and/or negotiations arising in connection with the Russian Third Party Claim, |
provided always that the Relevant Indemnifier hereby undertakes to indemnify and to keep indemnified on demand the Relevant Protected Person and each of its Affiliates against and from, and covenants to pay to the Relevant Protected Person and each of its Affiliates on demand, any Losses that it or they suffer or incur as a result of any action required to be taken pursuant to paragraphs (i) or (ii) above or the Relevant Indemnifier assuming conduct of the Russian Third Party Claim pursuant to paragraph (iii) above; and
| (e) | with respect to any Russian Third Party Indemnity Claim that relates to or arises from a Russian Third Party Claim, no Relevant Indemnifier shall have liability with respect to such Russian Third Party Indemnity Claim unless the Russian Third Party Claim is: |
| (i) | subject to a final, conclusive and binding determination by a court or arbitral tribunal of competent jurisdiction which cannot be appealed against or in respect of which the time to appeal has expired; or |
| (ii) | subject to a settlement, admission, agreement or compromise in relation to which the Relevant Indemnifier has given its prior written approval pursuant to Clause 13.20(c) (unless such approval has been unreasonably withheld or delayed). |
Recovery from third party in respect of Claims
Voluntary actions and other exclusions
| (a) | any transaction, act (including election), omission, delay or default of the Claimant Party or any of its Affiliates after Closing, except where the same is: |
| (i) | carried out or effected pursuant to a legally binding commitment of the Claimant Party or any of its Affiliates entered into or created on or before Closing; or |
| (ii) | the use of a Company Relief in circumstances giving rise to a Deemed Tax Liability, save to the extent that the use of such Company Relief results in a greater loss to the relevant Company Group than would have resulted had a Company Relief not been used; |
| (b) | a breach by the Claimant Party or any of its Affiliates of this Agreement or any Transaction Document; |
| (c) | a change in Applicable Law made after Closing, any legislation not in force at Closing or any change after Closing of administrative practice or interpretation of Applicable Law; or |
| (d) | a change in the accounting policies or practices of the Claimant Party or any of its Affiliates introduced or having effect after Closing. |
Loss of employees or consultants
[***]
| (a) | the term “knowingly” when used in any [***] means where the relevant use, reliance, processing, obtaining, access, transfer or disclosure is within the actual knowledge of the CEO, the COO, the CFO, the head of legal or the CTO/IT director of the relevant member of [***]; and |
| (b) | no member of the [***] shall have any liability for, or under the [***] in respect of, any breach of [***] and that no member of the [***] shall have any liability for, or under the [***] in respect of, any breach of [***], in either case, where such breach has arisen as a result of a deliberate action or a deliberate omission by any employee of, or consultant to, any member of the [***] and where such action or omission by such [***] would constitute a material breach [***], provided that [***] shall use its best efforts to take all such steps and actions that are legally within its power and authority to stop or cease the relevant use, reliance, processing, obtaining, access, transfer or disclosure that resulted in the relevant breach. |
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Mitigation
General
| (b) | “Actual Determined Amount” means, in respect of a Finally Determined AA Claim, the total amount (including any costs) in RUB which: |
| (i) | in the case of Clause 14.1(d)(i), the relevant AA Respondent is ordered by the AA Claim Arbitral Tribunal to pay to the relevant AA Claimant pursuant to the award of the AA Claim Arbitral Tribunal; or |
| (ii) | in the case of Clause 14.1(d)(ii), the relevant AA Respondent has agreed to pay to the relevant AA Claimant or which the AA Respondent is required to pay pursuant to any settlement agreement, |
provided always that such amount fully reflects the provisions of Clause 13.8 or 13.10 (as the case may be) and the reduction in the financial threshold limitations specified in such Clauses;
| (c) | “Assumed Amount” means, in respect of a Finally Determined AA Claim, the total amount (including any costs) in RUB which: |
| (i) | in the case of Clause 14.1(d)(i), the relevant AA Respondent would have been ordered by the AA Claim Arbitral Tribunal to pay to the relevant AA Claimant if the provisions of Clause 13.8 or 13.10 (as the case may be) (and the reduction in the financial threshold limitations specified in such Clauses) had not applied, such assumed total amount to be |
