DRAFT
SHARE PURCHASE AGREEMENT
September 2006
BAYERISCHE HYPO-UND VEREINSBANK AG
and
BANK AUSTRIA CREDITANSTALT AG
relating to the sale and purchase of part of the share capital of
Closed Joint Stock Company International Moscow Bank
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THIS AGREEMENT is made on 12 September 2006
BETWEEN:
(1) BAYERISCHE HYPO-UND VEREINSBANK AKTIENGESELLSCHAFT, a commercial bank
organised and existing under the laws of Germany, with registered number HRB42148, whose head
office is at Kardinal-Faulhaber Strasse 1, 80333 Munich, Germany (the “Seller”); and
(2) BANK AUSTRIA CREDITANSTALT AG, a stock corporation under Austrian law with its
corporate seat in Vienna and its business address in Vordere Zollamtsstrasse 13, 1030 Vienna,
Austria, registered with the Commercial Registry at the Commercial Court of Vienna under number
FN 150714p (the “Buyer”),
each a “Party” and together the “Parties”.
BACKGROUND:
(A) The Seller is entitled to sell 142,736 Common Shares (representing 52.88% of the Common Shares
and 46.84% of the total charter capital as at the date of this Agreement) of
Closed Joint Stock Company International Moscow Bank (the Company or IMB), a commercial
bank established as a closed joint stock company under the laws of the Russian Federation, whose
legal address is at 9 Prechistenskaya Emb, 119034 Moscow, Russian Federation.
(B) The Seller has entered into a conditional sale and purchase agreement with Nordea Bank Finland plc
(Nordea) under which the Seller has agreed to purchase 71,369 Common Shares in the Company
held by Nordea (such conditional sale and purchase agreement as amended from time to time (for the
avoidance of doubt, such amendment only to be made with the consent of the Buyer, not to be
unreasonably withheld or delayed) being the Nordea SPA).
(C) The Seller and Nordea also together have the right to purchase 12,978 Common Shares in the
Company in the proportions stated in the EBRD Put and Call Option Agreement, which Common
Shares in total represent 4.8% of the Common Shares and 4.26% of the total charter capital of the
Company as at the date of this Agreement (the Seller's rights pursuant to the EBRD Put and Call
Option Agreement being the Seller's EBRD Option). Nordea has agreed to transfer its rights under
the EBRD Put and Call Option Agreement to the Seller pursuant to the terms of the Nordea SPA
(Nordea's rights pursuant to the EBRD Put and Call Option Agreement being the Nordea EBRD
Option).
(D) It is currently envisaged that the Seller will enter into a put option agreement with BCEN (the BCEN
Put Option Agreement) in accordance with which BCEN will, inter alia, be entitled at any time in
the 24 months from the date of the BCEN Put Option Agreement to require the Seller to purchase
BCEN's existing shareholding in IMB, comprising 42,859 common shares and 17,391 preference
shares in the capital of IMB and all relevant associated rights (the Current BCEN Shares) together
with a further 22,529 common shares and 9,142 preference shares in the capital of IMB which it is
proposed that BCEN will subscribe for as part of a proposed capital increase and all relevant
associated rights (the BCEN Capital Increase Shares) (the Current BCEN Shares and the BCEN
Capital Increase Shares (to the extent a resolution has been passed for the issue of such BCEN
Capital Increase Shares) together being the BCEN Shares).
(E) The Seller wishes to sell and the Buyer wishes to purchase all of the shares described in Recital A,
together with any Capital Increase Shares issued to the Seller prior to Nordea Completion or the
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serving of the Nordea SPA Termination Notice (as defined below) (the Current Shares) and the
Seller wishes to transfer and the Buyer wishes to accept the transfer to it of the Seller's EBRD
Option, in each case free from any Encumbrance on the terms and conditions set out in this
Agreement (the Current Shares together with the Seller's EBRD Option being the Current
Tranche).
(F) Subject to the Nordea Completion and Completion in respect of the Current Tranche occurring, the
Seller wishes to sell and the Buyer wishes to purchase all of the shares described in Recital B,
including any Capital Increase Shares issued to Nordea prior to Nordea Completion (the Nordea
Shares) and the Seller wishes to transfer and the Buyer wishes to accept the transfer to it of the
Nordea EBRD Option, in each case free from any Encumbrance on the terms and subject to the
conditions set out in this Agreement (the Nordea Shares together with the Nordea EBRD Option
being the Nordea Tranche).
(G) Subject to Completion in respect of the Current Tranche occurring, the Seller wishes to transfer to
the Buyer, and the Buyer wishes to accept the transfer of, the BCEN Put Option Agreement (an
Ancillary Document under this Agreement). In the event that BCEN exercises its rights under the
BCEN Put Option Agreement, and the transfer to the Seller envisaged by such exercise has been
completed prior to transfer of the BCEN Put Option Agreement to the Buyer in accordance with this
Agreement, the Seller wishes to sell and the Buyer wishes to purchase the BCEN Shares free from
any Encumbrance on the terms and subject to the conditions set out in this Agreement (the BCEN
Tranche).
(H) Subject to Completion in respect of the Current Tranche occurring, the Seller wishes to transfer to
the Buyer, and the Buyer wishes to accept the transfer of, the EBRD Put and Call Option Agreement
(an Ancillary Document under this Agreement). In the event that a party to the EBRD Put and Call
Option Agreement exercises its rights under the EBRD Put and Call Option Agreement, and the
transfer to the Seller envisaged by such exercise has been completed prior to transfer of the EBRD
Put and Call Option Agreement to the Buyer in accordance with this Agreement, the Seller wishes to
sell and the Buyer wishes to purchase the EBRD Shares free from any Encumbrance on the terms
and subject to the conditions set out in this Agreement (the EBRD Tranche).
IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement:
"2005 Dividend" means any dividend declared and paid by the Company to the
Seller after the Accounts Date, but before the date of this
Agreement and relating to the period before the Accounts Date;
“Accounts” means the latest audited financial statements of the Company as
of the Accounts Date;
"Accounting Standards" shall have the meaning given in Clause 6.1(b);
“Accounts Date” means 31 December 2005;
“AFMA” means the Austrian Financial Market Authority;
"Ancillary Documents" means each of the IMB Shareholders' Agreement, the EBRD
Put and Call Option Agreement, BCEN Agreement, FMO
Share Retention Agreement, DEG Share Retention Agreement,
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Finnish Fund Share Retention Agreement, EBRD Support
Agreement, Co-operation Agreement, the BCEN Put Option
Agreement and the Nordea SPA (if applicable);
"BCEN" means Banque Commerciale Pour L'Europe du Nord –
Eurobank;
"BCEN Agreement" means the agreement dated 21 April 2005 between BCEN,
Nordea and the Seller in relation to BCEN's shareholding in the
Company (and, if applicable, as subsequently amended and
novated);
"BCEN Capital Increase
Shares"
has the meaning given in Recital D;
"BCEN Put Option
Agreement"
has the meaning given to it in Recital D;
"BCEN Shares" has the meaning given to it in Recital D;
"BCEN Tranche" has the meaning given to it in Recital G;
"BCEN Tranche
Conditions"
means the conditions to the transfer of the BCEN Tranche set
out in Part 4 of Schedule 1;
“Business Day” means any day (other than a Saturday or Sunday) on which
retail banks are generally open for business in Vienna, Austria,
Munich, Germany and Moscow, Russian Federation;
"Business Warranty" shall have the meaning given in Clause 8.1(a)
“Capital Increase
Shares”
means any shares that are issued pursuant to a resolution of the
shareholders of the Company passed prior to Nordea
Completion;
“Capital Increase
Tranche”
means any Capital Increase Shares issued to the Seller after
Nordea Completion or the serving of the Nordea SPA
Termination Notice;
“Capital Increase
Tranche Conditions”
means the conditions to the transfer of the Capital Increase
Tranche set out in Part 3 of Schedule 1;
“CBRF” means the Central Bank of the Russian Federation;
"Common Shares" means the common shares in the capital of the Company having
a registration number 10200001B;
“Completion” means the completion of transfer any of the Current Tranche,
the Nordea Tranche, the BCEN Tranche, the EBRD Tranche
and/or the Capital Increase Tranche (as applicable) in
accordance with this Agreement, pursuant to the provisions of
Clause 5;
“Conditions” means the Current Tranche Conditions, the Nordea Tranche
Conditions, the BCEN Tranche Conditions (where applicable),
the EBRD Tranche Conditions (where applicable) and the
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Capital Increase Tranche Conditions, (where applicable) set out
in Schedule 1;
“Co-operation
Agreement”
means the co-operation agreement between the Seller and
Nordea dated 3 October 2004, as amended by an amendment
agreement dated 21 April 2005;
“Current Shares” shall have the meaning given in Recital E;
“Current Tranche” shall have the meaning given in Recital E;
“Current Tranche
Conditions”
means the conditions to the transfer of the Current Tranche set
out in Part 1 of Schedule 1;
“DEG Share Retention
Agreement”
means the share retention agreement dated 15 September 2004
between the Seller, Nordea and DEG-Deutsche Investitions-und
Entwicklungsgesellschaft mbH (and, if applicable, as
subsequently amended and novated);
“EBRD” means the European Bank for Reconstruction and Development;
“EBRD Option” means the rights and obligations of the Seller and Nordea under
each of the Seller's EBRD Option and the Nordea EBRD
Option;
“EBRD Put and Call
Option Agreement”
means the put and call option agreement between the Seller,
Nordea and EBRD, entered into on 19 April 2000 as amended
on 26 October 2001 and further amended pursuant to an EBRD
put and call option deed of novation to be entered into between
EBRD, Nordea and the Seller, relating to shares in the
Company;
"EBRD Shares" means that portion of EBRD's existing shareholding in IMB that
is the subject of any exercise under the EBRD Put and Call
Option Agreement;
“EBRD Support
Agreement”
means the support agreement dated 19 April 2000 between the
Seller, Nordea and EBRD, (and, if applicable, as subsequently
amended and novated);
"EBRD Tranche" shall have the meaning given in Recital H;
"EBRD Tranche
Conditions"
means the conditions to the transfer of the EBRD Tranche set
out in Part 5 of Schedule 1;
“Employees” means the employees of the Company;
“Encumbrance” means a mortgage, charge, pledge, lien, option, or security
interest of any kind;
“EURIBOR” means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available, the arithmetic mean of
the rates (rounded upwards to four decimal places)
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quoted by such bank as agreed between the Parties, to
leading banks in the European interbank market;
“Existing Financing” shall have the meaning given in Clause 9.1;
“FAS” means the Federal Anti-monopoly Service of the Russian
Federation;
“Finnish Fund Share
Retention Agreement”
means the share retention agreement dated 15 September 2004
between the Seller, Nordea and Finnish Fund for Industrial Co-
operation Limited (and, if applicable, as subsequently amended
and novated);
“FMO Share Retention
Agreement”
means the share retention agreement dated 16 September 2004
between the Seller, Nordea and Nederlandse Financierings-
Maatschappij voor Ontwikkelingslanden N.V (and, if
applicable, as subsequently amended and novated);
“Group Companies” means the Company and its Subsidiaries;
“ICC” shall have the meaning given in clause 23.2;
“ICC Rules” shall have the meaning given in clause 23.2;
“IFRS” means International Financial Reporting Standards comprising
the accounting standards and interpretations issued, adopted
and/or approved by the International Accounting Standards
Board (IASB) as at the date of the auditors’ report to the 2005
Accounts and applied by the Company’s auditors in their audit
of the 2005 Accounts;
“IMB Shareholders'
Agreement”
means the shareholders' agreement dated 21 April 2005 between
the Seller, Nordea, EBRD and BCEN in respect of IMB, as
amended, restated and novated from time to time;
“Loss” shall have the meaning given in Clause 7;
“Long Stop Date” means the later of:
(a) 30 June 2007 or such other date as may be agreed for
Nordea Completion by the parties to the Nordea SPA;
or
(b) such other date as the Parties shall agree to in writing
for satisfaction of the Conditions;
“Nordea” shall have the meaning given to it in Recital B;
“Nordea Completion” means completion of the Nordea SPA;
“Nordea EBRD Option” shall have the meaning given in Recital C;
“Nordea Shares” shall have the meaning given in Recital F;
“Nordea SPA” shall have the meaning given in Recital B;
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“Nordea SPA
Termination Notice”
shall have the meaning given in Clause 4.3;
“Nordea Tranche” shall have the meaning given in Recital F;
“Nordea Tranche
Conditions”
means the conditions to the transfer of the Nordea Tranche set
out in Part 2 of Schedule 2;
“Relevant Claim” shall have the meaning given in clause 8.1(a)
“Screen Rate” means the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant
period displayed at the appropriate page of the Reuters screen.
