EXHIBIT III Compagnie Gervais Danone SA and Limited Liability Company “Wimm- Bill-Dann Finance”
EXHIBIT
III
Compagnie
Gervais Danone SA
and
Limited
Liability Company “Wimm-▇▇▇▇-▇▇▇▇ Finance”
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AGREEMENT
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for
the sale and purchase of securities in Open Joint
Stock
Company Wimm-▇▇▇▇-▇▇▇▇ Foods
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11
August 2010
CONTENTS
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Clause
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Page
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Sale
And Purchase
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2
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2.
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Price
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2
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3.
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Conditions
to Closing
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3
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4.
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Closing
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3
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5.
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Seller
Warranties
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3
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6.
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Wbd
Warranties
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4
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7.
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Undertakings
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4
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8.
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No
Rights of Rescission or Termination
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11
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9.
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Payments
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11
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10.
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Announcements
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12
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11.
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Confidentiality
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12
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12.
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Assignment
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13
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13.
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Further
Assurances
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13
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14.
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Costs
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13
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15.
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Notices
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14
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16.
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Conflict
with other Agreements
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14
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17.
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Whole
Agreement
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15
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18.
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Waivers,
Rights and Remedies
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15
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19.
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Counterparts
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16
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20.
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Variations
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16
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21.
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Invalidity
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16
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22.
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No
Third Party Enforcement Rights
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16
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23.
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No
Set Off
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16
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24.
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Governing
Law and Jurisdiction
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17
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Schedule 1
Seller Warranties
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19
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Schedule 2
WBD Warranties
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20
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Schedule 3
Terms and Form of Announcement
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21
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Schedule 4
Definitions and Interpretation
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25
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AGREEMENT
dated 11
August 2010
PARTIES:
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1.
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Compagnie
Gervais Danone SA, a company incorporated in France with registered number
552 067 092 R.C.S. Paris and having its address at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the Seller);
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2.
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Limited
Liability Company “Wimm-▇▇▇▇-▇▇▇▇ Finance”, a company incorporated in the
Russian Federation with registered number 1077763213000 and having its
address at 109028 Russia, Moscow, Solianka st. 13, bld.2 (WBD),
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(WBD
together with the Seller, the parties).
Words and
expressions used in this Agreement shall be interpreted in accordance with
Schedule 4.
It
is agreed:
1. Sale And
Purchase
1.1 On
the terms set out in this Agreement, at Closing, the Seller shall sell or
procure the sale with full title guarantee of, and WBD shall procure that the
Purchaser purchases, the Securities free of any Encumbrance and with all rights
attached or accruing to them at Closing (for the avoidance of doubt any
distributions including any dividends or other payments declared, contracted or
received in relation to the Securities prior to Closing shall be for the account
of and shall be transferred to the Seller) providing that notwithstanding that
the sale of the Securities is made with full title guarantee WBD acknowledges
that (i) the legal title to the Securities are held by nominees and
(ii) neither it nor any of its Affiliates shall have any claim under this
Agreement or otherwise in excess of the amount stated in clause 18.3(b) or
other remedy in respect of defects in the title of the Seller to the Securities
which result from matters occurring prior to the date on which the Seller
acquired such Securities (but excluding any title claims which relate to the
Seller’s acquisition of such Securities).
1.2 The
Seller shall not be obliged to complete the sale of any of the Securities unless
the purchase of all the Securities is completed simultaneously.
2. Price
2.1 The
price for the sale and purchase of the Securities (the Price)
shall be US$470,000,000 (four hundred and seventy million US
dollars).
2.2 The
Price shall be payable in accordance with clause 7 and the Escrow
Agreement.
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3. Conditions to
Closing
3.1 Closing
shall be conditional on FAS Consent and AMC Consent having been given to the
Unimilk Transaction provided that if the AMC Consent has not been given as of 31
October 2010, the AMC Consent condition to Closing shall be deemed
waived.
3.2 Either
or both of the Conditions may be waived by notice from the Seller to
WBD.
3.3 Provided
that the Conditions are satisfied (or waived in accordance with clause 3.2
or deemed waived in accordance with clause 3.1), the parties shall procure
that the Proposed Transaction will be completed on the Closing
Date. In order to ensure that the Securities will be transferred on
the Closing Date and that the Price will be paid on the Closing Date, each party
shall (and WBD shall procure that the Purchaser shall) give the necessary
instructions in due time and the Seller and WBD shall take all such further
steps as may be necessary to (i) transfer the Securities to the Purchaser
(or such person as will hold the Securities on its behalf and is provided for in
the Escrow Agreement) and (ii) transfer the Price to the Seller
respectively.
3.4 Each
of the Seller and WBD shall notify the other promptly upon becoming aware that a
Condition has been fulfilled. The first date on which both Conditions
are satisfied (or waived in accordance with clause 3.2 or deemed waived in
accordance with clause 3.1) is referred to as the Unconditional
Date.
4. Closing
4.1 The
transfer of the Ordinary Shares and the ADRs to the Purchaser and the transfer
of the Price to the Seller pursuant to this Agreement shall take place as
provided in the Escrow Agreement but in any event within seven Business Days of
the Unconditional Date (the Closing
Date).
4.2 At
Closing the parties shall procure (i) that the Escrow Agent shall carry out
those actions set out in the Escrow Agreement and (ii) that the terms of
the Escrow Agreement are complied with such that the Price is delivered to the
Seller and the Securities are delivered to the Purchaser (or such person as will
hold the Securities on its behalf and is provided for in the Escrow
Agreement).
5. Seller
Warranties
5.1 The
Seller warrants to WBD in relation to the Securities to be sold to the Purchaser
as at the date of this Agreement in the terms of the Seller
Warranties. The Seller Warranties shall be repeated at Closing by
reference to the facts and circumstances then existing.
5.2 The
Seller Warranties do not and shall not be deemed to include any warranty in
relation to the necessity for any party to obtain FAS Consent or Strategic
Consent in relation to the sale or purchase of the Securities by the Purchaser
pursuant to this Agreement or any Transaction Document or that any person has
obtained any such consent and the Seller gives no warranty, undertaking or
promise in regard to such matters.
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6. WBD Warranties
WBD
warrants to the Seller as at the date of this Agreement in the terms of WBD
Warranties. WBD Warranties shall be repeated at Closing by reference
to the facts and circumstances then existing.
7. Undertakings
Approvals
7.1 As
soon as reasonably practicable following the date of this Agreement and in any
case within seven (7) Business Days of the date of this Agreement:
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(a)
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the
Seller shall deliver or ensure that there is delivered or made available
to WBD to its reasonable satisfaction a copy of a resolution (certified by
a duly appointed officer as true and correct) of the board of the Seller
authorising the execution of and the performance by the Seller of its
obligations under this Agreement and each of the Transaction Documents to
be executed by it;
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(b)
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WBD
shall deliver or ensure that there is delivered or made available to the
Seller to its reasonable satisfaction a copy of a resolution (certified by
a duly appointed officer as true and correct) of the board or, as
applicable, supervisory board of directors of each of WBD and the
Purchaser (and, if required by the law of its jurisdiction or its articles
of association, by-laws or equivalent constitutional documents, of their
respective shareholders) authorising the execution of and the performance
by WBD and the Purchaser of its obligations under this Agreement and each
of the Transaction Documents to be executed or performed by
it.
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Escrow
arrangements
7.2 Promptly
following the execution of this Agreement, and in any event prior to
31 August 2010:
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(a)
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WBD
shall procure that the Purchaser shall establish and maintain an account
with each of the Russian Depositary and the US Depositary and shall take
such other actions as the Russian Depositary and the US Depositary
requires to allow the transfer of the Securities to the Purchaser in
accordance with this Agreement, and WBD shall procure that the Purchaser
shall notify the details of such accounts to the Seller promptly after
such account is opened;
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(b)
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the
Seller shall and WBD shall procure that the Purchaser shall enter into an
escrow agreement with the Escrow Agent on the terms set out in
clause 7.3 (the Escrow
Agreement);
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(c)
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the
Seller shall transfer the ADRs to the Escrow ADR
Account;
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(d)
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the
Seller shall transfer the Ordinary Shares to the Escrow Share
Account;
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(e)
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WBD
shall procure that the Price is transferred to the Escrow Cash
Account.