| expressly specified in the award (or its reasoning) of the AA Claim Arbitral Tribunal pursuant to a request that the AA Claimant shall be required to make in accordance with Clause 14.4(e)(i); or |
| (ii) | in the case of Clause 14.1(d)(ii), the relevant AA Respondent would have agreed to pay to the relevant AA Claimant if the provisions of Clause 13.8 or 13.10 (as the case may be) (and the reduction in the financial threshold limitations specified in such Clauses) had not applied, such total amount to be expressly specified and agreed to in writing between the relevant AA Claimant and AA Respondent, in accordance with Clause 14.4(e)(ii), |
provided always that (i) such assumed total amount shall always fully reflect all other limitations on liability contained in the Transaction Documents and that only the reductions in the financial threshold limitations specified in Clause 13.8 or 13.10 (as the case may be) shall be ignored for the purpose of determining this assumed total amount; and (ii) no AA Respondent shall be obliged to pay the Assumed Amount;
| (d) | “Finally Determined AA Claim” means an AA Claim where: |
| (ii) | such AA Claim has been agreed in writing by the AA Respondent, or is the subject of a settlement agreement entered into between the relevant AA Claimant and AA Respondent; |
| (e) | “Permitted Agreement” means the YD Permitted Agreement or the YM Permitted Agreement (as applicable); |
| (f) | “Shortfall Amount” means, [***]; |
| (g) | a “YD Permitted Agreement” means a valid, legally binding agreement entered into by only Sberbank and YD: |
| (i) | on or about the occurrence of a YD Change of Control Event, and which comes into effect no earlier than completion of the YD Change of Control Event; |
| (ii) | that is governed by English law; |
| (iii) | that permits disclosure of a copy of it to YNV if Sberbank serves any written notice on YNV pursuant to Clause 14.2; |
| (iv) | where the parties to such agreement have agreed that any dispute, controversy or claim arising out of or in connection with such agreement or the arbitration agreement contained in it, including any question regarding the existence, formation, validity, performance, termination or enforceability of it and including non-contractual disputes or claims, shall always be referred to and finally resolved by confidential arbitration administered by the HKIAC under the HKIAC Rules in force when the relevant notice of arbitration is submitted, but where any such dispute or any arbitration proceedings with respect to such dispute shall not be consolidated or joined with any arbitration proceedings with respect to any AA Claim; |
| (v) | pursuant to which if YD brings an AA Claim pursuant to the YD AA Indemnity against YNV, and a YD Change of Control Event occurs either: |
| (A) | before the service on YNV of the relevant Claim Notice; or |
| (B) | after the service of the relevant Claim Notice on YNV, but before the AA Claim becomes a Finally Determined AA Claim, |
and that AA Claim becomes a Finally Determined AA Claim, and the relevant Actual Determined Amount is less than the Assumed Amount, Sberbank agrees to compensate YD for an amount in RUB equal to [***] (such amount to be compensated being the “YD Compensation Amount”); and
| (vi) | that shall at no time ever constitute a Transaction Document; and |
| (vii) | where neither of the parties to such agreement or any of their Affiliates are parties to any YD Side Arrangements; |
| (h) | “YD Side Arrangements” means [***]; |
| (i) | “YM Permitted Agreement” means a valid, legally binding agreement entered into by only YNV and YM: |
| (i) | on or about the occurrence of a YM Change of Control Event, and which comes into effect no earlier than completion of the YM Change of Control Event; |
| (ii) | that is governed by English law; |
| (iii) | that permits disclosure of a copy of it to Sberbank if YNV serves any written notice on Sberbank pursuant to Clause 14.3; |
| (iv) | where the parties to such agreement have agreed that any dispute, controversy or claim arising out of or in connection with such agreement or the arbitration agreement contained in it, including any question |
| regarding the existence, formation, validity, performance, termination or enforceability of it and including non-contractual disputes or claims, shall always be referred to and finally resolved by confidential arbitration administered by the HKIAC under the HKIAC Rules in force when the relevant notice of arbitration is submitted, but where any such dispute or any arbitration proceedings with respect to such dispute shall not be consolidated or joined with any arbitration proceedings with respect to any AA Claim; |
| (v) | pursuant to which if YM brings an AA Claim pursuant to the YM AA Indemnity against Sberbank, and a YM Change of Control Event occurs either: |