If the agreed page is replaced or service ceases to be available,
the Parties may agree another page or service displaying the
appropriate rate;
“Seller's EBRD Option” shall have the meaning set out in Recital C;
“Shares” means the Current Shares, the Nordea Shares, the BCEN
Shares, the EBRD Shares and the Capital Increase Shares to be
transferred from the Seller to the Buyer pursuant to this
Agreement;
“Subsidiaries” means all of the following subsidiaries of the Company: ZAO
IMB - Real Estate, OOO "IMB Leasing Company", ZAO
"IMB-Leasing" and Limited Liability Company "B.A. Real
Estate;
“Tax Warranties” shall have the meaning given in Clause 8.1(a);
“Title Warranties” shall have the meaning given in Clause 8.1(a);
“Tranche” means any of the Current Tranche, Nordea Tranche, BCEN
Tranche, the EBRD Tranche or Capital Increase Tranche
1.2 In this Agreement, unless otherwise specified:
(a) headings to clauses and schedules are for convenience only and do not affect the
interpretation of this Agreement;
(b) reference to Clauses, Recitals and Schedules are to clauses, recitals and schedules of this
Agreement; and
(c) a reference to any statute or statutory provision shall be construed as a reference to the same
as it may have been, or may from time to time be, amended, modified or re-enacted.
2. SALE AND PURCHASE
The Seller hereby agrees to sell the Current Tranche, the Nordea Tranche, the BCEN Tranche, the
EBRD Tranche and the Capital Increase Tranche to the Buyer free from all Encumbrances and
together with the benefit of all rights and profits attaching thereto including all rights to dividends
and other distributions declared made or payable thereon in respect of periods commencing on or
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after the Accounts Date (excluding, for the avoidance of doubt, the 2005 Dividend) and the Buyer
hereby agrees to purchase the same on and subject to the terms of this Agreement.
3. CONSIDERATION
3.1 The total consideration shall be calculated on the following basis:
(a) for the sale of the Current Tranche, the consideration shall be comprised of:
(i) Euro 655,775,062.00 in respect of the Common Shares described in Recital A;
(ii) the sum in Euro equal to the subscription price paid by the Seller in respect of any
Capital Increase Shares issued to the Seller; and
(iii) Euro 20,889,711.00 in respect of the Seller's EBRD Option (provided that
completion of the transfer of shares to Nordea and/or the Seller envisaged by any
exercise of the EBRD Put and Call Option Agreement has not occurred),
payable by the Buyer in accordance with Clause 5;
(b) for the sale of the Nordea Tranche, the consideration shall be comprised of:
(i) Euro 327,892,125.00 in respect of the Common Shares described in Recital B;
(ii) the sum in Euro equal to the subscription price paid by Nordea in respect of any
Capital Increase Shares issued to Nordea; and
(iii) Euro 10,443,289.00 in respect of the Nordea EBRD Option (provided that
completion of the transfer of shares to Nordea and/or the Seller envisaged by any
exercise of the EBRD Put and Call Option Agreement has not occurred),
payable by the Buyer in accordance with Clause 5;
(c) for the sale of the BCEN Tranche, the consideration shall be comprised of:
(i) Euro 276,807,865.00 in respect of the Current BCEN Shares; and
(ii) the sum in Euro equal to the subscription price paid by BCEN in respect of any
BCEN Capital Increase Shares,
payable by the Buyer in accordance with Clause 5;
(d) for the sale of the EBRD Tranche the consideration shall be comprised of
Euro 59,625,103.00 in respect of the EBRD Shares (in the event that completion of the
transfer of shares to Nordea and/or the Seller envisaged by any exercise of the EBRD Put
and Call Option Agreement has occurred before Completion in respect of the Current
Tranche); and
(e) for the transfer of the Capital Increase Tranche, the consideration shall be the sum in Euro
equal to the subscription price paid by the Seller in respect of any Capital Increase Shares
issued to the Seller payable by the Buyer in accordance with Clause 5.
3.2 On Completion, the Buyer shall pay to the Seller or the Sellers' nominee (without any reserve and
free of any charge) an amount equal to the applicable consideration plus interest accrued on a daily
rate equal to one month EURIBOR calculated from and including (i) in the case of the Current
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Tranche (other than the Capital Increase Shares), 26 October 2006; (ii) in the case of the Nordea
Tranche, the date of Nordea Completion; (iii) in the case of the BCEN Tranche, the date on which
the BCEN Shares were transferred to the Seller; (iv) in the case of the EBRD Tranche, the date on
which the EBRD Shares were transferred to the Seller; and (v) in the case of the Capital Increase
Shares, the date of issue of those Shares to the Seller.
4. CONDITIONS TO COMPLETION
4.1 Save as otherwise provided in this Clause 4 and in Clause 5, the obligations on the Parties under this
Agreement to proceed to the relevant Completion are conditional upon performance, satisfaction or
waiver (by the Buyer and the Seller) of the relevant Conditions on or before the Long Stop Date.
4.2 To the extent the Conditions are not performed, satisfied or waived (by the Buyer and the Seller) on
or before the Long Stop Date, provided that the Current Tranche Conditions, the Nordea Tranche
Conditions, the BCEN Tranche Conditions (where applicable), the EBRD Tranche Conditions
(where applicable) and/or the Capital Increase Tranche Conditions (where applicable) have been
performed, satisfied or waived on or by the Long Stop Date, completion of the sale and purchase of
the Current Tranche, the Nordea Tranche, the BCEN Tranche (where applicable), the EBRD
Tranche (where applicable) and/or the Capital Increase Tranche (as applicable based on the
satisfaction of the relevant Conditions) shall take place in accordance with Clause 5.3.
4.3 Notwithstanding Clause 4.2, if the Seller gives notice to the Buyer at any time that the Nordea SPA
has been terminated without Nordea Completion having occurred (the “Nordea SPA Termination
Notice”), then provided the Current Tranche Conditions, the BCEN Tranche Conditions, (where
applicable), the EBRD Tranche Conditions (where applicable) and/or the Capital Increase Tranche
Conditions (where applicable) have been performed, satisfied or waived, completion of the sale and
purchase of the Current Tranche, the BCEN Tranche (where applicable), the EBRD Tranche (where
applicable) and/or the Capital Increase Tranche (where applicable) shall take place in accordance
with Clause 5.4.
4.4 Each Party is entitled to terminate this Agreement, if (i) each and every one of the Conditions have
not been performed, satisfied or waived (by the Buyer and the Seller) on or before 31 December
2007 or (ii) there is a material adverse change in the legal, fiscal or financial conditions for
Completion in respect of the Current Tranche under this Agreement in relation to a Party. Where a
Party elects to terminate this Agreement in accordance with this Clause, all claims of the Parties
arising out of this Agreement shall, except for in respect of Clauses 1, 13, 17 and 23, lapse (any
claims arising out of the termination itself are excluded).
4.5 The Buyer and the Seller may waive, in whole or in part, and conditionally or unconditionally, any
of the Conditions other than where to do so would render the entry into, Completion or performance
of this Agreement unlawful.
4.6 Should one of the Conditions subsequently fall away, the Parties will use their best efforts to clear
such defect, should this not be possible for factual or legal reasons, the Parties will mutually agree an
appropriate arrangement which will comply with the statutory legal requirements (above all with the
legal requirements for the protection of the Seller). Further statutory claims remain unaffected.
