EXHIBIT 1.1
[o] Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
Draft: March 22, 2004
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UNDERWRITING AGREEMENT
[o], 2004
UBS Limited
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Ladies and Gentlemen:
The persons named in Schedule A annexed hereto (the "Selling
Stockholders") propose to sell to UBS Limited ("you," the "Underwriter" or "UBS
Limited") an aggregate of [o] shares (the "Shares") of Common Stock, $0.01 par
value (the "Common Stock"), of Golden Telecom, Inc., a Delaware corporation (the
"Company"), to be sold by the Selling Stockholders in the respective amounts set
forth under the caption "Shares" in Schedule A annexed hereto. The Shares are
described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
U.S. Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Act"), with the U.S. Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
[o]) including a prospectus, relating to the Shares, which incorporates by
reference documents (the "Incorporated Documents") which the Company has filed
or will file in accordance with the provisions of the U.S. Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the "Exchange Act"). The Company has furnished to you, for use by you and by
dealers, copies of one or more preliminary prospectuses and the documents
incorporated by reference therein (each thereof, including the documents
incorporated therein by reference, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430(A) under the Act and also including any registration statement filed
pursuant to Rule 462(b) under the Act, is herein called the "Registration
Statement," and the prospectus, including all documents incorporated therein by
reference, in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus, any amendments or supplements thereto,
included in the Registration Statement at the time it became effective, is
herein called the "Prospectus." As used herein, "business day" shall mean a day
on which National Association of Securities Dealers Automated Quotation National
Market System ("NASDAQ") is open for trading.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "disclosed," "included" or
"stated" in the Registration Statement, any Preliminary Prospectus, or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is
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incorporated by reference in the Registration Statement, such Preliminary
Prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is incorporated by reference
in the Registration Statement, such Preliminary Prospectus or the Prospectus, as
the case may be.
The Company, the Selling Stockholders and the Underwriter agree as
follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, each of the
Selling Stockholders, severally and not jointly, agrees to sell to you and you
agree to purchase from each Selling Stockholder the respective number of Shares
as set forth opposite the name of such Selling Stockholder in Schedule A
attached hereto, in each case at a purchase price of $[o] per Share. Each
Selling Stockholder is advised by you that you intend (i) to make a public
offering of their respective portions of the Shares immediately after the
effective date of the Registration Statement and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
2. Payment and Delivery. Payment of the purchase price for the Shares,
less discounts and commissions and those expenses specified in Section 6 below
that have not been previously paid, shall be made to each of the Selling
Stockholders to the accounts specified in Schedule B attached hereto by Federal
Funds (same day) wire transfer, against delivery of the certificates for the
Shares to you through the facilities of The Depository Trust Company (DTC) for
the account of the Underwriter. Such payment and delivery shall be made at
[10:00 A.M., New York City] time, on [o], 2004 (unless another time shall be
agreed to by you and the Selling Stockholders). The time at which such payment
and delivery are to be made is hereinafter sometimes called "the time of
purchase." Electronic transfer of the Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall specify not less
than 48 hours prior to the time of purchase.