| (A) | before the service on Sberbank of the relevant Claim Notice; or |
| (B) | after the service of the relevant Claim Notice on Sberbank, but before the AA Claim becomes a Finally Determined AA Claim, |
and that AA Claim becomes a Finally Determined AA Claim, and the relevant Actual Determined Amount is less than the Assumed Amount, YNV agrees to compensate YM for an amount in RUB equal to or less than (but in no event more than) [***] (such amount to be compensated being the “YM Compensation Amount”);
| (vi) | that shall at no time ever constitute a Transaction Document; and |
| (vii) | where neither of the parties to such agreement or any of their Affiliates are parties to any YM Side Arrangements; and |
| (j) | “YM Side Arrangements” means [***]. |
YD AA Indemnity compensation
| (a) | an AA Claim is made by any member of the YD Group pursuant to the YD AA Indemnity in accordance with this Agreement; |
| (b) | a YD Change of Control Event occurs either: |
| (i) | before the service on YNV of the relevant Claim Notice; or |
| (ii) | after the service of the relevant Claim Notice on YNV, but before the AA Claim becomes a Finally Determined AA Claim; |
| (c) | a YD Permitted Agreement has been entered into (and, for the avoidance of doubt, Sberbank has no obligation to enter into any YD Permitted Agreement); |
| (d) | such AA Claim becomes a Finally Determined AA Claim; |
| (e) | the relevant AA Claimant receives from YNV an amount equal to the Actual Determined Amount with respect to the Finally Determined AA Claim; and |
| (f) | if a Shortfall Amount with respect to the Finally Determined AA Claim exists, on or after the date of payment by YNV of the Actual Determined Amount: |
| (i) | YD serves written notice on Sberbank pursuant to the YD Permitted Agreement requiring Sberbank to pay an amount up to or equal to the YD Compensation Amount; and |
| (ii) | YD actually receives from Sberbank the full amount of the YD Compensation Amount, |
Sberbank shall be entitled to serve written notice on YNV requiring YNV to pay an amount equal to [***] provided always that:
| (g) | the maximum liability of YNV under this Clause 14.2 shall not exceed [***]; |
| (h) | Sberbank shall be entitled to make only one demand and serve one notice under the provisions of this Clause 14.2 per AA Claim; |
| (i) | in order to be valid, any written notice from Sberbank shall be required: |
| (i) | to contain a confirmation and warranty to YNV that as at the date of such notice: |
| (A) | a Shortfall Amount exists with respect to the Finally Determined AA Claim; |
| (B) | YD has served written notice on Sberbank pursuant to the YD Permitted Agreement requiring Sberbank to pay an amount equal to the YD Compensation Amount; |
| (C) | Sberbank has paid to YD an amount equal to (but no less than) the YD Compensation Amount; |
| (D) | the YD Permitted Agreement is in full force and effect, and is valid, binding and enforceable in accordance with its terms; and |
| (E) | no YD Side Arrangements exist or are in place, and there is no agreement to enter into any YD Side Arrangements; and |
| (ii) | to be accompanied by: |
| (A) | a certified complete copy of the YD Permitted Agreement; and |
| (B) | a written statement duly executed on behalf of YD that confirms and warrants that: |
| (I) | a Shortfall Amount exists with respect to the Finally Determined AA Claim brought by YD; |
| (II) | YD has served written notice on Sberbank pursuant to the YD Permitted Agreement requiring Sberbank to pay an amount equal to the YD Compensation Amount; |
| (III) | YD has received an amount equal to (but no less than) the YD Compensation Amount; and |
| (IV) | no YD Side Arrangements exist or are in place, and there is no agreement to enter into any YD Side Arrangements; and |
| (j) | YNV shall have no liability under this Clause 14.2 (and Sberbank shall not be entitled to demand any amount from YNV under this Clause 14.2) if: |
| (i) | the relevant AA Claim pursuant to the YD AA Indemnity is not a Finally Determined AA Claim; |
| (ii) | Sberbank has not actually paid, and YD has not actually received, the full amount of the YD Compensation Payment; |
| (iii) | any YD Side Arrangements exist or are in place at the relevant time; |
| (iv) | Clause 14.4 or 14.5 fails to be complied with or is otherwise breached by any of the Sberbank Parties or any member of the YD Group; |
| (v) | a YD Change of Control Event no longer exists; or |
| (vi) | any member of the Sberbank Group or any member of the YD Group or any of its Affiliates (including any person(s) (or any of its Affiliates) that, together or individually, may acquire Control of the YD Group as a result of a YD Change of Control Event) [***]. |
YM AA Indemnity compensation