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7.3 The
Escrow Agreement shall provide that:
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(a)
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the
Escrow Agent shall:
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(i)
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establish
and maintain an Escrow ADR Account into which it shall accept delivery of
the ADRs;
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(ii)
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maintain
such Escrow ADR Account as securities intermediary on behalf of the Seller
as its customer;
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(iii)
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remit
according to the Seller’s instruction any and all dividends or other
distributions received or declared with respect to the ADRs during the
period the ADRs are kept in the Escrow ADR
Account;
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(iv)
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not
exercise voting or other rights attaching to the ADRs during the period
the ADRs are kept in the Escrow ADR Account, except as set forth in
clause 7.4;
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(v)
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establish
and maintain an Escrow Share Account into which it shall accept delivery
of the Ordinary Shares;
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(vi)
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maintain
such Escrow Share Account on behalf of the Seller as its
customer;
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(vii)
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remit
according to the Seller’s instruction any and all dividends or other
distributions received or declared with respect to the Ordinary Shares
during the period the Ordinary Shares are kept in the Escrow Share
Account;
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(viii)
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not
exercise voting or other rights attaching to the Shares during the period
the Shares are kept in the Escrow Share Account, except as set forth in
clause 7.4;
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(b)
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the
Escrow Agent shall establish and maintain an Escrow Cash Account into
which it shall accept payment of the
Price;
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(c)
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upon
satisfaction of the Conditions the Escrow Agent shall remit the Price to
the Seller’s Bank Account by wire transfer in immediately available funds
and (aa) deliver and release the ADRs to the Purchaser’s account
maintained with the US Depositary and (bb) deliver the Ordinary
Shares to the Purchaser’s account with the Russian
Depositary;
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(d)
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upon
the date falling 3 Business Days after the date on which this Agreement is
terminated in accordance with its terms, the Escrow Agent shall
automatically:
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(i)
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deliver
and release the ADRs to the Seller’s account;
and
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(ii)
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deliver
and release the Ordinary Shares to the Seller’s
account;
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(iii)
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remit
and release the Price to the Purchaser’s Bank Account (subject to the
rights provided for in clause 7.9 to
7.14).
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Voting
arrangements
7.4 From
the date on which the Price is paid into the Escrow Cash Account until the date
on which this Agreement terminates in accordance with its terms or Closing
occurs (the Period),
save as required by law or regulation, the Seller shall not vote or instruct the
Escrow
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Agent to
vote the ADRs or the Ordinary Shares other than in the case of any vote by the
Company’s shareholders (whether (i) at any general meeting of the Company’s
shareholders; (ii) in writing; or (iii) otherwise) in relation
to:
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(a)
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a
transaction with or relating to: (i) a company in which it
is publicly known that any member of the Seller’s Group has a significant
equity interest; (ii) the acquisition of (aa) any shares or
other securities or rights in respect of such shares or securities in
Unimilk Holdings (Cyprus) Limited or any of its subsidiaries or any
company operating the business known as Unimilk; or (bb) any part of
such business or rights in respect of the whole or any part of such
business;
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(b)
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the
liquidation of the Company;
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(c)
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any
resolution which would result in any obligation on the Seller or any
member of the Seller Group or any Representative of the Seller or any
member of the Seller Group (or the Escrow Agent) to pay any amount or
incur any liability;
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(d)
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any
resolution which would prevent (i) the Purchaser or WBD carrying out
their obligations under this Agreement or (ii) the Seller from
delivering the Ordinary Shares and the ADRs as required under this
Agreement (including without limitation any resolution which would result
in the holder of the Ordinary Shares or the ADRs (or the shares underlying
the ADRs) being required to dispose or transfer or exchange such
securities or such securities ceasing to be held by such
person);
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(e)
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the
issue or distribution of securities by the Company or any member of its
group (other than an issue where all shareholders in the Company have pro
rata rights to subscribe for such
securities);
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(f)
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in
respect of any public tender offer made for any shares or depositary
receipts of the Company.
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Obligation
to pay Trading Price Decrease
7.5 In
the event that this Agreement is terminated in accordance with its terms (and
Closing has not occurred), WBD shall pay to the Seller an amount (expressed in
united states dollars) that is equal to the Trading Price Decrease if the
Trading Price Decrease arises as a result of any resolution of the shareholders
of the Company (the Trading Price
Decrease Resolution) passed during the Period (excluding any such
resolution (i) voted upon by the Seller; or (ii) which is for the
appointment of members of the board of the Company as a result of the
resignation of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇).
For the
avoidance of doubt and notwithstanding anything in clauses 7.6 to 7.15, WBD
shall not be obligated to pay the Trading Price Decrease if Closing occurs or in
relation to a Trading Price Decrease arising as a result of any resolution of
shareholders voted upon by the Seller or which is for the appointment of members
of the board of the Company as a result of the resignation of ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
Calculation
of the Trading Price Decrease
7.6 The
Trading Price Decrease shall be calculated as follows (for the avoidance of
doubt, the amount of the Trading Price Decrease shall not be determined at the
Seller’s discretion):
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(a)
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the
weighted average price of a share in the Company as reported in US dollars
for the 20 trading days preceding the announcement of the meeting of
the Company’s shareholders to consider the relevant resolution shall be
calculated;
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(b)
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the
weighted average price of an ADR over shares in the Company as reported in
US dollars for the 20 trading days preceding the announcement of the
meeting of the Company’s shareholders to consider the relevant resolution
shall be calculated and such amount shall be multiplied by 4 (or if there
is any change in the number of shares in the Company which an ADR
represents, the number of shares in the Company that an ADR
represents);
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(c)
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the
amounts calculated in (a) and (b) shall be aggregated and the
result divided by 2 (the Pre
Resolution Price);
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(d)
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each
of (a) to (c) shall be recalculated but for the 20 trading days following
and including the date of the meeting of the Company’s shareholders to
consider the Trading Price Decrease Resolution (the equivalent of the
amount in (c) for the period after the meeting of the Company’s
shareholders to consider the relevant resolution shall be referred to as
the Post
Resolution Price).
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7.7 If
(the Pre Resolution Price minus the Post Resolution Price) divided by the Pre
Resolution Price is more than 0.2 then the following calculation shall be
carried out and the result of such calculation shall be the Trading Price
Decrease:
(8,080,300
plus (if any New Seller Securities are acquired) the number of New Seller
Securities) multiplied by X
X = (the
Pre Resolution Price minus the Post Resolution Price) minus (Pre Resolution
Price multiplied by 0.2)
provided
that the Trading Price Decrease shall in any event not be payable in accordance
with clauses 7.5 to 7.7 if the Post Resolution Price is greater than the
Pre Resolution Price.
Retention
of amounts in the Escrow Cash Account in respect of the Trading Price
Decrease
7.8 If
the Seller believes that there has been a Trading Price Decrease resulting from
a Trading Price Decrease Resolution (or in relation to any resolution which is
put to a meeting which is to be held less than 30 trading days prior to 31
December 2010 that there is reasonably likely to be a Trading Price
Decrease resulting from a Trading Price Decrease Resolution) it shall by 31
December 2010 give notice (a Trading Price
Decrease Notice) to WBD setting out:
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(a)
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the
fact that there has been a Trading Price Decrease (or in relation to any
resolution which is put to a meeting which is to be held less than 30
trading days prior to 31 December 2010 that there is reasonably
likely to be a Trading Price
Decrease);
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(b)
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the
resolution which has lead to the Trading Price
Decrease;
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(c)
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the
Seller’s calculation of the Trading Price Decrease provided that in
relation to any resolution which is to be put to a meeting which is to be
held less than 30 trading days prior to 31 December 2010 (solely for
the purpose of clause 7.10 and without prejudice to the obligation of
the Seller to provide the calculation of the Trading Price Decrease based
on the 20 trading days after the meeting of the Company’s shareholders to
consider the relevant resolution as soon as reasonably practicable)
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such calculation shall be made on the basis that the words “20
trading days following and including the date of the meeting of the Company’s
shareholders to consider the relevant resolution” in clause 7.6(d) are
deemed to be replaced by “such number of trading days after the announcement of
the meeting of the Company’s shareholders to consider the relevant resolution
and prior to 31 December 2010 in respect of which the Seller may
reasonably obtain trading data in relation to the Company’s securities prior to
the date of the Trading Price Decrease Notice (providing that such number of
trading days shall not exceed 20 and where such number would exceed 20, the 20
trading days immediately preceding 31 December 2010 shall be taken)” (such
amount being the Interim Trading
Price Decrease).