Deliveries of the documents described in Section 7 hereof with
respect to the purchase of the Shares shall be made at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, Degtyarniy Xxxxxxxx 0, Xxxxxxxx 0, Xxxxxx,
Russian Federation, no later than at [9:30 A.M.], Moscow time, on the date of
the closing of the purchase of the Shares.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter and the Selling
Stockholders that:
(a) The Registration Statement has been declared effective under
the Act; no stop order of the Commission preventing or suspending the use
of any Preliminary Prospectus or the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose have been
instituted or, to the Company's knowledge after due inquiry, are pending or
threatened by the Commission; each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the requirements of
the Act and the last Preliminary Prospectus distributed in connection with
the offering of the Shares did not, as of its date, and does not contain an
untrue statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; the Registration Statement
complied when it became effective, complies and will comply, at the time of
purchase, in all material respects with the requirements of the Act and any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or to be filed as exhibits to the
Registration Statement have been and will be so described or filed; the
conditions to the use of Form S-3 have been satisfied; the Registration
Statement did not when it became effective, does not now and will not, at
the time of purchase, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and the Prospectus will not, as
of its date and at the time of purchase, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no warranty or representation with respect
to any statement contained in the Preliminary Prospectus, the Registration
Statement or the Prospectus in reliance upon and in conformity with
information concerning the Underwriter and furnished in writing by you to
the Company expressly for use in the Preliminary Prospectus, the
Registration Statement or the Prospectus; the documents incorporated by
reference or deemed to be incorporated by reference in any Preliminary
Prospectus, the Registration Statement and the Prospectus, at the time they
became effective or were, or hereafter are, filed with the Commission,
complied in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and the Company has not distributed and will not distribute any
offering material in connection with the offering or sale of the Shares
other than the Preliminary Prospectus, the Registration Statement and the
Prospectus;
(b) the Company has an authorized and outstanding capitalization as
stated in the section of the Prospectus entitled "Description of Capital
Stock";
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and to execute and deliver this Agreement as contemplated herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) of the
business, properties, results of operation or prospects of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect");
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(e) each "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) of the Company and each entity in which the Company
has a direct or indirect majority equity interest or voting power (the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation, general partnership, limited partnership, limited liability
company, joint stock company, or similar entity in good standing (to the
extent such concept exists in the relevant jurisdiction), under the laws of
the jurisdiction of its incorporation, with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, except where the
failure to have such power and authority would not singly or in the
aggregate have a Material Adverse Effect; each Subsidiary is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction (to the extent such concepts exist in the relevant
jurisdiction) where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or
in the aggregate, have a Material Adverse Effect; all of the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and are
owned by the Company subject to no security interest, other encumbrance or
adverse claims, except where such security interests, encumbrances or
adverse claims would not singly or in the aggregate have a Material Adverse
Effect; and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding [(except with respect to the sale of an interest in LLC Golden
Telecom (Ukraine))]; other than the capital stock of the Subsidiaries and
entities listed on Schedule C and other than as stated in the Registration
Statement, the Company does not own, ---------- directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation, general partnership, limited partnership, limited liability
company, joint stock company, or similar entity; complete and correct
copies of the certificates of incorporation and the by-laws of the Company
and each of the Subsidiaries and all amendments thereto have been delivered
to you, and except as set forth in the exhibits to the Registration
Statement no changes therein will be made subsequent to the date hereof and
prior to the time of purchase;
(f) all of the issued and outstanding shares of capital stock of
the Company, including the Shares, have been duly and validly authorized
and issued, fully paid and non-assessable and issued in compliance with all
federal and state securities laws and were not issued in violation of any
preemptive right, right of first refusal or similar right granted by the
Company;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof included in
the Registration Statement and the Prospectus and the holders of the Shares
will not be subject to personal liability by reason of being such holders;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) except as otherwise disclosed in the Registration Statement,
neither the
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Company nor any of the subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or both would result in any breach of, constitute a default under or give
the holder of any indebtedness (or a person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
part of such indebtedness under) its respective charter or by-laws, or any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, bank loan or credit agreement, note or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the subsidiaries is
a party or by which any of them or any of their properties may be bound or
affected, except for such breaches, violations or defaults which would not
singly or in the aggregate have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the sale of the
Shares and the consummation of the transactions contemplated hereby will
not conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of time or
both would result in any breach of or constitute a default under) the