| (a) | an AA Claim is made by any member of the YM Group pursuant to the YM AA Indemnity in accordance with this Agreement; |
| (b) | a YM Change of Control Event occurs either: |
| (i) | before the service on Sberbank of the relevant Claim Notice; or |
| (ii) | after the service of the relevant Claim Notice on Sberbank, but before the AA Claim becomes a Finally Determined AA Claim; |
| (c) | a YM Permitted Agreement has been entered into (and, for the avoidance of doubt, YNV has no obligation to enter into any YM Permitted Agreement); |
| (d) | such AA Claim becomes a Finally Determined AA Claim; |
| (e) | the relevant AA Claimant receives from Sberbank an amount equal to the Actual Determined Amount with respect to the Finally Determined AA Claim; and |
| (f) | if a Shortfall Amount with respect to the Finally Determined AA Claim exists, on or after the date of payment by Sberbank of the Actual Determined Amount: |
| (i) | YM serves written notice on YNV pursuant to the YM Permitted Agreement requiring YNV to pay an amount up to or equal to the YM Compensation Amount; and |
| (ii) | YM actually receives from YNV the full amount of the YM Compensation Amount, |
YNV shall be entitled to serve written notice on Sberbank requiring Sberbank to pay to YNV an amount [***] provided always that:
| (g) | the maximum liability of Sberbank under this Clause 14.3 shall not exceed [***]; |
| (h) | YNV shall be entitled to make only one demand and serve one notice under the provisions of this Clause 14.3 per AA Claim; |
| (i) | in order to be valid, any written notice from YNV shall be required: |
| (i) | to contain a confirmation and warranty to Sberbank that as at the date of such notice: |
| (A) | a Shortfall Amount exists with respect to the Finally Determined AA Claim; |
| (B) | YM has served written notice on YNV pursuant to the YM Permitted Agreement requiring YNV to pay an amount equal to the YM Compensation Amount; |
| (C) | YNV has paid to YM an amount equal to (but no less than) the YM Compensation Amount; |
| (D) | the YM Permitted Agreement is in full force and effect, and is valid, binding and enforceable in accordance with its terms; and |
| (E) | no YM Side Arrangements exist or are in place, and there is no agreement to enter into any YM Side Arrangements; and |
| (ii) | to be accompanied by: |
| (A) | a certified complete copy of the YM Permitted Agreement; ad |
| (B) | a written statement duly executed on behalf of YM that confirms and warrants that: |
| (I) | a Shortfall Amount exists with respect to the Finally Determined AA Claim brought by YM; |
| (II) | YM has served written notice on YNV pursuant to the YM Permitted Agreement requiring YNV to pay an amount equal to the YM Compensation Amount; |
| (III) | YM has received an amount equal to (but no less than) the YM Compensation Amount; and |
| (IV) | no YM Side Arrangements exist or are in place, and there is no agreement to enter into any YM Side Arrangements; and |
| (j) | Sberbank shall have no liability under this Clause 14.3 (and YNV shall not be entitled to demand any amount from Sberbank under this Clause 14.3) if: |
| (i) | the relevant AA Claim pursuant to the YM AA Indemnity is not a Finally Determined AA Claim; |
| (ii) | YNV has not actually paid, and YM has not actually received, the full amount of the YM Compensation Payment; |
| (iii) | any YM Side Arrangements exist or are in place at the relevant time; |
| (iv) | Clause 14.4 or 14.6 fails to be complied with or is otherwise breached by any of the YNV Parties or any member of the YM Group; |
| (v) | a YM Change of Control Event no longer exists; or |
| (vi) | any member of the YNV Group or any member of the YM Group or any of its Affiliates (including any person(s) (or any of its Affiliates) that, together or individually, may acquire Control of the YM Group as a result of a YM Change of Control Event) [***]. |
Undertakings from AA Claimants
| (a) | before the service on the relevant AA Respondent of the relevant Claim Notice; or |
| (b) | after the service of the relevant Claim Notice on the relevant AA Respondent, but before the AA Claim becomes a Finally Determined AA Claim, |
each AA Claimant hereby undertakes, agrees and acknowledges that:
| (c) | the relevant AA Respondent shall have no liability to the AA Claimant under the AA Claim unless and until the AA Claim becomes a Finally Determined AA Claim; |
| (d) | the provisions of Clause 13.8 or 13.10 (as the case may be) shall always apply with respect to determining the amount of the Actual Determined Amount; |
| (e) | if the AA Claim becomes a Finally Determined AA Claim, the Assumed Amount shall always be required to be determined, such that: |
| (i) | where Clause 14.1(d)(i) applies: |
| (A) | the award (or its reasoning) of the AA Claim Arbitral Tribunal shall be required to expressly state the Assumed Amount; and |