7.9 If:
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(a)
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the
Seller has served a Trading Price Decrease Notice;
and
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(b)
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the
Seller and WBD have agreed (for the purposes of giving notice to the
Escrow Agent of the amount to be retained in the Escrow Cash Account to
meet any liability to pay the Trading Price Decrease) the existence and
amount of the Trading Price Decrease resulting from a Trading Price
Decrease Resolution by 31
December 2010,
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the
parties shall give to the Escrow Agent such instructions as are necessary (in
the case of WBD by procuring that the Purchaser gives such instructions) to
retain the amount so agreed in the Escrow Cash Account until (i) the parties
have agreed the amount of the Trading Price Decrease resulting from a Trading
Price Decrease Resolution for the purpose of confirming the amount payable
pursuant to clause 7.5; or (ii) such amount is determined pursuant to
clause 24 and when such amount is so agreed or determined, and the parties
shall provide the Escrow Agent with such instructions as are necessary to pay
such amount to the Seller and to pay any amount in excess of such amount
retained in the Escrow Cash Account pursuant to this clause 7.9 to
WBD.
7.10 If:
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(a)
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the
Seller has served a Trading Price Decrease Notice;
and
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(b)
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the
parties have not agreed on the existence and amount of the Trading Price
Decrease resulting from a Trading Price Decrease Resolution by 31
December 2010 (including where the Trading Price Decrease Notice
includes a calculation of the Interim Trading Price
Decrease),
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the
parties shall give to the Escrow Agent such instructions as are necessary (in
the case of WBD by procuring that the Purchaser gives such instructions) to
retain the amount specified in the Trading Price Decrease Notice as the Trading
Price Decrease or Interim Trading Price Decrease resulting from a Trading Price
Decrease Resolution to be dealt with as provided in clause 7.11 or
7.12.
7.11 If:
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(a)
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the
Seller has served a Trading Price Decrease Notice resulting from a Trading
Price Decrease Resolution in relation to any resolution which is put to a
meeting which is to be held less than 30 trading days prior to 31
December 2010; and
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(b)
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the
Seller and WBD have agreed on the existence and amount of the Trading
Price Decrease resulting from a Trading Price Decrease Resolution by the
date falling 10
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Business Days after the date on which the calculation of the
Trading Price Decrease has been notified to WBD,
the
parties shall give to the Escrow Agent such instructions as are necessary (in
the case of WBD by procuring that the Purchaser gives such instructions) to pay
such amount to the Seller and to pay any amount in excess of such amount
retained in the Escrow Cash Account pursuant to clause 7.10 to
WBD.
7.12 If:
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(a)
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the
Seller has served a Trading Price Decrease Notice;
and
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(b)
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the
parties have not agreed on the existence and amount of the Trading Price
Decrease resulting from a Trading Price Decrease
Resolution:
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(i)
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by
31 December 2010 if the notified Trading Price Decrease relates to a
resolution which is put to a meeting which is to be held 30 trading days
or more prior to 31 December 2010;
or
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(ii)
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by
the date falling 10 Business Days after the date on which the calculation
of the Trading Price Decrease has been notified to WBD if the notified
Trading Price Decrease relates to a resolution which is put to a meeting
which is to be held less than 30 trading days prior to 31
December 2010,
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then such
matter shall be referred to an expert as set out in
clause 7.13.
7.13 Either
party may refer the question of whether there has been a Trading Price Decrease
resulting from a Trading Price Decrease Resolution and the amount of such
Trading Price Decrease for determination by ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A. or, if
that person is unable or unwilling to act, by such other independent firm of
chartered accountants of international standing as the parties shall agree or,
failing agreement, appointed by the President for the time being of the
Institute of Chartered Accountants in England and Wales (the Firm) on
the basis that the Firm shall be requested to make its decision within 30 days
of the acknowledgement by the Firm of its appointment. The following
provisions shall apply once the Firm has been appointed:
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(a)
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parties
shall each prepare a written statement within 5 days of the Firm’s
appointment on the matters in dispute which (together with the relevant
supporting documents) shall be submitted to the Firm for determination and
copied at the same time to the
other;
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(b)
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neither
party shall be entitled to make further statements or submissions except
insofar as the Firm so requests;
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(c)
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the
Firm shall act as an expert (and not as an arbitrator) in making its
determination which shall be final and binding on the parties for the
purposes of determining if funds should be retained in the Escrow Cash
Account but not for the purposes of determining if there has been a
Trading Price Decrease resulting from a Trading Price Decrease Resolution
or the amount of any such Trading Price Decrease and, without prejudice to
any other rights which they may respectively have under this Agreement,
the parties expressly waive, to the extent permitted by law, any rights of
recourse they may otherwise have to challenge it for such
purpose;
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(d)
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each
party shall each be responsible for its own costs in connection with the
expert process save that the fees and expenses of the Firm shall be borne
equally between them;
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(e)
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WBD
shall procure that the Firm shall be given reasonable access to the
relevant books and records of the Company for the purposes of making its
determination.
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7.14 If
the Firm determines that there has been a Trading Price Decrease resulting from
a Trading Price Decrease Resolution, the amount of such decrease as determined
by it (subject to a maximum of the amount of the Trading Price Decrease or
Interim Trading Price Decrease set out in the Trading Price Decrease Notice)
shall be retained in the Escrow Cash Account pending agreement by the parties or
a determination pursuant to clause 24 in respect of the existence and
amount of the Trading Price Decrease and the parties shall give to the Escrow
Agent such instructions as are necessary (in the case of WBD by procuring that
the Purchaser gives such instructions) to retain the amount so determined by the
Firm in the Escrow Cash Account and to return to WBD any amount retained in such
account pursuant to clause 7.10 in excess of the amount of the Trading
Price Decrease as determined by the Firm until:
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(a)
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the
parties have agreed the amount of the Trading Price Decrease resulting
from a Trading Price Decrease Resolution;
or
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(b)
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such
amount is determined pursuant to
clause 24,
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and when
such amount is so agreed or determined the parties shall provide the Escrow
Agent with such instructions as are necessary to pay such amount to the Seller
and to pay any amount in excess of such amount retained in the Escrow Cash
Account pursuant to this clause 7.14 to WBD.
7.15 Clause 7.8
to 7.14 shall apply for the purposes of determining the amount if any to be
retained in the Escrow Cash Account in relation to any alleged Trading Price
Decrease and are without prejudice to the obligations of WBD to pay the full
amount of any Trading Price Decrease as provided for in clause 7.5 or the
obligations of the parties to determine the Trading Price Decrease as provided
for in clause 7.6 and 7.7.