charter or by-laws of the Company or any of the Subsidiaries, or any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement, note or other
evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may
be bound or affected, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries;
(j) all consents, approvals and authorizations of any court,
government department or other regulatory body (including any stock
exchange on which the Company's securities are listed) for the execution
and delivery of this Agreement and the performance of its terms by the
Company have been obtained and are unconditional and in full force and
effect;
(k) (i) except as disclosed in the Registration Statement, no
person has the right, contractual or otherwise, to cause the Company to
issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) except as
disclosed in the Registration Statement, no person has any preemptive
rights, resale rights, rights of first refusal or other rights to purchase
any shares of Common Stock or shares of any other capital stock or other
equity interests of the Company from the Company, (iii) no person has the
right to act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, in the case of each of
the foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise, (iv) except as otherwise
disclosed in the Registration Statement, no person has the right,
contractual or otherwise, to cause the Company to register under the Act
any shares of Common Stock or shares of any other capital stock or other
equity interests of the Company, or to include any such shares or interests
in the Registration Statement or the offering contemplated thereby, whether
as a result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby or otherwise, and (v) there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid
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claim against the Company or the Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering;
(l) except as otherwise disclosed in the Registration Statement,
each of the Company and the Subsidiaries has all necessary licenses,
permits, authorizations, consents and approvals issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them (collectively, "Governmental
Licenses"), including, without limitation, licenses issued by the Ministry
of Transportation and Communications (formerly, the State Committee of the
Russian Federation on Communications and Information or the Ministry of
Communications), permissions issued by the State Service for Communications
Oversight (also referred to as Gossviaznadzor), and/or radio-frequency
allocations issued by the State Commission for Radio Frequencies], and has
made all necessary filings required under any federal, state, local or
foreign law, regulation or rule, except where the failure so to have or
file would not, singly or in the aggregate, result in a Material Adverse
Effect; except as otherwise disclosed in the Registration Statement, the
Company and the Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, neither the Company nor any of the Subsidiaries is
in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect;
(m) the statements included in the Registration Statement under the
caption "Overview of the Legal, Tax and Regulatory Regimes in Russia and
Ukraine" and "[o]" insofar as they purport to summarize the
telecommunications laws and regulations of Russia and the Ukraine referred
to therein, fairly summarize such laws and regulations in all material
respects and are true and accurate in all material respects;
(n) except as disclosed in the Registration Statement, there are no
actions, suits, claims, investigations or proceedings pending or, to the
Company's knowledge after due inquiry, threatened to which the Company or
any of the Subsidiaries is a party or to which any of their respective
properties is subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect; and, to the
Company's knowledge after due inquiry, there are no such actions, suits,
claims, investigations or proceedings that would prevent consummation of
the transactions contemplated hereby;
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(o) Ernst & Young (CIS) Limited, whose report on the consolidated
financial statements of the Company and its subsidiaries is filed with the
Commission as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Act; and ZAO
"PricewaterhouseCoopers Audit", whose report on the consolidated financial
statements of Open Joint Stock Company "Comincom" ("Comincom") and its
subsidiaries is filed with the Commission as part of the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act;
(p) the audited financial statements of the Company and its
subsidiaries incorporated by reference in the Registration Statement and
the Prospectus, together with the related notes and schedules, present
fairly in all material respects the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Company and its subsidiaries
for the periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
during the periods involved; the pro forma financial statements, pro forma
selected financial data and pro forma financial information included in the
Registration Statement comply with the requirements of Regulation S-X of
the Act and the assumptions used in the preparation of such pro forma
financial statements and data are reasonable, the pro forma adjustments
used therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements and data; the year end selected financial data and summary
financial information of the Company and its subsidiaries included in the
Registration Statement have been extracted or derived from the audited
consolidated financial statements of the Company and its subsidiaries; the
other financial and statistical data of the Company and its subsidiaries
included in the Registration Statement are accurately presented and
prepared on a basis consistent with the financial statements and books and
records of the Company and its subsidiaries; there are no financial
statements (historical or pro forma) of the Company or its subsidiaries
that are required to be included in the Registration Statement that are not
included as required; and all liabilities or obligations, direct or
contingent (including any off-balance sheet obligations) of the Company and
its subsidiaries required to be included in the Registration Statement or
the Prospectus have been so included;
(q) the audited financial statements of Comincom and its
subsidiaries incorporated by reference in the Registration Statement,
together with the related notes and schedules, present fairly in all
material respects the consolidated financial position of Comincom and its
subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of Comincom and its subsidiaries for the periods
specified and have been prepared in compliance with the requirements of the
Act and in conformity with generally accepted accounting principles in the