| (B) | the AA Claimant shall be obliged to specifically request the AA Claim Arbitral Tribunal to state the Assumed Amount in its award (or its reasoning); or |
| (ii) | where Clause 14.1(d)(ii) applies, the Assumed Amount must be expressly specified and agreed to in writing between the relevant AA Claimant and AA Respondent, |
in each case, for the purposes of applying and performing this Clause 14, but without the AA Respondent have any obligation to pay such Assumed Amount; and
| (f) | no claim against Sberbank (in the case of a YD Permitted Agreement) or YNV (in the case of a YM Permitted Agreement) shall be made pursuant to any Permitted Agreement until after the time at which the AA Respondent has paid the Actual Determined Amount. |
Undertakings from Sberbank and YD
| (a) | each AA Claim under the YD AA Indemnity, and all legal and arbitration proceedings relating thereto, shall always be separate to, and shall never be consolidated with, any claim or dispute under any YD Permitted Agreement or any claim or dispute with respect to any YD Change of Control Event, whether involving any member of the Sberbank Group, any member of the YD Group or any of its Affiliates (including any person(s) (or any of its Affiliates) that, |
| together or individually, may acquire Control of the YD Group as a result of a YD Change of Control Event) (each a “YD Dispute”); |
| (b) | no member of the Sberbank Group shall be joined in any arbitration or legal proceedings that are initiated or pursued against YNV with respect to any AA Claim under the YD AA Indemnity; |
| (c) | no actual or proposed arbitration or legal proceedings with respect to any YD Dispute may be consolidated with arbitration or legal proceedings that are initiated or pursued against YNV with respect to any AA Claim under the YD AA Indemnity; and |
| (d) | it shall take no steps and make no application to any Authority (including to any AA Claim Arbitral Tribunal or any other court or arbitral tribunal) and shall procure that none of its Affiliates shall take any steps or make any such application, and shall not permit any other person (including any of its Affiliates) to take any steps on its behalf, in each case, to seek any of the foregoing. |
Undertakings from YNV and YM
| (a) | each AA Claim under the YM AA Indemnity, and all legal and arbitration proceedings relating thereto, shall always be separate to, and shall never be consolidated with, any claim or dispute under any YM Permitted Agreement or any claim or dispute with respect to any YM Change of Control Event, whether involving any member of the YNV Group, any member of the YM Group or any of its Affiliates (including any person(s) (or any of its Affiliates) that, together or individually, may acquire Control of the YM Group as a result of a YM Change of Control Event) (each a “YM Dispute”); |
| (b) | no member of the YNV Group shall be joined in any arbitration or legal proceedings that are initiated or pursued against Sberbank with respect to any AA Claim under the YM AA Indemnity; |
| (c) | no actual or proposed arbitration or legal proceedings with respect to any YM Dispute may be consolidated with arbitration or legal proceedings that are initiated or pursued against Sberbank with respect to any AA Claim under the YM AA Indemnity; and |
| (d) | it shall take no steps and make no application to any Authority (including to any AA Claim Arbitral Tribunal or any other court or arbitral tribunal) and shall procure that none of its Affiliates shall take any steps or make any such application, and shall not permit any other person (including any of its Affiliates) to take any steps on its behalf, in each case, to seek any of the foregoing. |
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Method of payment by any Party to YNV Group
Method of payment by any Party to Sberbank Group
Each of the Parties agrees to perform (or procure the performance of) all acts and things and execute and deliver (or procure the execution and delivery of) such further documents as may be required by Applicable Law or as may be reasonably necessary or reasonably requested by any other Party (including the execution of all deeds and documents, procuring the convening of all meetings, the giving of all necessary waivers and consents and the passing of all resolutions and otherwise exercising all powers and rights available to it): (a) to vest, perfect or confirm ownership (of record or otherwise) in each Relevant Purchaser of its right, title or interest in, to or under any or all of the Relevant Shares; and (b) to implement and give effect to this Agreement for the purpose
Page 82
of vesting in and securing to each Party the full benefit of this Agreement and consummating each of the Transactions.