5. COMPLETION
5.1 Subject to Clause 4 Completion shall take place in accordance with this Clause 5.
5.2 Where the parties have performed, satisfied or waived the Conditions (excluding the BCEN Tranche
Conditions and the EBRD Tranche Conditions), completion of the sale and purchase of the Current
Tranche, the Nordea Tranche, and the Capital Increase Tranche (where applicable) shall take place
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15 Business Days following the date on which all those Conditions have been performed, satisfied or
waived in accordance with the terms of this Agreement (or such earlier date as the parties agree in
writing), at the Seller's offices in Munich, Germany, or such other place as may be agreed between
the Parties.
5.3 In the event that some but not all of the Conditions are performed, satisfied or waived (by the Buyer
and the Seller) on or before the Long Stop Date pursuant to Clause 4.2, completion of the sale and
purchase of the Current Tranche, the Nordea Tranche, the BCEN Tranche (where applicable), the
EBRD Tranche (where applicable) and/or the Capital Increase Tranche (as applicable based on the
satisfaction of the relevant Conditions) shall take place 15 Business Days following the Long Stop
Date in accordance with the terms of this Agreement (or such earlier date as the parties agree in
writing), at the Seller's offices in Munich, Germany, or such other place as may be agreed between
the Parties.
5.4 Notwithstanding the provisions of Clauses 5.2 and 5.3, if the Seller issues a Nordea SPA
Termination Notice pursuant to Clause 4.3, then provided the Current Tranche Conditions, the
BCEN Tranche Conditions (where applicable), the EBRD Tranche Conditions (where applicable)
and/or the Capital Increase Tranche Conditions (where applicable) have been performed, satisfied or
waived, completion of the sale and purchase of the Current Tranche, the BCEN Tranche (where
applicable), the EBRD Tranche (where applicable) and/or the Capital Increase Tranche (as
applicable based on the satisfaction of the relevant Conditions) shall take place 15 Business Days
following the date of receipt of the Nordea SPA Termination Notice from the Seller in accordance
with the terms of this Agreement, (or such earlier date as the parties agree in writing), at the Seller's
offices in Munich, Germany, or such other place as may be agreed between the Parties.
5.5 In respect of any applicable Tranche that the Seller is unable to transfer to the Buyer pursuant to
Clause 5.2, 5.3 or 5.4, the relevant Completion in respect of such Tranche shall take place 15
Business Days following the performance, satisfaction or waiver of the relevant Conditions in
respect of such Tranche, (or such earlier date as the parties agree in writing).
5.6 At the relevant Completion,
(a) the Seller shall observe and perform the provisions of Part 1 of Schedule 2; and
(b) the Buyer shall observe and perform the provisions of Part 2 of Schedule 2.
6. WARRANTIES
6.1 The Seller warrants to the Buyer (such warranties shall be deemed repeated on the date of
Completion in respect of the Current Tranche) that:
(a) the Seller is duly incorporated and validly existing under the laws of Germany and has the
legal right and full power and authority to operate and carry on its business in its current
manner;
(b) the Accounts have been prepared on a consistent and proper basis in accordance with the
laws of the Russian Federation and IFRS (collectively the "Accounting Standards"). The
Accounts give a true and fair view, in all material respects of the financial position of the
Company as of the Accounts Date and of the results of its operations and its cash flows for
the period then ending. The Company has no liabilities, whether actual, contingent or
threatened, that, on the basis of the circumstances known at the date of preparation of the
Accounts, according to the Accounting Standards should have been disclosed or provisioned
in the Accounts and were not so disclosed or provisioned;
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(c) since the Accounts Date:
(i) no event has occurred that has caused or that may be reasonably expected to cause a
material adverse change in the financial, economic, legal or tax position of the
Company; and
(ii) other than the 2005 Dividend, no distribution of capital or income has been declared,
made or paid by or in respect of any share capital or assets of the Company,
(d) the Company has always complied with all its tax obligations and has duly and timely filed
all tax returns required to be filed by applicable laws. To the best of the Seller's knowledge,
all such tax returns were true, complete and correct in all material respects;
(e) the Company has duly and timely paid all taxes due and payable and adequate provisions for
taxes have been recorded in the Accounts in accordance with the IFRS in respect of all taxes
relating to any period prior to the Accounts Date but not yet due;
(f) there are no pending suits, claims, assessments, litigations or other administrative or court
proceeding with respect to any taxes or tax returns of the Company and no notice of claims
or deficiencies for any taxes has been served by any tax authority against the Company and
none of the above has been threatened in writing;
(g) the Company is in compliance in all material respects with all laws or regulations applicable
to its assets and operations. To the best of the Seller's knowledge the Company has not
received any notice, claim or written communication from any regulatory, judicial or
administrative authority asserting that it or any person for which it is responsible, is not in
compliance with any applicable laws or regulations and there are no outstanding
circumstances that may result, with the giving of notice or lapse of time or otherwise, in the
Company being in breach of any applicable laws or regulations;
(h) all licences and authorisations necessary to enable the Company to carry on its business in
the places and in the manner in which such business is carried on have been properly
obtained in accordance with the relevant law and all such licences and authorisations are in
full force and effect. The Company has not received any notice, claim or written
communication from a competent regulatory or administrative authority or any third party
purporting to contest or challenge the validity and effectiveness of such licenses and
authorisations and there are no outstanding circumstances that may result, with the giving of
notice or lapse of time or otherwise, in any of such licenses being contested, suspended,
revoked or annulled;
(i) the Company has satisfied its obligations towards the Employees and has complied with all
laws, collective rules, and terms and conditions of employment and has complied with all
requirements in matters of tax, social security and other contributions via-à-vis the
Employees;
(j) the Company has duly and timely complied with all the material contractual obligations by
which it is or it was bound. The Company has not received any notice, claim or written
communication from any third party claiming that the Company is or has been in breach of
any such contract and purporting to terminate the relevant contract and/or to claim damages,
indemnities or other penalties in relation thereto; there are no outstanding circumstances that
may result, with the giving of notice or lapse of time or otherwise, in the Company being in
breach of any of such contracts;
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(k) there is no action, suit, investigation, arbitration or proceeding (whether regulatory,
administrative, tax, criminal or civil) pending or threatened in writing against the Company
that could result in a payment obligation in excess of Euro 2,000,000; and
(l) the Existing Financing is on arms' length terms.