United States applied on a consistent basis during the periods involved;
the unaudited interim consolidated financial statements of Comincom and its
subsidiaries for the six months ended June 30, 2003 and June 30, 2002
included in the Registration Statement present fairly in all material
respects the consolidated financial position of Comincom and its
subsidiaries as of the
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dates indicated and the consolidated results of operations and cash flows
of Comincom and its subsidiaries for the periods specified and have been
prepared in compliance with the requirements of the Act and in conformity
with generally accepted accounting principles in the United States applied
on a consistent basis during the periods involved; the year end selected
financial data and summary financial information of Comincom and its
subsidiaries for the two years ended December 31, 2002 included in the
Registration Statement have been extracted or derived from the audited
consolidated financial statements of Comincom and its subsidiaries; the
year end selected financial data and summary financial information of
Comincom and its subsidiaries for the three years ended December 31, 2000
included in the Registration Statement have been extracted or derived from
the unaudited consolidated financial statements of Comincom and its
subsidiaries; the unaudited interim selected financial data and summary
financial information of Comincom and its subsidiaries included in the
Registration Statement have been extracted or derived from the unaudited
and interim consolidated financial statements of Comincom and its
subsidiaries included in the Registration Statement; the other financial
and statistical data of Comincom and its subsidiaries included in the
Registration Statement are accurately presented and prepared on a basis
consistent with the financial statements and books and records of Comincom
and its subsidiaries; there are no financial statements (historical or pro
forma) of Comincom or its subsidiaries that are required to be included in
the Registration Statement that are not included as required; and none of
Comincom or its subsidiaries has any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations) required
to be included in the Registration Statement that are not included in the
Registration Statement;
(r) except as disclosed in the Registration Statement, since the
date of the most recent audited financial statements of the Company and its
subsidiaries incorporated by reference or included in the Registration
Statement, there has not been (i) any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and its subsidiaries taken as
a whole, (iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or its
subsidiaries, which is material to the Company and its subsidiaries taken
as a whole, (iv) any change in the capital stock (other than the exercise
of outstanding stock options) or outstanding indebtedness of the Company or
its subsidiaries, which is material to the Company and its Subsidiaries
taken as a whole, or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company;
(s) the Company is not and, after giving effect to the offer and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(t) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement as being
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owned by each of them, free and clear of all liens, claims, security
interests or other encumbrances and defects that would affect the value
thereof or interfere with the use made or to be made thereof by them,
except for such liens, claims, security interests or other encumbrances and
defects that would not singly or in the aggregate have a Material Adverse
Effect; except as disclosed in the Registration Statement, all the property
disclosed in the Registration Statement as being held under lease by the
Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases with no exceptions that would interfere with the use
made or to be made thereof by them (except such as would not singly or in
the aggregate result in a Material Adverse Effect);
(u) the Company and the Subsidiaries own, or have obtained valid
and enforceable licenses for, or other rights to use, the inventions,
patent applications, patents, know-how, trademarks (both registered and
unregistered), tradenames, copyrights, trade secrets and other proprietary
information described in the Registration Statement as being owned or
licensed by them or which are necessary for the conduct of their respective
businesses (collectively, "Intellectual Property"), except where the
failure to own, license or have such rights would not, individually or in
the aggregate, have a Material Adverse Effect; (i) to the Company's
knowledge after due inquiry, there are no third parties who have or will be
able to establish rights to any Intellectual Property, except for the
ownership rights of the owners of the Intellectual Property which is
licensed to the Company or the Subsidiaries; (ii) to the Company's
knowledge after due inquiry, there is no infringement by third parties of
any Intellectual Property; (iii) there is no pending or, to the Company's
knowledge after due inquiry, threatened action, suit, proceeding or claim
by others challenging the Company's or any Subsidiary's rights in or to any
Intellectual Property, and the Company is unaware of any facts which could
form a reasonable basis for any such claim; (iv) there is no pending or, to
the Company's knowledge after due inquiry, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts which could
form a reasonable basis for any such claim; (v) there is no pending or, to
the Company's knowledge after due inquiry, threatened action, suit,
proceeding or claim by others that the Company or any Subsidiary infringes
or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of others, and the Company is unaware of any facts
which could form a reasonable basis for any such claim; (vi) there is no
patent or, to the Company's knowledge after due inquiry, patent application
that contains claims that interfere with the issued or pending claims of
any of the Intellectual Property; and, (vii) to the Company's knowledge
after due inquiry, there is no prior art that may render any patent
application owned by the Company or any Subsidiary of the Intellectual
Property unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office, Rospatent, Derzhavniy Departament Intelectualnoi
Vlasnosti or similar foreign patent authority;
(v) no labor dispute exists with the employees of the Company or
any Subsidiary or, to the Company's knowledge after due inquiry, is
imminent that would, individually or in the aggregate, have a Material
Adverse Effect;
(w) except as disclosed in the Registration Statement and to the
Company's
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knowledge after due inquiry, neither the Company nor any Subsidiary is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "Environmental Laws"), owns or