Permitted announcements
| (a) | any Applicable Law; or |
| (b) | the rules and regulations of any securities exchange or any Authority to which that Party is subject or submits, wherever situated, |
Provided that it shall to the extent permitted by Applicable Law have first: (i) given notice to the other Parties of its intention to make such an announcement and (ii) taken all such steps as may be reasonable and practicable in the circumstances to agree the contents of such announcement with the other Parties, before making such announcement.
Confidentiality obligation
| (a) | “Confidential Information” means all information: |
| (i) | which results from negotiating or entering into any of the Transaction Documents or exercising its rights or performing its obligations under any of the Transaction Documents; |
| (ii) | which relates to any of the Transactions, the existence, contents or any provision of any of the Transaction Documents or any agreement, arrangement or transaction entered into pursuant to any of the Transaction Documents; |
| (iii) | which relates to the existence, contents or any provision of any of the Terminated Agreements or any agreement, arrangement or transaction entered into pursuant to any of the Terminated Agreements; |
| (iv) | which, in the case of any Party, it has or acquires in relation to any other Party or its business, assets or affairs, including information received under or pursuant to any of the Terminated Agreements; or |
| (v) | which comprises the YM Confidential Data; and |
| (a) | maintain all Confidential Information in confidence; |
| (b) | not disclose, copy, reproduce or distribute any Confidential Information to any person except as this Clause 18 permits or as the other Parties approve in writing; and |
| (c) | (with respect to any Confidential Information that does not relate to itself or its Affiliates) not use Confidential Information for its own business purposes. |
Permitted disclosure
| (a) | subject to the provisions of Clause 18.5, if and to the extent required by Applicable Laws or for the purpose of any judicial or arbitral proceedings; |
| (c) | to any Authority for the purpose of making any post-Closing filings with respect to any of the Transactions as may be required by Applicable Law; |
| (d) | if the relevant Confidential Information is already in the public domain at the date of this Agreement; |
| (e) | if the relevant Confidential Information has come into the public domain after the date of this Agreement otherwise than as a result of disclosure of that Confidential Information in breach of this Clause 18 or in breach of another confidentiality obligation where the relevant disclosing party is or ought reasonably to be aware of such breach; |
| (f) | if the relevant Confidential Information was or has become lawfully in the relevant Party’s possession or the possession of any of its Representatives (in either case as evidenced by written records) and not subject to any obligation of secrecy on its part prior to it being received or held; or |
| (g) | if and to the extent that Party can demonstrate that the information was independently developed by that Party without reference to any Confidential Information. |
| (a) | if any legal proceedings are commenced or action is taken that could reasonably be expected to result in the disclosure of any Confidential Information, immediately notify the other Parties in writing and take all reasonable steps to resist or avoid such proceedings, and keep the other Parties fully and promptly informed of all related matters and developments; |
| (b) | consult (where doing so is reasonably practicable and in accordance with Applicable Laws) with the other Parties first on the proposed form, content, timing, nature and purpose of any disclosure, and give the other Parties an opportunity to discuss the relevant information before any disclosure; and |
| (c) | if it is obliged to disclose any Confidential Information to any other person, disclose only the minimum amount of information which it believes to be consistent with satisfying its obligation, provide a copy of the disclosure to the other Parties, and inform the recipient of the confidential nature of the information and (if applicable) request that the recipient enter into a written confidentiality undertaking or otherwise seek confidential treatment of such information. |
Duration of obligations
Notices to be in writing
Addresses
Page 86
Party and name of individual | Address | Email address and telephone number |
|---|---|---|
YNV | | |
For the attention of: | Schiphol Boulevard 165, 1118BG Schiphol, the Netherlands | [***] |
| | |