6.2 The Seller warrants to the Buyer that as at the date of this Agreement in respect of the Current
Shares (excluding any Capital Increase Shares forming part of the Current Shares) and at the date of
Completion in respect of the Current Tranche in respect of the Current Shares (including any Capital
Increase Shares forming part of the Current Shares):
(a) the Seller is the sole legal and beneficial owner of the such Shares, and is entitled to sell and
transfer to the Buyer the full legal and beneficial ownership of such Shares on the terms of
this Agreement without the consent of any third party other than those authorities referred to
in the Conditions;
(b) the Seller has the unfettered authority and right to transfer the full legal and beneficial
ownership in such Shares to the Buyer;
(c) such Shares will be transferred to the Buyer free from any Encumbrance or arrangement or
obligation to create an Encumbrance, right of pre-emption or other third party right of any
description whatsoever (for the avoidance of doubt, future transfers will be subject to all
rights of pre-emption and/or other third party rights contained in the Ancillary Documents);
and
(d) such Shares have been properly allotted and issued and are fully paid.
6.3 The Seller warrants to the Buyer at the date of the Completion in respect of the Nordea Tranche that,
in the period from the Nordea Completion to the date of Completion in respect of the Nordea
Tranche, it has not done anything or omitted to do anything that would render any of the warranties
given by Nordea in the Nordea SPA, as if they were given by the Seller mutatis mutandis, untrue.
6.4 The Seller warrants to the Buyer at the date of the Completion in respect of the BCEN Tranche that,
in the period from the date on which the BCEN Shares were transferred to it to the date of
Completion in respect of the BCEN Tranche, it has not done anything or omitted to do anything that
would render any of the warranties given by BCEN in the BCEN Put Option Agreement, as if they
were given by the Seller mutatis mutandis, untrue.
6.5 The Seller warrants to the Buyer at the date of the Completion in respect of the EBRD Tranche that,
in the period from the date on which the EBRD Shares were transferred to it to the date of
Completion in respect of the EBRD Tranche, it has not done anything or omitted to do anything that
would render any of the warranties given by EBRD in the EBRD Put and Call Option Agreement, as
if they were given by the Seller mutatis mutandis, untrue.
6.6 The Seller warrants to the Buyer on the date of the assignment of each of the Nordea SPA, the
BCEN Put Option Agreement, and the EBRD Put and Call Option Agreement (together the
Warranty Contracts and each a Warranty Contract) in accordance with the terms of this
Agreement, that:
(i) such Warranty Contract as is being assigned has been validly executed and is binding and
existing; and
(ii) the Seller's rights and obligations under the relevant Warranty Contract will, subject to its
terms, be validly transferred and assigned to the Buyer free from any Encumbrance.
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6.7 The Seller warrants to the Buyer on the date of the assignment of each Warranty Contract that the
Seller has not done anything or omitted to do anything that would form the basis of a counterclaim
or set off against a claim for a breach of warranty, or a claim under an indemnity, under that
Warranty Contract.
7. INDEMNIFICATION
The Seller hereby agrees, pursuant to the terms and subject to the conditions and limitations set out
in Clause 7 and 8, to keep the Buyer indemnified against any costs, losses, charges, claims,
liabilities, expenses or direct damages ("Loss") suffered by the Buyer or the Company as a result of
any of the warranties set out in Clause 6 above proving to be false or incomplete, provided that:
(i) in the case of Loss suffered by the Company, the Seller's liability shall only be to a
maximum percentage of such Loss as is equal to the percentage of the total number
of shares in the capital of the Company represented by the Shares (less any Nordea
Shares, the Capital Increase Tranche, BCEN Shares and EBRD Shares) actually
transferred to the Buyer pursuant to this Agreement at the time of the Relevant
Claim;
(ii) in the case of Loss suffered by the Buyer (other than in respect of Loss suffered as a
result of any of the Title Warranties or the warranty in Clause 6.7 proving to be false
or incomplete), the Seller's liability shall be reduced by a percentage equal to that
percentage of the total number of Shares actually transferred to the Buyer pursuant
to that Agreement at the time of the Relevant Claim represented by any Nordea
Shares, the Capital Increase Tranche, BCEN Shares and EBRD Shares; and
(iii) for the avoidance of doubt, the Buyer shall not be entitled to recover from the Seller
under this Agreement more than once in respect of the same Loss or more than once
in respect of a number of Relevant Claims arising out of substantially the same facts
or circumstances.
8. LIMITATIONS
8.1 The liability of the Seller under or in respect of this Agreement (including the warranties in Clause 6
and/or the indemnity in Clause 7) shall be limited as follows:-
(a) no claim under this Agreement (including in respect of the warranties or the indemnities) (a
“Relevant Claim”) may be made unless written notice of such Relevant Claim has been
given to the Seller before the date that falls 12 calendar months after the relevant
Completion in the case of the warranties in Clauses 6.1(a) – (c), and 6.1(g) – (l) inclusive
(the “Business Warranties”), the tenth anniversary of Closing in the case of the warranties
in Clauses 6.2 ,6.3, 6.4, 6.5 and 6.6 (the “Title Warranties”), six months after the date on
which the tax assessments for the relevant taxable period have become legally binding in the
case of warranties in Clauses 6.1(d) – (f) inclusive (the “Tax Warranties”), and the third
anniversary of Nordea Completion in respect of the warranty in Clause 6.7;
(b) no Relevant Claim may be made unless and until the aggregate amount of all Relevant
Claims exceeds Euro 70,000,000 (once such limit is exceeded the full amount of all such
claims can be claimed);
(c) the maximum aggregate liability of the Seller under the warranties and the indemnities shall
not exceed an amount equal to:
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(i) Euro 426,253,790 (representing 65% (sixty five per cent) of the consideration in
respect of the Common Shares described in Recital A); plus
(ii) an amount in Euros equal to 65% (sixty five per cent) of:
(A) the amount the Seller has paid for any Capital Increase Shares it has
subscribed for; and
(B) where Completion in respect of the Nordea Tranche has occurred, any
amount Nordea has paid for any Capital Increase Shares it has subscribed
for before the Nordea Completion,
provided that in each case the Seller has received all payments due from the
Purchaser to the Seller under this Agreement that relate to such Capital Increase
Shares, at the date of the Relevant Claim.
(d) the Seller shall not be liable in respect of any Relevant Claim by the Buyer under this
Agreement if such individual claim is less than Euro 2,000,000,
PROVIDED ALWAYS that the limitations set out in (b), (c) and (d) above shall not apply
with respect of a Relevant Claim in relation to the Title Warranties PROVIDED FURTHER
that the maximum aggregate liability of the Seller shall not exceed an amount equal to the
total consideration actually received by the Seller pursuant to Clause 3.