operates any real property contaminated with any substance that is subject
to any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending investigation
which might lead to such a claim;
(x) all tax returns required to be filed by the Company and each of
the Subsidiaries have been filed, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding) including
any interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been provided
to the extent required by the generally accepted accounting principles in
the United States of America;
(y) the Company and each of the Subsidiaries maintains insurance
covering its properties, operations, personnel and businesses as the
Company deems adequate and as previously disclosed to the Underwriter; such
insurance insures against such losses and risks to an extent which the
Company believes is adequate to protect the Company and the Subsidiaries
and their businesses; and all such insurance is fully in force on the date
hereof and will be fully in force at the time of purchase, except where the
failure to be in force would not have a Material Adverse Effect;
(z) neither the Company nor any of the subsidiaries has sustained
since the date of the most recent audited financial statements incorporated
by reference in the Registration Statement any loss or interference with
its respective business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, except where such loss or
interference would not have a Material Adverse Effect;
(aa) nether the Company nor any Subsidiary has been sent or
received any communication regarding termination of, or intent not to
renew, any of the contracts or agreements referred to or included in,
incorporated by reference in, or filed as an exhibit to, the Registration
Statement, and no such termination or non-renewal has been threatened by
the Company or any Subsidiary or, to the Company's knowledge after due
inquiry, any other party to any such contract or agreement;
(bb) the Company and each of its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to
-11-
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences;
(cc) the Company is in compliance with applicable provisions of the
U.S. Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") that are
effective and is actively taking steps to ensure that it will be in
compliance with other applicable provisions of the Xxxxxxxx-Xxxxx Act upon
the effectiveness of such provisions; the Company has established and
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-14 and 15d-14 under the Exchange Act); the Company has implemented
the "disclosure controls and procedures" (as defined in Rules 13a-14(c) and
15d-14(c) of the Exchange Act) required in order for the Chief Executive
Officer and Chief Financial Officer of the Company to engage in the review
and evaluation process mandated by the Exchange Act. The Company's
"disclosure controls and procedures" are reasonably designed to ensure that
all information (both financial and non-financial) required to be disclosed
by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the Commission, and that all such
information is accumulated and communicated to the Company's management as
appropriate to allow timely decisions regarding required disclosure and to
make the certifications of the Chief Executive Officer and Chief Financial
Officer of the Company required under the Exchange Act with respect to such
reports; the Company's auditors and the [Audit Committee of the Board of
Directors] have been advised of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize, and report financial data;
and (ii) any fraud, whether or not material, that involves management or
other employees who have a role in the Company's internal controls; any
material weaknesses in internal controls have been identified for the
Company's auditors; and since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses;
(dd) the section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operation - Critical Accounting
Policies" incorporated by reference in the Registration Statement
accurately and fully describes (i) accounting policies which the Company
believes are the most important in the portrayal of the financial condition
and results of operations of the Company and its consolidated subsidiaries
and which require management's most difficult, subjective or complex
judgments ("critical accounting policies"); (ii) judgments and
uncertainties affecting the application of critical accounting policies;
and (iii) explanation of the likelihood that materially different amounts
would be reported under different conditions or using different
assumptions;
(ee) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company
-12-
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required;
(ff) neither the Company nor any of its subsidiaries nor any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares;
(gg) to the Company's knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater securityholders, except as
disclosed in the Registration Statement;
(hh) except as disclosed in the Registration Statement, neither the
Company nor any of its subsidiaries is in violation of the Foreign Corrupt
Practices Act of 1977, as amended, such that such a violation would
individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to a
claim of such a violation; no payments or inducements were made or given,
directly or indirectly, to any federal or local officials in Russia or
Ukraine by the Company by any of its subsidiaries, by any of their
directors, officers, employees or agents or, to the Company's knowledge
after due inquiry, by any other person associated with or acting on behalf
of the Company or any of its subsidiaries in connection with any
opportunity, agreement, Governmental License, Telecommunication License,
any other license, certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any of its
subsidiaries, except for such payments or inducements as were lawful under
the written laws, rules and regulations of Russia or Ukraine, as the case
may be;
(ii) neither the Company, nor any of its subsidiaries, nor any
director, officer, employee, agent or other person associated with or
acting on behalf of the Company or any of its subsidiaries, (i) has used
any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any government official or employee from
corporate funds; or (iii) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment in connection with
the business of the Company or any of its subsidiaries; and
(jj) the Company has complied in all material respects with
Regulation G or Item 10 of Regulation S-K of the Securities Act of 1934, as
amended ("Regulation S-K"), as applicable, in connection with all filings
made by the Company with the United States Securities and Exchange
Commission after March 28, 2003, that are incorporated by reference in the
Registration Statement.
