A case study guide to M&A transactions in Russia

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1 A case study guide to M&A transactions in Russia Ian Ivory and Anton Sitnikov Spring 2013

NOTE FROM THE EDITOR Dear Friends, I am pleased to present to you our new book Case Study Guide to M&A Transactions in Russia, written by two of our partners.

2 NOTE FROM THE EDITOR Dear Friends, I am pleased to present to you our new book Case Study Guide to M&A Transactions in Russia, written by two of our partners. The success of our first book Use of English law in Russian Transactions, which provided a comparative analysis of corporate English and Russian law, demonstrated how major international corporate institutions may or may not be applied in the Russian corporate legal environment. This new book is to show further, step by step, how international corporate institutions work in Russia to secure investors rights and sellers interests. We as lawyers practicing corporate law in Russia would very much like Russian law to become a more popular option for making transactions here and fully support its development and implementation. I hope this new guide will help our readers better understand how the major corporate institutions of English law work on Russian deals and how we can make deals institutionally in Russia using Russian law as well. On the basis of real cases in which our lawyers were involved, we take readers through all stages of an M&A transaction, explaining the requisite steps and actions throughout the process. I believe the book will help not only lawyers practising law but also much bigger audiences, from students to their lecturers, from state officials to judges. The way the book is structured will allow the business community, parliamentarians and the government to better understand the value of international corporate institutions, let them drive the corporate reform in an international direction and, finally, build a more attractive investment climate in Russia. We are now observing a growing tendency for Russian law to borrow concepts of foreign law that are new to us. We hope that Russian law will soon be better at protecting the interests of investors in Russia and believe that, in the very near future, we will write a book entitled Russian corporate law as the most efficient instrument to structure M&A transactions globally. Sincerely yours, Andrey Goltsblat Managing Partner of Goltsblat BLP

lot of information available on laws and regulation in Russia.

3 FOREWORD FROM THE AUTHORS Friends, colleagues and readers, welcome to our Case Study Guide to M&A Transactions in Russia. IAN IVORY ANTON SITNIKOV When we started work researching for our Case Study, we quickly realised there is a lot of general information available on Mergers and Acquisitions (M&A) deals and also a lot of information available on laws and regulation in Russia. However, there is very little analysis available which comprehensively fits the two parts together into a single, useful and user-friendly guide. In this respect we think that our Case Study is a new and unique product and we hope that you will enjoy it. Our guide sets out a Case Study of a typical acquisition and joint venture of a Russian business. It is aimed at both lawyers and non-lawyers and also at both experienced M&A practitioners and those with little or no experience. In order to cover such a wide readership we have therefore set out the background information and basic concepts of an M&A deal at each stage of our guide and then added to this practical tips and guidance, points to watch out for and ideas on some of the different negotiating positions that can be taken. Wherever relevant we have included Russia-specific practical guidance. The guide therefore also represents a series of case studies of some of our collective knowledge and experience, based on years of tough negotiating sessions, late night сompletion meetings and lots of colourful memories along the way! The Case Study follows on from our previous publication Use of English law in Russian transactions a comparative review. Where relevant, some of the legal concepts from that earlier publication have been included in this guide for ease of reference. As with the earlier publication, this Case Study deliberately avoids extensive references to statutes and case law it is a practical guide and not an academic study text. In many ways, now is the ideal time to produce a guide of this nature. At the height of the economic boom, many deals relating to Russia were carried out under foreign governing laws and using offshore corporate structures, all too often with insufficient understanding of how the rights and obligations of the parties might be applied or enforced in practice, in the event of a dispute. One result of the prevailing financial crisis has been to expose the problems and weaknesses inherent in such transaction structures in cases where insufficient attention was paid to their relationship with Russian laws and the practicalities of enforcement here on the ground in Russia. Although this Case Study guide cannot possibly give all the answers in the space available, it aims to address some of those issues in a practical way. A Case Study Guide to M&A Transactions in Russia, by Ian Ivory and Anton Sitnikov/3