8.2 In the event that the Buyer becomes aware of a fact or circumstance which could result in the Buyer
being able to make a Relevant Claim under this Agreement (other than a Relevant Claim in respect
of the Tax Warranties), the Buyer hereby undertakes to provide written notice of such fact or
circumstance to the Seller within 90 calendar days of the Buyer becoming aware of such fact or
circumstance. In the case of a Relevant Claim in respect of the Tax Warranties the Buyer shall
provide written notice of such fact or circumstance to the Seller promptly after the Buyer becomes
aware of such fact or circumstance. The Seller shall have a period of 30 calendar days beginning on
the date of receipt of such written notice from the Buyer in which to remedy the alleged fact or
circumstance.
8.3 The Buyer shall not be able to claim for any Loss under this Agreement (including in respect of the
warranties in Clause 6 or the indemnities in Clause 7) to the extent that:
(a) there is a specific or generic reserve or fund set out in the Accounts relating to the facts or
circumstances giving rise to the Loss;
(b) the Buyer or the Company is able to recover the monies from any insurer or third party in
respect of such Loss;
(c) the Company has an attributable tax benefit not contemplated in the Accounts which it is
entitled to and can effectively enjoy as a consequence of the Loss;
(d) the Loss is lower than the total tax refunds relating to the relevant taxable period and which
are not contemplated in the Accounts;
(e) the Loss arises out of a reorganisation of the Company initiated by the Buyer or the
Company after any Completion;
(f) the Loss arises out of a material change in the tax accounting policies initiated by the Buyer
or the Company after any Completion which affects the relevant taxable period; and
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(g) the Buyer has a validly existing right to claim for such Loss against Nordea, BCEN or
EBRD.
For the avoidance of doubt, the exclusions in Clause 8.3(c) and (d) shall apply only to Relevant
Claims made in respect of the Tax Warranties.
8.4 To the extent the Company receives any tax refunds relating to any period prior to any Completion
and which, taking into account any relevant tax losses relating to such period, in aggregate exceed
Euro 25,000,000 (Net Tax Refund), the Buyer shall pay to the Seller such percentage of the full
amount of such Net Tax Refund (and not the excess only) as is equal to the percentage of the Shares
(less the Nordea Shares, the Capital Increase Tranche, the BCEN Shares and/or the EBRD Shares)
actually transferred to the Buyer (as against the total issued share capital of the Company) at the date
the relevant Net Tax Refund is received by the Company.
8.5 In case of any claim brought or threatened by a third party which exceeds Euro 2,000,000, including,
but not limited to, claims brought by tax or other governmental authorities, against the Buyer and/or
the Company, which could reasonably result in a breach of any of the Business and/or Tax
Warranties, (a "Claim") the Buyer will notify the Seller in accordance with Clause 8.2 of any such
Claim and the Buyer will upon the request of the Seller oppose, or cause the Company to oppose,
such Claim, and the Seller shall use its best efforts in assisting the Buyer or the Company in the
defence of such Claim. Subject to the provisions of this Agreement, the Seller shall bear all
reasonable attorney´s fees sustained or incurred by the Buyer or the Company in the defence of such
Claims (to the extent such fees cannot be recovered by the third party). The Buyer shall procure that
no such Claim is settled without the prior written consent of the Seller (not to be unreasonably
withheld); provided, however, that such consent shall be deemed to be given if the Seller does not
object within 20 Business Days following receipt of the Buyer´s written notification to the Seller of
its intention to settle a claim; it being understood, for the avoidance of doubt, that the Buyer shall be
free to settle any such claim without the written consent of the Seller, but shall by doing so be
deemed to waive unconditionally and irrevocably its right to make a claim for a breach of warranty
and forfeit its right to receive indemnification from the Seller pursuant to Clause 7 for such Claim
settled without the Seller's consent.
9. FINANCING AGREEMENTS
9.1 The Parties agree that any existing financing agreements or arrangements between the Seller and the
Company (other than in respect of such agreements or arrangements entered into after the date of
this Agreement) (the "Existing Financing") shall remain in place until the expiry of such Existing
Financing in accordance with the terms and conditions of such Existing Financing or unless
otherwise agreed between the Parties.
9.2 On expiry of each Existing Financing: (a) the Seller shall have the opportunity to offer to the
Company to extend the Existing Financing or to enter into a new financing agreement or
arrangement; and (b) the Buyer shall ensure, to the extent legally possible, that the Company takes
into due consideration such offer of the Seller.
10. COOPERATION AGREEMENT
The Purchaser shall, to the extent legally possible, use its best efforts to procure that the Company
keeps in place a designated function to service clients of the Company and/or of the Seller (including
the trade risk advisory and project finance functions). The Seller and the Company shall negotiate in
good faith to agree as soon as possible after Completion of the Current Tranche on a cooperation
agreement which, inter alia, contains details of the cooperation of the Seller and the Company in
relation to the services to be provided to clients of the Seller and the trade risk advisory and project
finance functions including the procurement of the Seller's customers for the Company and the
16
payment of the appropriate commission fees to the Seller for such procurements. The Buyer shall, to
the extent legally possible, use its best efforts to ensure that the Company and the Seller as soon as
possible after Completion in respect of the Current Tranche reach agreement on such cooperation.
11. CONDUCT OF BUSINESS
The Seller shall, during the period prior to Completion, procure (so far as it is able) that the
Company will carry on business only in the ordinary course, save in so far as is otherwise agreed in
writing beforehand with the Buyer. Any financing agreement granted to the Company by the Seller
after signing requires the consent of the Buyer, which may not be unreasonably withheld.
12. ANCILLARY DOCUMENTS
12.1 From each Completion the Buyer shall:
(a) be entitled to such benefits of the Seller under the Ancillary Documents as relate to the
relevant Tranche; and
(b) carry out, perform and complete such of the obligations and liabilities to be discharged by
the Seller under the Ancillary Documents as relate to the relevant Tranche.
12.2 The Seller shall assign the benefit (subject to the burden) of the Ancillary Documents to the Buyer
from the date of the last Completion to occur pursuant to this Agreement (or, (i) in the case of the
Nordea SPA (including the benefit of all warranties or indemnities thereunder), the date of
Completion in respect of the Nordea Tranche, (ii) in the case of the BCEN Put Option Agreement,
the date of Completion in respect of the Current Tranche (provided that completion of the transfer of
shares to the Seller envisaged by any exercise of the BCEN Put Option Agreement has not occurred),
and (iii) in the case of the EBRD Put and Call Option Agreement, the date of Completion in respect
of the Current Tranche (provided that completion of the transfer of shares to the Seller envisaged by
any exercise of the EBRD Put and Call Option Agreement has not occurred). Insofar as the benefit
or burden of any of the Ancillary Documents cannot effectively be assigned to the Buyer except by
an agreement or novation with or consent to the assignment from the company concerned:
(a) the Seller shall at the Buyer's request use reasonable endeavours with the co-operation of the
Buyer to procure such novation or assignment;
(b) until the Ancillary Document is novated or assigned the Seller shall hold it in trust for the
Buyer absolutely and the Buyer shall (if such sub-contracting is permissible and lawful
under the Ancillary Document), as the Seller's sub-contractor, perform all the obligations of
the Seller under the Ancillary Document to be discharged after Completion and shall
indemnify the Seller against all costs in respect of any failure on the part of the Buyer to
perform those obligations; and
(c) until the Ancillary Document is novated or assigned the Seller shall (so far as it lawfully
may) give all reasonable assistance to the Buyer (at the Buyer's request and expense) to
enable the Buyer to enforce its rights under the Ancillary Document.