Right
to acquire securities
7.16 If
after the date of this Agreement, the holder of the Ordinary Shares or ADRs has
a right to acquire securities to be issued by the Company, the Seller may pay to
the Escrow Agent an amount (the New Seller
Securities Purchase Price) equal to the amount required to acquire all or
some of such securities (the New Seller
Securities) and:
|
(a)
|
WBD
shall simultaneously place an amount (the Escrow New
Securities Amount) equal to New Seller Securities Purchase Price
into the Escrow Cash Account;
|
|
(b)
|
the
parties shall procure that the Escrow Agent shall acquire the New Seller
Securities (which shall then be deemed to be Ordinary Shares or ADRs for
the purposes of this Agreement) ;
and
|
|
(c)
|
at
Closing, WBD shall procure that the Purchaser shall acquire the New Seller
Securities in exchange for an amount equal to the New Seller Securities
Purchase Price which shall be satisfied by the release of the Escrow New
Securities Amount to the Seller.
|
- 10
-
Negative
covenants
7.17 WBD
shall procure that no member of the WBD Group shall take any action which would
delay or prevent:
|
(a)
|
the
closing of the Unimilk Transaction;
|
|
(b)
|
the
completion of the sale of the Securities under this
Agreement.
|
7.18 The
Seller shall procure that no member of the Seller Group shall take any action
before Closing or the termination of this Agreement which would delay or
prevent:
|
(a)
|
FAS
Consent and AMC Consent being given to the Unimilk
Transaction;
|
|
(b)
|
the
completion of the sale of the Securities under this
Agreement.
|
8. No Rights of
Rescission or Termination
8.1 Save
as set out in clauses 8.2 and 8.3, no party shall be entitled to rescind or
terminate this Agreement in any circumstances whatsoever (whether before or
after Closing). This shall not exclude any liability or other remedy
for (or remedy in respect of) fraudulent misrepresentation.
8.2 If
the Unconditional Date has not occurred by the Long Stop Date either (a) the
Seller or (b) WBD may terminate this Agreement (other than the Surviving
Provisions) by notice to WBD or the Seller respectively.
8.3 If:
|
(a)
|
the
Seller fails to transfer the ADRs and the Ordinary Shares into the Escrow
ADR Account and the Escrow Share Account respectively by 31
August 2010; or
|
|
(b)
|
WBD
fails to procure that the Purchaser transfers an amount equal to the Price
into the Escrow Cash Account by 31
August 2010,
|
WBD in
the case of (a) or the Seller in the case of (b) may terminate this Agreement by
notice to the other party prior to the date on which such other party has (i)
transferred the ADRs and the Ordinary Shares into the Escrow ADR Account and the
Escrow Share Account in the case of the Seller; and (ii) procured the transfer
of the Price into the Escrow Cash Account in the case of WBD.
8.4 In
the event of termination of this Agreement pursuant to clause 8.2 and 8.3,
no party (nor any of its Affiliates) shall have any claim under this Agreement
of any nature against any other party (or any of its Affiliates) under this
Agreement except in respect of any rights and liabilities which have accrued
before termination or under any of the Surviving Provisions.
9. Payments
9.1 Any
payment to be made pursuant to this Agreement by the Purchaser to the Seller
shall be made to the Seller’s Bank Account (save that where a payment is to be
made pursuant to the Escrow Agreement it shall be made as set out in that
agreement).
- 11
-
9.2 Any
payment to be made pursuant to this Agreement by the Seller shall be made to
WBD’s Bank Account.
9.3 Payment
under clause 9.1 and 9.2 shall be in immediately available funds by
electronic transfer on the due date for payment. Receipt of the
amount due shall be an effective discharge of the relevant payment
obligation.
9.4 If
any sum due for payment in accordance with this Agreement is not paid on the due
date for payment, the person in default shall pay Default Interest on that sum
from but excluding the due date to and including the date of actual payment
calculated on a daily basis, on the basis of the actual number of days elapsed
and a 365-day year.
10. Announcements
10.1 The
parties shall have a right to make an announcement or announcements in
connection with this Agreement in the form set out in Schedule 3 (or using
part thereof) and the initial announcement in such form by each party shall be
made on the day following the date of this Agreement.
10.2 Save
as set out in clause 10.1, no party (nor any of their respective
Affiliates) shall make any announcement or issue any circular in connection with
the existence or subject matter of this Agreement (or any other Transaction
Document) without the prior written approval of the others.
10.3 The
restriction in clause 10.2 shall not apply to the extent that the
announcement or circular is required by law, by any stock exchange or any
regulatory or supervisory body or authority of competent jurisdiction, whether
or not the requirement has the force of law. If this exception
applies, the party making the announcement or issuing the circular shall so far
as permitted by law consult with the other party in advance as to its form,
content and timing.
11. Confidentiality
11.1 For
the purposes of this clause 11:
|
(a)
|
Confidential
Information means information relating to the provisions of, and
negotiations leading to, this Agreement and the other Transaction
Documents and includes written information and information transferred or
obtained orally, visually, electronically or by any other means;
and
|
|
(b)
|
Representatives
means, in relation to a party, its respective Affiliates and the
directors, officers, employees, agents, advisers, accountants and
consultants of that party and/or of its respective
Affiliates.
|
11.2 Each
of the Seller and WBD shall (and shall ensure that each of its Representatives
shall) maintain the Confidential Information in confidence and not disclose any
Confidential Information to any person except (i) as this clause 11 permits
or (ii) as the other party approves in writing.
11.3 Clause 11.2
shall not prevent disclosure by a party or its Representatives to the extent it
can demonstrate that:
- 12
-
|
(a)
|
disclosure
is required by law or by any stock exchange or any regulatory,
governmental or antitrust body (including any tax authority) having
applicable jurisdiction (provided that, so far as permitted by such law or
body, the disclosing party shall first inform the other party of its
intention to disclose such information and take into account the
reasonable comments of the other
party);
|
|
(b)
|
disclosure
is of Confidential Information which has previously become publicly
available other than through that party’s fault (or that of its
Representatives);
|
|
(c)
|
disclosure
is required for the purpose of any arbitral or judicial proceedings
arising out of this Agreement (or any other Transaction
Document).
|
11.4 The
Seller and WBD each undertakes that it (and its Affiliates) shall only disclose
Confidential Information to Representatives if it is reasonably required for
purposes connected with this Agreement and only if the Representatives are
informed of the confidential nature of the Confidential
Information.
12. Assignment
Unless
the Seller and WBD specifically agree in writing, no person shall assign,
transfer, charge or otherwise deal with all or any of its rights under this
Agreement nor grant, declare, create or dispose of any right or interest in
it. Any purported assignment, transfer, charge, dealing, grant,
declaration, creation or disposal of any right or interest in contravention of
this clause 12 shall be void.
13. Further
Assurances
13.1 The
Seller and WBD shall execute (or procure the execution of (in the case of WBD
including procuring the execution by the Purchaser of)) such further documents
as may be required by law or be necessary to implement and give effect to this
Agreement.
13.2 The
Seller and WBD shall procure that its Affiliates comply with any obligations
under this Agreement which are expressed to apply to any such
Affiliates.
14. Costs
14.1 Subject
to clause 14.2 and except as otherwise provided in this Agreement (or any
other Transaction Document), the Seller and WBD shall each be responsible for
its own costs, charges and other expenses (including those of its Affiliates)
incurred in connection with the Proposed Transaction.
14.2 WBD
shall bear all stamp duty, notarisation fees or other documentary transfer or
transaction duties, and all stamp duty reserve tax, stamp duty land tax and any
other transfer taxes, including in each case any related interest or penalties,
arising as a result of this Agreement or of any of the other Transaction
Documents.
14.3 The
fees payable under the Escrow Agreement and any transfer fees payable to a
custodian, depositary or registrar and relating to the transfer of the
Securities pursuant to this Agreement shall be borne by the Seller and WBD in
equal parts.
- 13
-
15. Notices
15.1 Any
notice in connection with this Agreement shall be in writing in English and
delivered by hand, fax or courier using an internationally recognised courier
company. A notice shall be effective upon receipt and shall be deemed
to have been received:
|
(a)
|
at
the time of delivery, if delivered by hand, or courier;
or
|
|
(b)
|
at
the time of transmission if delivered by
fax,
|
provided
that in either case, where delivery occurs outside Working Hours, notice shall
be deemed to have been received at the start of Working Hours on the next
following Business Day.