For the attention of: [***] | 19 Vavilova St., 117997 Moscow, Russia | [***] |
Digital Assets | | |
For the attention of: [***] | 19 Vavilova St., 117997 Moscow, Russia | [***] |
YM | | |
For the attention of: [***] | Schiphol Boulevard 165, 1118BG Schiphol, the Netherlands | [***] |
| | |
For the attention of: [***] | Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia | [***] |
YD Credit | | |
For the attention of: [***] | Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia | [***] |
YMLLC | | |
For the attention of: [***] | Floor 5, Build. 44, 11 Timura Frunze St., 119021 Moscow, Russia | [***] |
YLLC | | |
For the attention of: | 16 Lva Tolstogo Street, Moscow, 119021, Russia | [***] |
Stichting | | |
For the attention of: | Schiphol Boulevard 165, 1118 BG Schiphol, the Netherlands | [***] |
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Party and name of individual | Address | Email address and telephone number |
|---|---|---|
[***] | ||
Yedadeal | | |
For the attention of: [***] | Room 14, Premise 1, Floor 3, Build. 2, 11 Timura Frunze St., 119021 Moscow, Russia | [***] |
YDrive | | [***] |
For the attention of: [***] | Premise 5F17, 75 Sadovnicheskaya Emb., 115035 Moscow, Russia | [***] |
YOFD | | [***] |
For the attention of: [***] | Build. 44, 11 Timura Frunze St., 119034 Moscow, Russia | [***] |
YCloud | | [***] |
For the attention of: [***] | Premise 528, 16 Lva Tolstogo Street, 119021 Moscow, Russia | [***] |
YHealth | | [***] |
For the attention of: [***] | Premise 9109, 16 Lva Tolstogo Street, 119021 Moscow, Russia | [***] |
YClassifieds | | [***] |
For the attention of: [***] | Premise 3A06, Build. 2, 82 Sadovnicheskaya St., 115035 Moscow, Russia | [***] |
| [***] | |
For the attention of: [***] | 16 Lva Tolstogo st., Moscow, 119021 | [***] |
YE-Commerce | | [***] |
For the attention of: [***] | Sai Yeung Choi Street South, 2A-2H, Ginza Plaza, Floor 20, Office 2002, Mongkok, Hong Kong | [***] |
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Party and name of individual | Address | Email address and telephone number |
|---|---|---|
| [***] | |
For the attention of: [***] | Premise No. 505/506, 5 1st Derbenevsky Per., 115114 Moscow, Russia | [***] |
Deemed time of service
Proof of service
Change of details
| (a) | the date specified in the notice as the date on which the change is to take place; or |
| (b) | if no date is specified or the date specified is less than [***] after the date on which notice is deemed to have been served by courier, the date falling five [***] after notice of any such change is deemed to have been served. |
Costs
Notarisation and registration fees
Transfer Taxes
Set-off, payments and gross up
If at any time any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in whole or in part under any Applicable Law in any jurisdiction, then:
| (a) | such provision shall: |
| (i) | to the extent that it is illegal, void, invalid or unenforceable be given no effect and shall be deemed not to be included in this Agreement; and |
| (ii) | not affect or impair (x) the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or (y) the legality, validity or enforceability under the law of any other jurisdiction of such provision or any other provision of this Agreement; and |
| (b) | the Parties shall use all reasonable endeavours to replace such a provision with a valid and enforceable substitute provision that carries out, as closely as possible, the intentions of the Parties under this Agreement. |
| (a) | each of the Connected Persons of a Party where such Party comprises a Beneficiary shall be entitled to enforce the provisions of Clause 8.4; |
| (b) | each Affiliate of a Non Defaulting Party that is not a Party shall be entitled to enforce the provisions of Clause 6.16; |
| (c) | each member of the YNV Group that is not a Party shall be entitled to enforce the provisions of Clauses 6.17, 6.18 and 6.19; |
| (d) | each member of the YNV Group that is not a Party shall be entitled to enforce the provisions of Clause 9.5; |
| (e) | each member of the Sberbank Group that is not a Party shall be entitled to enforce the provisions of Clause 9.11; |
| (f) | each member of the YM Group that is not a Party shall be entitled to enforce the provisions of Clause 12.1; |
| (g) | each member of the YNV Group that is not a Party shall be entitled to enforce the provisions of Clause 12.2; |
| (h) | each member of the YD Group that is not a Party shall be entitled to enforce the provisions of Clause 12.3; and |
| (i) | each Affiliate of a Relevant Protected Person that is not a Party shall be entitled to enforce the provisions of the indemnity in Clause 13.20(d), |
(each being a “Third Party”).