4 There have also been many significant advances in the development of Russian law and its use in commercial transactions, not least of which are the proposed changes to the Russian Civil Code. It remains to be seen to what extent these changes will be finally implemented and then utilised on transactions and, more importantly, how they will be interpreted by the Russian courts. In the short term, the strong likelihood is that English law will continue to have a central role to play in many Russian M&A deals. As will be seen in the Case Study, the trend towards using English law governed deals at an offshore level remains the prevailing one, for now at least, and there are a number of valid reasons for this. However, speaking as partners in an international law firm with a key focus on Russia (both in terms of doing business in Russia and also in assisting Russian businesses when they are investing globally) we hope that the Russian legal and court systems will develop further so that Russian law becomes the first choice when it comes to structuring a deal, selecting the governing law and choosing a venue for any dispute resolution. In this regard we hope that our practical observations in this Case Study will not be viewed as a preference towards English law and offshore structures (which it is not), but rather as a factual indication of how many transactions are currently structured and also a pointer to some of the legal concepts for further development within the Russian business market. of reference for different legal points on Russian transactions and/or Russian laws and regulation. We hope that some readers will find time to read the whole guide, cover to cover! Our guide would not have been possible without the hard work and much appreciated efforts of all of our fellow colleagues at our firm, both in Moscow and London. In particular we would like to express our warm thanks to our colleagues Dimitri Antipin, Joanne Cox, Theo Jones, Nikolay Kholshev, Maria Kuzmina, Maxim Popov, Anton Rogoza, Adam Rose, Keith Stella, Artem Toropov, Benedict West and Victoria Wolf for all their hard work in helping to research and prepare the guide. Ian Ivory and Anton Sitnikov Spring 2013 The Case Study itself runs side-by-side with more general information on deals and follows the flow of the deal as it progresses. We considered using different case studies of various businesses at different points in our guide, but in the end we felt that it would be most useful to see one transaction through from start to finish, in order to see the entire picture and to give a proper insight into the flow and shape of a Russian M&A deal. However, the specific Case Study is in fact based on a number of different actual acquisitions, disposals and joint ventures where we have been involved. The names and some details have of course been changed in order to maintain client confidentiality. For your reference, at the end of this Case Study there is a Glossary of the main terms. Please note that references in this guide to shareholders and shares should be read as references to participants and participatory interests (respectively) in the case of Russian Limited Liability Companies as well. Our guide can be used in different ways. Some readers may prefer to read just the specific Case Study itself. Others will find the guide useful as a source 4/A Case Study Guide to M&A Transactions in Russia, by Ian Ivory and Anton Sitnikov

5 CONTENTS SECTION A: INTRODUCTION AND PRELIMINARY MATTERS Paragraph 1 Background 6 Paragraph 2 Heads of Terms 10 Paragraph 3 Case Study 13 SECTION B: LEGAL DUE DILIGENCE AND TRANSACTION STRUCTURING Paragraph 1 Scoping the Legal Due Diligence in Detail 16 Paragraph 2 Doing the Legal Due Diligence Sourcing the Information 18 Paragraph 3 Legal Due Diligence Main Categories 20 Paragraph 4 Merger Control 21 Paragraph 5 Identifying Illegal Practices: Bribery, Money Laundering 23 and Tax Evasion Paragraph 6 Transaction Structuring 25 Paragraph 7 Making the Formal Final Offer 32 Paragraph 8 Financing the Acquisition 36 Paragraph 9 Case Study 37 SECTION C: PREPARING AND NEGOTIATING THE SALE AND PURCHASE AGREEMENT Paragraph 1 Sale and Purchase Agreement 44 Paragraph 2 Limitations of Liability 76 Paragraph 3 Disclosure Letter and Disclosures 84 Paragraph 4 Enforcement 87 Paragraph 5 Dispute Resolution Out оf Court 88 Paragraph 6 Standard Boilerplate Provisions Explained 91 Paragraph 7 Drafting Tips when Preparing and Negotiating the Sale and 98 Purchase Agreement Paragraph 8 Case Study 100 SECTION D: PREPARING AND NEGOTIATING THE SHAREHOLDERS AGREEMENT AND OTHER KEY DOCUMENTS Paragraph 1 Shareholders Agreement 105 Paragraph 2 Other Legal Contracts LLC Agreement 124 Paragraph 3 Other Legal Contracts Company Charter/Articles of 125 Association Paragraph 4 Other Legal Contracts Service Agreements 125 Paragraph 5 Other Legal Contracts Transitional Services Agreements 126 Paragraph 6 Deeds under English Law 126 Paragraph 7 Case Study 127 SECTION E: SIGNING, COMPLETION AND POST-COMPLETION Paragraph 1 Final Negotiations 130 Paragraph 2 Final Pricing and Adjustments 131 Paragraph 3 Final Pre-Signing Steps 132 Paragraph 4 Exchange of Contracts 135 Paragraph 5 Period Between Signing and Completion 135 Paragraph 6 Completion 136 Paragraph 7 Post-Completion Matters 139 Paragraph 8 Case Study 141 Glossary 143

A case study guide to M&A transactions in Russia

A case study guide to M&A transactions in Russia Ian Ivory, Anton Sitnikov, Anton Rogoza Autumn 2012 Goltsblat BLP LLP, 2012 All rights reserved. Reproduction, copying, distribution (including on the Internet)