15.2 The
addresses and fax numbers of the parties for the purpose of clause 15.1
are:
|
Seller
|
Address:
|
Fax:
|
|
For
the attention of:
|
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
▇▇▇
▇ ▇▇ ▇▇ ▇▇ ▇▇
|
|
Head
of Back Office,
▇▇▇▇▇▇▇▇▇▇ Vandepaer |
||
|
With
a copy to:
|
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
▇▇▇
▇ ▇▇ ▇▇ ▇▇ ▇▇
|
|
The
General Counsel
|
||
|
WBD
|
Address:
|
Fax:
|
|
For
the attention of:
|
109028
Russia, Moscow,
Solianka st. 13, bld.2 |
▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
|
|
▇▇▇▇
▇. ▇▇▇▇▇
(WBD
Foods OJSC CEO)
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇
(WBD
Foods OJSC CFO)
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
(WBD
Foods OJSC CLO)
|
16. Conflict with
other Agreements
If there
is any conflict between the terms of this Agreement and any other agreement,
this Agreement shall prevail (as between the parties to this Agreement and as
between any members of the Seller Group and any members of the WBD Group) unless
(i) such other agreement expressly states that it overrides this Agreement in
the relevant respect and (ii) the Seller and WBD are either also parties to that
other agreement or otherwise expressly agree in writing that such other
agreement shall override this Agreement in that respect.
- 14
-
17. Whole Agreement
This
Agreement together with the other Transaction Documents sets out the whole
agreement between each of the parties in respect of the Proposed Transaction and
supersedes any prior agreement (whether oral or written) relating to the
Proposed Transaction. It is agreed that:
|
(a)
|
no
party shall have any claim or remedy in respect of any statement,
representation, warranty or undertaking made by or on behalf of any other
party (or any of its Connected Persons) in relation to the Proposed
Transactions which is not expressly set out in this Agreement or any other
Transaction Document;
|
|
(b)
|
any
terms or conditions implied by law in any jurisdiction in relation to the
Proposed Transaction are excluded to the fullest extent permitted by law
or, if incapable of exclusion, any right, or remedies in relation to them
are irrevocably waived;
|
|
(c)
|
the
only right or remedy of a party in relation to any provision of this
Agreement or any other Transaction Document shall be for breach of this
Agreement or the relevant Transaction Document;
and
|
|
(d)
|
no
party (or any of its Connected Persons) shall owe any duty of care or have
any liability in tort to any other party (or its respective Connected
Persons) in relation to the Proposed
Transaction
|
provided
that this clause 17 shall not exclude any liability for (or remedy in
respect of) fraudulent misrepresentation. Each party agrees to the
terms of this clause 17 on its own behalf and as agent for each of its
Connected Persons. For the purpose of this clause 17, Connected
Persons means (in relation to a party) its Affiliates and the officers,
employees, agents and advisers of that party or any of its
Affiliates.
18. Waivers, Rights
and Remedies
18.1 Except
as expressly provided in this Agreement, no failure or delay by any party in
exercising any right or remedy relating to this Agreement or any of the
Transaction Documents shall affect or operate as a waiver or variation of that
right or remedy or preclude its exercise at any subsequent time. No
single or partial exercise of any such right or remedy shall preclude any
further exercise of it or the exercise of any other remedy.
18.2 The
Seller shall not be liable for any claim for a breach of this Agreement unless
the Seller receives from WBD a written notice of such claim within three (3)
years of the Closing Date.
18.3 The
aggregate amount of the liability of the Seller for:
|
(a)
|
all
claims under this Agreement, including all claims relating to the Seller’s
title to the Ordinary Shares and ADRs (other than any claims relating to
such title which result from matters occurring prior to the date on which
the Seller acquired such Securities but including any title claims which
relate to the Seller’s acquisition of such Securities), shall not exceed
an amount equal to the Price (less any amounts claimed under
clause 18.3(b));
|
|
(b)
|
all
claims under this Agreement relating to the Seller’s title to the Ordinary
Shares and ADRs which result from matters occurring prior to the date on
which the Seller acquired such Securities (but excluding any title claims
which relate to the Seller’s
|
- 15
-
acquisition
of such Securities which are subject to the limitation in clause 18.3(a))
shall be 20% of the Price (less any amounts claimed under
clause 18.3(a)).
19. Counterparts
This
Agreement may be executed in any number of counterparts, and by each party on
separate counterparts. Each counterpart is an original, but all
counterparts shall together constitute one and the same
instrument. Delivery of an executed counterpart signature page of
this Agreement by e-mail (PDF) or telecopy shall be as effective as delivery of
a manually executed counterpart of this Agreement.
20. Variations
No
amendment of this Agreement shall be valid unless it is in writing and duly
executed by or on behalf of all of the parties to it.
21. Invalidity
Each of
the provisions of this Agreement is severable. If any such provision
is held to be or becomes invalid or unenforceable in any respect under the law
of any jurisdiction, it shall have no effect in that respect and the parties
shall use all reasonable efforts to replace it in that respect with a valid and
enforceable substitute provision the effect of which is as close to its intended
effect as possible.
22. No Third Party
Enforcement Rights
A person
who is not a party to this Agreement shall have no right under any statutory
provision to enforce any of its terms.
23. No Set
Off
23.1 Unless
otherwise expressly stated in this Agreement, any sum payable by a party (the
Payor) to
the other party (the Payee)
pursuant to this Agreement (including pursuant to any claim) shall be made in
full without any extrajudicial set-off or counterclaim howsoever arising and
shall be made free and clear of and without deduction or withholding of any kind
(including any deduction for or on account of any Taxation), except for
deduction or withholding for or on account of any Taxation required by
applicable law.
23.2 If
the Payor is required by applicable law to make any deduction or withholding for
or on account of Taxation in relation to any sum payable pursuant to this
Agreement, such sum shall be increased to the extent necessary to ensure that
after making such deduction or withholding the Payee receives a sum equal to the
amount it would have received had such deduction or withholding not been
necessary.
- 16
-
24. Governing Law and
Jurisdiction
24.1 This
Agreement and any non-contractual obligations arising out of or in connection
with this Agreement shall be governed by, and interpreted in accordance with,
English law.
Normal
arbitration
24.2 In
respect of any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination (a Dispute),
such Dispute may be referred by the Seller or WBD to and finally resolved by
arbitration under the LCIA Rules (the Rules),
which Rules are deemed to be incorporated by reference into this
clause 24.2.
24.3 There
shall be three arbitrators. Each party shall each nominate one
arbitrator. The third arbitrator, who shall act as Chairman of the
arbitral tribunal, shall be appointed by the LCIA in accordance with the
Rules.
24.4 The
seat, or legal place, of arbitration shall be London, England.
24.5 The
language to be used in the arbitral proceedings shall be English.
24.6 The
arbitral award may include reasonable legal fees, expert fees and out-of-pocket
expenses of the prevailing party.
Fast
track
24.7 Where
a Dispute arises which has not already been referred to the LCIA under
clause 24.2 either party may serve formal written notice on the other party
stating that a “Fast-Track Dispute” has arisen (a Notice of
Fast-Track Dispute).
24.8 If
a Notice of Fast-Track Dispute is served as provided for in clause 24.7,
the Fast-Track Dispute shall be immediately referred in writing by the person
serving such notice to arbitration in accordance with the provisions of
clauses 24.9 to 24.10 and the provisions of such clauses shall override the
provisions of any other sub-clause in this clause 24 to the extent there is
any conflict or inconsistency between them. Where there is no
conflict, such other provisions of clause 24 shall apply.
24.9 The
Fast-Track Dispute shall be finally resolved by a sole arbitrator under the
Rules. The parties shall jointly nominate the sole arbitrator,
provided, however, that in the event the parties do not agree to the nomination
of the sole arbitrator within 14 days of the date of the Notice of Fast Track
Dispute, the sole arbitrator shall be appointed in accordance with
Article 9 of the Rules. For purposes of Article 9, the
Parties consent to the expedited formation of the Arbitral Tribunal, including
the abridgment of deadlines provided in Article 9.3.
24.10 In
the Fast-Track Arbitration, the written stage of the proceedings shall be
organised in accordance with Article 15.2 to 15.8 of the
Rules.
24.11 Subject
to clause 24.13, the parties expressly waive their rights of recourse to
the courts of England and Wales or any other court of competent jurisdiction,
including their rights under sections 45 and 69 of the Arbitration ▇▇▇
▇▇▇▇, to determine any points of law arising in the course of, or out of an
award made in, any proceedings conducted under this Agreement.