Nothing in this Agreement and no action taken by the Parties under this Agreement shall constitute a partnership, association or other co-operative entity between any of the Parties or constitute any Party the agent of any other Party for any purpose.
This Agreement may be executed in counterparts, and by the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but the counterparts shall together constitute one and the same instrument.
| (a) | confirms that, in entering into the Transaction Documents, it has agreed not to rely on any representation (including, without limitation, any misrepresentation or any misstatement), warranty, collateral contract, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in the Transaction Documents; |
| (b) | confirms that, notwithstanding anything in the Transaction Documents to the contrary, the only rights or remedies of the Parties in relation to any |
| representation (including without limitation any misrepresentation or any misstatement), warranty, collateral contract, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with any Transaction Document are contained or referred to in the Transaction Documents and no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, and/or in, this Agreement); and |
| (c) | waives all rights and remedies which, but for this Clause 28, might otherwise be available to it in respect of any such representation, warranty, collateral contract, assurance, covenant, indemnity, undertaking or commitment. |
This Agreement, the arbitration agreement contained in it and all matters, disputes or claims (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter shall be governed by, and construed in accordance with, English law.
| (a) | each of the Parties agrees that such Paying Party shall be entitled to recover the amount of such payment from the Non-Paying Party immediately after such payment is made and that in the event that the costs are not recovered prior to the final award, the final award (regardless of the Party in whose favour it is made as regards the Dispute itself) shall include an obligation on the Non-Paying Party to pay such amount to the Paying Party; and |
| (b) | the Non-Paying Party shall hereby be obliged to pay to the Paying Party on demand an amount equal to the sum that the Paying Party has actually paid, together with any costs and expenses of recovery incurred by the Paying Party. |
As Witness this Agreement has been executed by or on behalf of the Parties on the day and year first before written.
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EXECUTED for and on behalf of)
YANDEX N.V. by)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
SBERBANK OF RUSSIA by)
Signed:/s/ Andrey Kartashyan
Name:Andrey Kartashyan
EXECUTED for and on behalf of)
“DIGITAL ASSETS” LIMITED)
Signed:/s/ Yuri Volkov
Name:Yuri Volkov
EXECUTED for and on behalf of)
YANDEX.MARKET B.V.)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
Page 99
EXECUTED for and on behalf of)
“PS YANDEX MONEY” LLC)
Signed:/s/ Ivan Glazachev_____________
Name:Ivan Glazachev________________
EXECUTED for and on behalf of)
NBCO LLC YANDEX.MONEY)
Signed:/s/ Shobanova T.A
Name:Shobanova T.A.
EXECUTED for and on behalf of)
YANDEX.MARKET LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
Page 100
EXECUTED for and on behalf of)
STICHTING )
YANDEX.MARKET EQUITY )
INCENTIVE)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
EDADEAL PROMO LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX.DRIVE LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX.OFD LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
Page 101
EXECUTED for and on behalf of)
YANDEX.CLOUD LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX.HEALTH CLINIC LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX.CLASSIFIEDS LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
YANDEX.MARKET LAB LLC)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
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EXECUTED for and on behalf of)
YANDEX E-COMMERCE)
LIMITED)
Signed:/s/ Alfred Alexander de Cuba
Name:Alfred Alexander de Cuba
EXECUTED for and on behalf of)
CENTER OF LOYALTY )
PROGRAMS JSC)
Signed:/s/ Disarev A.N.
Name:Disarev A.N
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