12.3 Subject to and from Completion in respect of the Current Tranche the Buyer shall indemnify the
Seller within ten Business Days of receipt of a written demand of the Seller and hold harmless the
Seller against all costs and Losses (including for the avoidance of doubt any liability to pay the
purchase price) in respect of the BCEN Put Option Agreement.
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13. NOTICES
Notices hereunder shall be in writing and shall be delivered either by hand or sent by first class post
to the Party due to receive them at the addresses of the Parties and the Company as set out in this
Agreement or such other addresses as may from time to time be notified to the Parties. Notices
delivered by hand shall be deemed duly given when delivered and notices sent by post shall be
deemed duly given six days after posting excluding Saturdays, Sundays and public holidays in the
countries of origin and destination.
14. SUCCESSORS
The rights and obligations of the Seller and the Buyer under this Agreement shall continue for the
benefit of, and shall be binding on, their respective successors and assigns.
15. ASSIGNMENT
The rights of the Parties shall not be assignable without the prior written consent of the other Party.
16. ENTIRE AGREEMENT AND FURTHER ASSURANCE
16.1 This Agreement contains the whole agreement between the Parties relating to the subject matter of
this Agreement at the date hereof to the exclusion of any terms implied by law which may be
excluded by contract and supersedes any previous written or oral agreement between the Parties in
relation to the matters dealt with in this Agreement.
16.2 The Buyer acknowledges that it has not been induced to enter into this Agreement by any
representation, warranty or undertaking not expressly incorporated into it.
16.3 So far as is permitted by law and except in the case of fraud, each Party agrees and acknowledges
that its only right and remedy in relation to any representation, warranty or undertaking made or
given in connection with this Agreement shall be for breach of the terms of this Agreement to the
exclusion of all other rights and remedies (including those in tort or arising under statute).
16.4 At any time after the date of this Agreement, the Seller shall and shall use its best endeavours to
procure that any necessary third party shall execute such documents and do such acts and things as
the Buyer may reasonably require for the purposes of giving to the Buyer the full benefit of all the
provisions of this Agreement.
17. COSTS AND EXPENSES
Each Party shall bear its own costs and expenses in relation to the preparation, execution and
carrying into effect of this Agreement and the documents referred to herein (including any costs and
expenses relating to the external advisors engaged by a Party).
18. THIRD PARTY RIGHTS
Nothing in this Agreement is intended to confer on any person any right to enforce any term of this
Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act
1999.
19. SEVERANCE
If at any time any provision of this Agreement is or becomes invalid, illegal or unenforceable in any
respect, such provision shall be deemed to be severed from this Agreement but the validity, legality
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and enforceability of the remaining provisions of this Agreement shall not be affected or impaired
thereby.
20. VARIATION
No variation of this Agreement shall be effective unless made in writing and signed by or on behalf
of all the Parties.
21. REMEDIES AND WAIVERS
21.1 No delay or omission by either Party in exercising any right, power or remedy provided by law or
under this Agreement or any other documents referred to in it shall:
(a) affect that right, power or remedy; or
(b) operate as a waiver thereof.
21.2 The single or partial exercise of any right, power or remedy provided by law or under this
Agreement shall not preclude any other or further exercise thereof or the exercise of any other right,
power or remedy.
21.3 Except as otherwise provided in this Agreement, the rights, powers and remedies provided in this
Agreement are exclusive of any rights, powers and remedies otherwise provided by law.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which taken together, shall
constitute one and the same agreement, and any Party (including any duly authorised representative
of a Party) may enter into this Agreement by executing a counterpart.
23. GOVERNING LAW
23.1 This Agreement shall be governed in all respects by English law except with respect to the actions
necessary to effect the actual transfer of shares which shall be undertaken in accordance with the
laws of the Russian Federation.
23.2 The Parties hereto irrevocably agree that any disputes which may arise out of, or in connection with,
this Agreement and its interpretation shall be finally settled by arbitration in London (England) in
accordance with the “Rules of Arbitration” (the “ICC Rules”) of the International Chamber of
Commerce (the “ICC”). The arbitration shall be heard by three arbitrators appointed in accordance
with the ICC Rules.
23.3 All submissions and awards in relation to arbitration under this Agreement shall be made in English
and all arbitration proceedings and all pleadings shall be in English. Original documents may be
submitted as evidence in their original language. Witnesses not fluent in English may give evidence
in their native tongue (with an appropriate translation). Original documents in a language other than
English shall be submitted as evidence in English translation accompanied by the original or
certified copy thereof.
AS WITNESS this Agreement has been signed by the Parties (or their duly authorised representatives) on
the date stated at the beginning of this Agreement.
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SCHEDULE 1
CONDITIONS
PART 1
CURRENT TRANCHE CONDITIONS
1. The obtaining of the following consents:
(a) approval of the CBRF for the Buyer to acquire the Current Tranche;
(b) approval of the FAS for the Buyer to acquire the Current Tranche; and
(c) approval of the AFMA for the Buyer to acquire the Current Tranche.
2. The approvals, waivers and consents which may be required from the IMB shareholders and the
Company under the IMB Shareholders' Agreement and the Company's constitutional documents for
the acquisition by the Buyer of the Current Tranche, having been obtained or (as may be agreed in
writing by the Seller and the Buyer) ceasing to be required; including, but not limited to, the waiver
by EBRD and BCEN (and Nordea, if applicable) of their respective pre-emption rights in respect of
the transfer of the Current Tranche.
3. Consent of the shareholders' meeting of Bayerische Hypo-und Vereinsbank AG, Munich.
4. That in the best judgement of the management board of the Seller, on the basis of a legal opinion
rendered by outside counsel, the consenting resolution pursuant to the preceding paragraph is free
from defects which prevent Completion of the sale of the Current Tranche pursuant to this
Agreement.
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PART 2
NORDEA TRANCHE CONDITIONS
1. Completion in respect of the Current Tranche having occurred or occurring at the same time as
Completion in respect of the Nordea Tranche.
2. The Nordea Completion having occurred.
3. The obtaining of the following consents:
(a) approval of the CBRF for the Buyer to acquire the Nordea Tranche;
(b) approval of the FAS for the Buyer to acquire the Nordea Tranche; and
(c) approval of the AFMA for the Buyer to acquire the Nordea Tranche.