- 17
-
24.12 In
order to facilitate the comprehensive resolution of related disputes, all claims
between any of the parties that arise out of or in connection with this
Agreement or any other Transaction Document may be brought in a single
arbitration.
24.13 Nothing
in this Agreement shall prevent a party from seeking provisional measures from
any court of competent jurisdiction, and any such request shall not be deemed
incompatible with the agreement to arbitrate or a waiver of the right to
arbitrate. Without prejudice to such provisional remedies in aid of
arbitration as may be available under the jurisdiction of a court or otherwise,
the arbitral tribunal shall have full authority to grant provisional remedies
and to award damages for the failure of a party to respect a court’s or the
tribunal’s orders to that effect.
Notice
of process
24.14 Any
notification, communication or service of any legal process or other
communication under this clause 24 shall be effected in the manner
specified in clause 15.
Process
agent
24.15 Within
five (5) Business Days of the date of this Agreement each of the parties shall
irrevocably designate, appoint and empower a process agent (and shall notify the
other party of the address and fax number of such process agent) with respect to
any action or proceeding to receive, on their behalf and in respect of their
property, service of any and all legal papers, summonses, notices and documents
which may be served in any action or proceeding, including arbitration
proceedings under this clause 24 and court proceedings in support of
arbitration proceedings under this clause 24.
24.16 Each
party agrees to maintain the appointment of its process agent (and any
replacement process agent appointed pursuant to clause 24.17) and it shall
not withdraw the appointment of any such process agent until its replacement
shall have been validly appointed and the name and address of the replacement
process agent notified to the other party.
24.17 If
a party’s process agent at any time ceases for any reason to act as such, his
appointor shall appoint a replacement process agent with an address for service
in England or Wales, and shall notify the other party of the name and address of
the replacement process agent. If a party fails to appoint a
replacement process agent or notify the other party of the name and address of a
replacement process agent as required by this clause 24, the other party
shall be entitled by notice to the defaulting party to appoint such a
replacement process agent to act on the defaulting party’s
behalf. The defaulting party shall bear all the costs and expenses of
the replacement process agent appointed by the other party in these
circumstances.
24.18 Each
party may, by notice of at least five (5) Business Days to the other party,
change the address of its process agent to another address in England and
Wales.
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SCHEDULE 1
SELLER
WARRANTIES
1. The
Seller will on the date of this Agreement have obtained all corporate
authorisations required to empower it to enter into and perform its obligations
under this Agreement and/or any Transaction Document to which the Seller is a
party.
2. The
person signing this Agreement on behalf of the Seller is duly authorised to do
so.
3. This
Agreement and/or any Transaction Document to which the Seller is a party which
is to be entered into by the Seller will, when executed, constitute valid,
binding and legal obligations of the Seller.
4. Entry
into and performance by the Seller of this Agreement and/or any Transaction
Document to which it is a party will not (i) breach any provision of its
memorandum and articles of association, by-laws or equivalent constitutional
documents; or (ii) result in a breach of any order, decree or judgment of any
court or any governmental or regulatory authority, where (in either case) the
breach would adversely affect to a material extent its ability to enter into or
perform its obligations under this Agreement.
5. The
Seller is validly incorporated, in existence and duly registered under the laws
of its jurisdiction of incorporation and has full power to conduct its business
as conducted at the date of this Agreement.
6. The
Seller is not insolvent or bankrupt under the laws of its jurisdiction of
incorporation, unable to pay its debts as they fall due or has proposed or is
liable to any arrangement (whether by court process or otherwise) under which
its creditors (or any group of them) would receive less than the amounts due to
them. There are no proceedings in relation to any compromise or
arrangement with creditors or any winding up, bankruptcy or insolvency
proceedings concerning the Seller.
7. The
Seller is the sole beneficial owner of the Securities and has the right to
transfer legal and beneficial title to the Securities to the Purchaser at
Closing according to this Agreement, in each case free from any Encumbrances or
any commitment by the Seller to create any Encumbrance.
- 19
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SCHEDULE 2
WBD
WARRANTIES
1. WBD
has and the Purchaser will within seven (7) days of the date of this Agreement
have obtained all corporate authorisations and each of the Purchaser and WBD has
obtained all other governmental, statutory, regulatory or other consents,
licences or authorisations required to empower it to enter into and perform its
obligations under this Agreement and/or any Transaction Document to which it is
a party. No FAS Consent or Strategic Consent (or interested party
approval under Russian law) is required for the sale and purchase of the
Securities pursuant to this Agreement or any Transaction Document.
2. The
person signing this Agreement on behalf of WBD is duly authorised to do
so.
3. This
Agreement and/or any Transaction Document to which WBD or the Purchaser is a
party will, when executed, constitute valid, binding and legal obligations of
such person.
4. Entry
into and performance by (i) WBD of this Agreement and (ii) WBD and the Purchaser
of any Transaction Document to which it is a party will not (aa) breach any
provision of its memorandum and articles of association, by-laws or equivalent
constitutional documents; or (bb) result in a breach of any laws or regulations
in its jurisdiction of incorporation or of any order, decree or judgment of any
court or any governmental or regulatory authority, where (in either case) the
breach would adversely affect to a material extent its ability to enter into or
perform its obligations under this Agreement.
5. Each
of WBD and the Purchaser is validly incorporated, in existence and duly
registered under the laws of its jurisdiction of incorporation and has full
power to conduct its business as conducted at the date of this
Agreement. The Purchaser is a wholly owned subsidiary of
WBD.
6. Neither
WBD nor the Purchaser is insolvent or bankrupt under the laws of its
jurisdiction of incorporation, unable to pay its debts as they fall due or has
proposed or is liable to any arrangement (whether by court process or otherwise)
under which its creditors (or any group of them) would receive less than the
amounts due to them. There are no proceedings in relation to any
compromise or arrangement with creditors or any winding up, bankruptcy or
insolvency proceedings concerning WBD or the Purchaser.
7. Entry
into and performance by (i) WBD of this Agreement and (ii) WBD and the Purchaser
of any Transaction Document to which it is a party will not violate applicable
securities laws. WBD is not entering into this Agreement to create
actual or apparent trading activity in its securities or to raise, depress or
otherwise manipulate the price of its securities.
8. The
transfer of the Securities to the Purchaser will not constitute or lead to a
breach of any applicable laws by WBD, the Purchaser or any of either of their
Affiliates.
9. WBD
or its parent company has available cash to ensure that WBD can procure that the
Purchaser can on or before 31 August 2010 pay the Price into the Escrow
Cash Account.
- 20
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SCHEDULE 3
FORM
OF ANNOUNCEMENT
Part
A – Form of WBD announcement
WIMM-▇▇▇▇-▇▇▇▇
FOODS ANNOUNCES AGREEMENT TO
ACQUIRE
DANONE’S SHAREHOLDING
[DRAFT
– NOT FOR DISTRIBUTION]
Moscow,
Russia – August 12, 2010 – Wimm-▇▇▇▇-▇▇▇▇ Foods OJSC [NYSE: WBD]
today announced that the Company has reached an agreement to purchase Danone’s
18.4% shareholding in Wimm-▇▇▇▇-▇▇▇▇ Foods OJSC for the total consideration of
US$470 million. The stake includes both local shares and
ADRs. The transaction will be funded from existing resources and will
not require additional financing.
The sale
of the shares by Danone is conditional upon the appropriate governmental
approvals of the merger of Danone’s Fresh Dairy Product businesses in the CIS
region and Unimilk.
Commenting
on the announcement, ▇▇▇▇ ▇▇▇▇▇, CEO of Wimm-▇▇▇▇-▇▇▇▇ Foods,
said: “We are very pleased to announce the acquisition of Danone’s
stake in our company. This agreement represents the amicable
conclusion of Danone’s investment in our company, an investment Danone has held
since our IPO in February 2002. This announcement and the
outright purchase of our own shares reflect our confidence in the fundamentals
of the business and our strategy for the future.”