4. The approvals, waivers and consents which may be required from the IMB shareholders and the
Company under the IMB Shareholders' Agreement and the Company's constitutional documents for
the acquisition by the Buyer of the Nordea Tranche, having been obtained or (as may be agreed in
writing by the Seller and the Buyer) ceasing to be required; including, but not limited to, the waiver
by EBRD and BCEN of their respective pre-emption rights in respect of the transfer of the Nordea
Tranche.
5. Consent of the shareholders' meeting of Bayerische Hypo-und Vereinsbank AG, Munich.
6. That in the best judgement of the management board of the Seller, on the basis of a legal opinion
rendered by outside counsel, the consenting resolution pursuant to the preceding paragraph is free
from defects which prevent Completion of the sale of the Nordea Tranche pursuant to this
Agreement.
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PART 3
CAPITAL INCREASE TRANCHE CONDITIONS
1. Completion in respect of the Current Tranche having occurred or occurring at the same time as
Completion in respect of the Capital Increase Tranche.
2. The Capital Increase Shares having been issued.
3. The obtaining of the following consents:
(a) approval of the CBRF for the Buyer to acquire the Capital Increase Tranche;
(b) approval of the FAS for the Buyer to acquire the Capital Increase Tranche; and
(c) approval of the AFMA for the Buyer to acquire the Capital Increase Tranche.
4. The approvals, waivers and consents which may be required from the IMB shareholders and the
Company under the IMB Shareholders' Agreement and the Company's constitutional documents for
the acquisition by the Buyer of the Capital Increase Tranche, having been obtained or (as may be
agreed in writing by the Seller and the Buyer) ceasing to be required; including, but not limited to,
the waiver by EBRD and BCEN (and Nordea, if applicable) of their respective pre-emption rights in
respect of the transfer of the Capital Increase Tranche.
5. Consent of the shareholders' meeting of Bayerische Hypo-und Vereinsbank AG, Munich.
6. That in the best judgement of the management board of the Seller, on the basis of a legal opinion
rendered by outside counsel, the consenting resolution pursuant to the preceding paragraph is free
from defects which prevent Completion of the sale of the Capital Increase Tranche pursuant to this
Agreement.
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PART 4
BCEN TRANCHE CONDITIONS
1. Completion in respect of the Current Tranche having occurred or occurring at the same time as
Completion in respect of the BCEN Tranche.
2. BCEN having exercised its rights to transfer the BCEN Shares to the Seller and the transfer to the
Seller envisaged by such exercise has been completed prior to Completion in respect of the Current
Tranche (and transfer of the BCEN Put Option Agreement).
3. The obtaining of the following consents:
(a) approval of the CBRF for the Buyer to acquire the BCEN Tranche;
(b) approval of the FAS for the Buyer to acquire the BCEN Tranche; and
(c) approval of the AFMA for the Buyer to acquire the BCEN Tranche.
4. The approvals, waivers and consents which may be required from the IMB shareholders and the
Company under the IMB Shareholders' Agreement and the Company's constitutional documents for
the acquisition by the Buyer of the BCEN Tranche, having been obtained or (as may be agreed in
writing by the Seller and the Buyer) ceasing to be required; including, but not limited to, the waiver
by EBRD and BCEN (and Nordea, if applicable) of their respective pre-emption rights in respect of
the transfer of the BCEN Tranche.
5. Consent of the shareholders' meeting of Bayerische Hypo-und Vereinsbank AG, Munich.
6. That in the best judgement of the management board of the Seller, on the basis of a legal opinion
rendered by outside counsel, the consenting resolution pursuant to the preceding paragraph is free
from defects which prevent Completion of the sale of the BCEN Tranche pursuant to this
Agreement.
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PART 5
EBRD TRANCHE CONDITIONS
1. Completion in respect of the Current Tranche having occurred or occurring at the same time as
Completion in respect of the EBRD Tranche.
2. EBRD having exercised its rights to transfer the EBRD Shares to the Seller and the transfer to the
Seller envisaged by such exercise has been completed prior to Completion in respect of the Current
Tranche (and transfer of the EBRD Put Option Agreement).
3. The obtaining of the following consents:
(a) approval of the CBRF for the Buyer to acquire the EBRD Tranche;
(b) approval of the FAS for the Buyer to acquire the EBRD Tranche; and
(c) approval of the AFMA for the Buyer to acquire the EBRD Tranche.
4. The approvals, waivers and consents which may be required from the IMB shareholders and the
Company under the IMB Shareholders' Agreement and the Company's constitutional documents for
the acquisition by the Buyer of the BCEN Tranche, having been obtained or (as may be agreed in
writing by the Seller and the Buyer) ceasing to be required; including, but not limited to, the waiver
by BCEN and EBRD (and Nordea, if applicable) of their respective pre-emption rights in respect of
the transfer of the EBRD Tranche.
5. Consent of the shareholders' meeting of Bayerische Hypo-und Vereinsbank AG, Munich.
6. That in the best judgement of the management board of the Seller, on the basis of a legal opinion
rendered by outside counsel, the consenting resolution pursuant to the preceding paragraph is free
from defects which prevent Completion of the sale of the EBRD Tranche pursuant to this
Agreement.
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SCHEDULE 2
COMPLETION MECHANICS
PART 1
SELLER'S OBLIGATIONS
At each Completion the Seller shall procure, so far as it is able, the delivery to the Buyer of:
(a) duly executed transfer order instructing the Company to transfer the Shares from the Seller's
personal account in the shareholders' register of the Company to the personal account of the Buyer or
its nominee;
(b) extract from the shareholders register of the Company confirming that the Shares have been
transferred to the Buyer (subject to the Buyer complying with its obligation in Part 2(b) of this
Schedule 2 to procure that the Company immediately registers the transfer of the Shares to the Buyer
in the shareholders' register of the Company);
(c) a copy of the Sellers shareholder resolution approving the sale of the relevant Tranche; and
(d) evidence that the relevant Conditions have been performed, satisfied or waived.
PART 2
BUYER'S OBLIGATIONS
At each Completion the Buyer shall:
(a) open a personal securities account in the shareholders register of the Company,
and, subject to the Seller having done or procured to be done those things set out in Part 1 of this Schedule 2;
(b) make a payment to the Seller of the total consideration in Euro by electronic transfer in immediately
available cleared funds to the Seller as specified in Clause 3 to the following bank account [IBAN:
DE12 7002 0270 0415021312 SWIFT: HYVED EMMXXX], or such other account as the Seller
notifies to the Buyer not less than 2 Business Days prior to Completion; and
(c) procure that the Company immediately registers the transfer of the Shares to the Buyer in the
shareholders' register of the Company.
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