For
further enquiries contact:
▇▇▇▇▇▇
▇▇▇▇▇
Wimm-▇▇▇▇-▇▇▇▇
Foods OJSC
Solyanka,
13, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
e-mail: ▇▇▇▇▇@▇▇▇.▇▇
Some of
the information contained in this press release may contain projections or other
forward-looking statements regarding future events or the future financial
performance of Wimm-▇▇▇▇-▇▇▇▇ Foods OJSC, as defined in the safe harbor
provisions of the U.S. Private Securities Litigation Reform Act of
1995. We wish to caution you that these statements are only
predictions and that actual events or results may differ
materially. We do not intend to update these statements to conform
them to actual results. We refer you to the documents Wimm-▇▇▇▇-▇▇▇▇
Foods OJSC files from time to time with the U.S. Securities and Exchange
Commission, specifically, the Company’s most recent
Form 20-F. These documents contain and identify important
factors, including those contained in the section captioned “Risk Factors” in
our Form 20-F, that could cause the actual results to differ materially
from those
- 21
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contained
in our projections or forward-looking statements, including, among others,
potential fluctuations in quarterly results, and risks associated with our
competitive environment, acquisition strategy, ability to develop new products
or maintain market share, brand and company image, operating in Russia,
volatility of stock price, financial risk management, and future
growth.
NOTES
TO EDITORS
Wimm-▇▇▇▇-▇▇▇▇
Foods OJSC was founded in 1992 and is the largest manufacturer of dairy products
and a leading producer of juices and beverages in Russia and the
CIS. The company produces dairy products (main brands
include: Domik v Derevne, Neo, 2Bio, 33 Korovy, Chudo and more),
juices (J7, Lubimy Sad, 100% Gold), Essentuki mineral water and Agusha baby
food. The company has 37 manufacturing facilities in Russia, Ukraine,
Kyrgyzstan, Uzbekistan and Georgia with over 18,000 employees. In
2005, Wimm-▇▇▇▇-▇▇▇▇ became the first Russian dairy producer to receive approval
from the European Commission to export its products into the European
Union.
In 2009,
Standard & Poor’s Governance Services confirmed WBD’s governance,
accountability, management, metrics, and analysis (GAMMA) score “GAMMA-
7+”. The score reflects the effective work of the Board of Directors
and, in particular, the real influence of independent directors in the
decision-making process and the adherence of the controlling shareholders to the
highest standards of corporate governance.
- 22
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Part
B – form of Seller announcement
▇▇▇▇▇, ▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
a conclu un accord avec Wimm ▇▇▇▇ ▇▇▇▇ pour la vente de
sa
participation de 18,4% dans la société russe
Danone
a conclu un accord avec Wimm ▇▇▇▇ ▇▇▇▇ Foods (« WBD ») au terme duquel ce
dernier va acquerir pour un montant de 470 millions de dollars l’ensemble des
actions ordinaires et « American Depositary Receipts » (ADR) détenues par Danone
et représentant 18,4% du capital de Wimm ▇▇▇▇ ▇▇▇▇.
Cet
accord fait suite à l’annonce récente de la joint-venture entre Danone et
Unimilk dans la zone CEI.
La vente
prendra effet, et sera réalisée, dès que Danone aura reçu les approbations
réglementaires requises pour la fusion de ses activités Produits Laitiers Frais
dans les pays de la zone CEI avec celles d’Unimilk.
A
propos de Danone
Danone
est l’une des entreprises les plus dynamiques du secteur
alimentaire. Sa mission est d’apporter la santé par l’alimentation au
plus grand nombre. Les produits de Danone sont présents sur les 5
continents dans plus de 120 pays. En 2009, Danone qui compte 160
sites de production et environ 80 000 collaborateurs, a enregistré un chiffre
d’affaires de 15 milliards d’euros. Danone bénéficie de positions de
leader de l’alimentation santé autour de quatre métiers : les
produits laitiers frais (n°1 mondial) et les eaux (n°2 sur le marché de l’eau
conditionnée), l’alimentation infantile (n°2 mondial) et la nutrition
médicale. Coté sur Euronext Paris, Danone est également classé dans
les principaux indices de responsabilité sociale : Dow ▇▇▇▇▇
Sustainability Index Stoxx et World, ASPI Eurozone et Ethibel Sustainability
index.
- 23
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Paris,
August 12th 2010
Danone
has reached agreement with Wimm ▇▇▇▇ ▇▇▇▇
to sell back its 18.4% stake in the Russian company
to sell back its 18.4% stake in the Russian company
Danone
has reached agreement with Wimm ▇▇▇▇ ▇▇▇▇ Foods (“WBD”) whereby WBD will acquire
all ordinary shares and ADRs held by Danone, representing an 18.4% stake in WBD,
for a total consideration of USD 470 million.
The
agreement follows the recent announcement of the joint-venture between Danone
and Unimilk in the CIS region.
The sale
will become effective, and close, upon Danone having received the necessary
regulatory approvals for the merger of its CIS operations with
Unimilk.
About
Danone
Danone is
a Fortune 500 company and one of the most successful healthy food companies in
the world. Its mission is to bring health through food to as many
people as possible. Fulfilling this mission is a major contributor to
Danone’s continuous strong growth. Danone, with 160 plants and around
80,000 employees, has a presence in all five continents and over 120
countries. In 2009, Danone recorded € 15 billion in
sales. Danone enjoys leading positions on healthy food in four
businesses: fresh dairy products (n°1 worldwide), water (n° 2 on the
packaged water market), baby nutrition (n°2 worldwide) and medical
nutrition. Listed on Euronext Paris, Danone is also ranked among the
main indices of social responsibility: Dow ▇▇▇▇▇ Sustainability Index
Stoxx and World, ASPI Eurozone and Ethibel Sustainability index.
- 24
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SCHEDULE 4
DEFINITIONS
AND INTERPRETATION
1. Definitions. in
this Agreement, the following words and expressions shall have the following
meanings:
ADRs means
17,421,200 American Depositary Receipts (ISIN: US97263M1099) issued
by the US Depositary in respect of 4,355,300 ordinary registered shares of the
Company, each with a par value of 20 Roubles;
Affiliate
means, in relation to any party, any subsidiary or parent company of that party
and any subsidiary of any such parent company, in each case from time to
time;
Agreed
Form means, in relation to a document, the form of that document as
initialled on the date of this Agreement for the purpose of identification by or
on behalf of the Seller and WBD (in each case with such amendments as may be
agreed in writing by or on behalf of the Seller and WBD);
AMC
Consent means the merger consent and the consent for a concerted action
given by the Antimonopoly Committee of Ukraine or any successor of such body in
accordance with the Law of Ukraine ‘On Protection of Economic Competition’ dated
No. 2210-111, as amended;
Business
Day means a day other than a Saturday or Sunday or public holiday in
France, the United States, Cyprus, the UK or Russia on which banks are open in
Paris, New York, Cyprus, London and Moscow for general commercial
business;
CIS means
Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia
and Ukraine;
Company
means Open Joint Stock Company Wimm-▇▇▇▇-▇▇▇▇ Foods, an open joint stock company
incorporated in the Russian Federation, main state registration number (OGRN)
1037700236738, with its registered address at Yauzskiy bulvar 16/15, room 306,
▇▇▇▇▇▇, ▇▇▇▇▇▇, Russian Federation;
Closing
means completion of the sale and purchase of the Securities in accordance with
the provisions of this Agreement;
Closing
Date has the meaning given in clause 4.1;
Conditions
means the conditions to Closing set out in clause 3.1 and Condition means
either of them;
Confidential
Information has the meaning given in clause 11.1;
Default
Interest means the percentage rate which is the aggregate of LIBOR and
5.0% per annum. LIBOR means the British Bankers’ Association Interest
Settlement Rate for US dollars and for the period of 6 months displayed on the
appropriate page of the Reuters screen as at or about noon on the day when the
respective amount becomes payable under this Agreement. If at or
about noon on that day the Reuters screen is unavailable, LIBOR shall be
determined by reference to quotations from The Royal Bank of Scotland plc, HSBC
Bank plc, Barclays Bank plc and Lloyds TSB Bank plc.;
Dispute
has the meaning given in clause 24.2;
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Encumbrance
means any mortgage, charge, equitable interest, option, pledge, lien,
assignment, hypothecation, right of first refusal, right of pre-emption,
security interest, title retention or any other security arrangement or other
encumbrance or right exercisable by a third party having a similar effect,
whether arising by operation of law or contract, save for any such matter
arising under the charter of the Company;
Escrow
Agent means ▇.▇. ▇▇▇▇▇▇ Chase Bank, N.A., London Branch;
Escrow
Agreement means the Escrow Agreement entered between the Escrow Agent,
the Purchaser and the Seller in relation to inter alia the Price, the Ordinary
Shares and the ADRs;
Escrow ADR
Account shall have the meaning given to it in the Escrow
Agreement;
Escrow Cash
Account shall have the meaning given to it in the Escrow
Agreement;
Escrow New
Securities Amount has the meaning given to it in
clause 7;
Escrow Share
Account shall have the meaning given to it in the Escrow
Agreement;
FAS
Consent means the consent given by the Federal Antimonopoly Service of
the Russian Federation or any successor to such body in accordance with Federal
Law dated 26 July 2006 No. 135-FZ On competition protection;
Governmental
Entity means any supra national, national, state, municipal or local
government (including any subdivision, court, administrative agency or
commission or other authority thereof) or any quasi governmental or private body
exercising any regulatory, taxing, importing or other governmental or quasi
governmental authority, including the European Union;
Governmental
Approval means any consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity;
Long Stop
Date means 31 December 2010;
New Seller
Securities Purchase Price has the meaning given to it in
clause 7;
New Seller
Securities has the meaning given to it in clause 7;
Notice of Fast
Track Dispute has the meaning given to it in clause 24;
Ordinary
Shares means 3,725,000 ordinary registered shares of the Company (state
registration number of the issue of the shares 1-01-06005-A), each with a par
value of 20 Roubles;
parent
company means any company which holds a majority of the voting rights in
another company, or which is a member of another company and has the right to
appoint or remove a majority of its board of directors, or which is a member of
another company and controls a majority of the voting rights in it under an
agreement with other members, in each case whether directly or indirectly
through one or more companies;
Payee has
the meaning given to it in clause 23;
Payor has
the meaning given to it in clause 23;
- 26
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Proposed
Transaction means the transactions contemplated by this Agreement and the
Transaction Documents;
Purchaser
means Dicastor Holdings Limited a company incorporated in Cyprus with registered
number 270485 and its address at Avlonos, ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇;
Representatives
has the meaning given in clause 11.1;
Rules has
the meaning given in clause 24.2;
Russian
Depositary means the person specified as such in the Escrow
Agreement;
Securities
means the Ordinary Shares and ADRs;
Seller
Group means the Seller and its Affiliates from time to time;
Seller’s
Parent means DANONE SA, a public limited company (société anonyme)
incorporated under the laws of France, whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, registered with the Paris Commercial
and Companies Register under number 552 032 534
Seller
Warranties means the warranties set out in Schedule 1;
Seller’s Bank
Account means the Seller’s bank account the details of which will be
notified by the Seller to WBD not later than 5 days prior to the date on which
any payment is required to be made into such account (and/or such other
account(s) as the Seller may thereafter notify in writing to WBD);
Strategic
Consent means the consent given by Government Commission for Control of
Foreign Investments in the Russian Federation in accordance with Federal law No.
57-FZ dated 29 April 2008 On the procedure for making foreign
investments in companies which are of strategic importance for ensuring the
country’s defence and state security;
subsidiary
and subsidiaries
means any company in relation to which another company is its parent
company;
Surviving
Provisions means clauses 7.5 to 7.15, 10 (Announcements), 11
(Confidentiality), 12 (Assignment), 14 (Costs), 15 (Notices), 16 (Conflict
with other Agreements), 17 (Whole Agreement), 18 (Waivers, Rights and Remedies),
20 (Variations), 21 (Invalidity), 22 (No Third Party Enforcement Rights), 24
(Governing Law and Jurisdiction) and Schedule 4 (Definitions and
Interpretation);
Taxation
means any form of taxation, duties, imposts, charges, contributions,
withholdings, tariffs or levies, whether of the Russian Federation or elsewhere,
including profits tax (or amounts equivalent to or in respect of profits tax
required to be deducted or withheld from or accounted for in respect of any
payment), and any other payment to the budgetary and extra budgetary funds of
the Russian Federation, and any interest, fine, surcharge or penalty related
thereto;
Trading Price
Decrease has the meaning given in clause 7;
Trading
Days means days on which the NYSE and RTS are both open for normal
trading operations;
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Transaction
Documents means this Agreement, the Escrow Agreement and any other
documents in Agreed Form;
Unconditional
Date has the meaning given in clause 3.4;
Unimilk
Transaction means the contribution by the relevant members of the Seller
Group of the fresh dairy product business carried on by the Seller Group in the
CIS to Dairy JV (CIS) Holdings (Cyprus) Limited and other transactions, as a
result of which the Seller Group will hold not less than 50% plus one share of
the issued and allotted share capital of that company and a third party, Unimilk
Holdings (Cyprus) Limited, will hold the remaining issued and allotted share
capital of that company;
US
Depositary means ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇▇ Bank, National Association acting
through its London Branch with its address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
WBD’s Bank
Account means WBD’s bank account the details of which will be notified by
the WBD to the Seller not later than 5 days prior to the date on which any
payment is required to be made into such account;
WBD Group
means WBD and any of its Affiliates from time to time;
WBD
Warranties means the warranties set out in Schedule 2;
Working
Hours means 9:30am to 5:30pm in the relevant location on a Business
Day.
2.
Interpretation. In
this agreement, unless the context otherwise requires:
|
(a)
|
references
to a person
include any individual, firm, body corporate (wherever incorporated),
government, state or agency of a state or any joint venture, association,
partnership, works council or employee representative body (whether or not
having separate legal personality);
|
|
(b)
|
headings
do not affect the interpretation of this Agreement; the singular shall
include the plural and vice versa; and references to one gender include
all genders;
|
|
(c)
|
references
to any English legal term or concept shall, in respect of any jurisdiction
other than England, be construed as references to the term or concept
which most nearly corresponds to it in that
jurisdiction;
|
|
(d)
|
references
to dollars or united states dollars or $ or to Roubles or RUR are
references to the lawful currency from time to time of the United States
and the Russian Federation
respectively;
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|
(e)
|
any
phrase introduced by the terms including,
include,
in
particular or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding those
terms.
|
3.
Enactments. Except
as otherwise expressly provided in this Agreement, any express reference to an
enactment (which includes any legislation in any jurisdiction) includes
references to (i) that enactment as amended, consolidated or re-enacted by or
under any other enactment before or after the date of this Agreement; (ii) any
enactment which that enactment re enacts (with or without modification); and
(iii) any subordinate legislation (including regulations) made (before or after
the date of this Agreement) under that enactment, as amended, consolidated or re
enacted as described in (i) or (ii) above, except to the extent that
- 28
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any of
the matters referred to in (i) to (iii) occurs after the date of this Agreement
and increases or alters the liability of the Seller, the Seller or WBD (or any
person on whose behalf it is acting as agent pursuant to this Agreement) under
this Agreement.
4.
Schedules. The
Schedules comprise schedules to this Agreement and form part of this
Agreement.
5.
Inconsistencies. Where
there is any inconsistency between the definitions set out in this Schedule and
the definitions set out in any clause or any other Schedule, then, for the
purposes of construing such clause or Schedule, the definitions set out in such
clause or schedule shall prevail.
- 29
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SIGNATURE
This
Agreement is signed by duly authorised representatives of the
parties:
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SIGNED
by
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)
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SIGNATURE:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
)
|
|||
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for
and on behalf of
|
)
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|||
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Compagnie
Gervais Danone SA
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)
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SIGNED
by
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)
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SIGNATURE:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
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▇▇▇▇▇▇
▇▇▇▇▇▇
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)
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|||
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for
and on behalf of
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)
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|||
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Limited
Liability Company
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)
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|||
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“Wimm-▇▇▇▇-▇▇▇▇
Finance”
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)
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