In addition, any certificate signed by any officer of the Company
or any of the Subsidiaries and delivered to the Underwriter or counsel for
the Underwriter in connection with the
-13-
offering of the Shares shall be deemed to be a representation and warranty by
the Company or Subsidiary, as the case may be, as to matters covered thereby, to
the Underwriter.
4. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents and warrants to the
Underwriter and the Company that:
(a) such Selling Stockholder now is and at the time of delivery of
such Shares will be, the lawful owner of the number of Shares to be sold by
such Selling Stockholder pursuant to this Agreement and has and, at the
time of delivery thereof, will have valid and marketable title to such
Shares, and upon delivery of and payment for such Shares, the Underwriter
will acquire valid and marketable title to such Shares free and clear of
any claim, lien, encumbrance, security interest, community property right,
resale rights, rights of first refusal, restriction on transfer or other
defect in title;
(b) such Selling Stockholder has and at the time of delivery of
such Shares will have, full legal right, entity power and capacity, and any
approval required by law (other than those imposed by the Act and the
securities or blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver such Shares in the manner provided in this Agreement;
(c) when the Registration Statement becomes effective and at all
times subsequent thereto through the later of the time of purchase or the
termination of the offering of the Shares, the written information
furnished to the Company by such Selling Stockholder expressly for use in
the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated in
such information or necessary to make the statements therein not
misleading;
(d) no stamp or other transfer taxes or duties are payable by or on
behalf of the Underwriter to the United States or any political subdivision
or taxing authority thereof or therein in connection with the sale and
delivery by such Selling Stockholder of the Shares to or for the account of
the Underwriter or the resale or redelivery of the Shares by the
Underwriter to the initial purchasers thereof; and
(e) the sale of such Selling Stockholder's Shares pursuant to this
Agreement is not prompted by any information concerning the Company which
is not disclosed in the Registration Statement or the Prospectus but is
required to be so disclosed.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you
may designate and to maintain such qualifications in effect so long as you
may request for the distribution of the Shares; provided that the Company
shall not be required to qualify as a foreign corporation or to consent to
the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares);
and to promptly advise
-14-
you of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose;
(b) to make available to you in New York City and London, England,
as soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to you, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective
date of the Registration Statement) as you may request for the purposes
contemplated by the Act;
(c) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or any post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
the Company will advise you promptly and, if requested by you, will confirm
such advice in writing, (i) when the Registration Statement and any such
post-effective amendment thereto has become effective, and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus, including by filing any documents that would
be incorporated therein by reference, and to provide you and your counsel
copies of any such documents for review and comment a reasonable amount of
time prior to any proposed filing and to file no such amendment or
supplement to which you shall reasonably object in writing;
(e) subject to Section 5(d) hereof, to file promptly all reports
and any definitive proxy or information statement required to be filed by
the Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Shares; to provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of
the Exchange Act during such period a reasonable amount of time prior to
any proposed filing, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to advise you promptly of the happening of any event within the
time
-15-
during which a prospectus relating to the Shares is required to be
delivered under the Act which could require the making of any change in the
Prospectus then being used so that the Prospectus would not include an
untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and, during a reasonable amount
of time prior to any proposed filing, subject to Section 5(d) hereof, to
prepare and furnish, at the Company's expense, to you promptly copies of
such amendments or supplements to such Prospectus as may be necessary to
reflect any such change;
(h) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) of the Act) as soon as is reasonably practicable
after the termination of such twelve-month period but not later than forty
five (45) days after the end of the Company's fiscal year;
(i) to furnish to you 3 copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein);
(j) other than to the extent filed with the Commission, to furnish
to you promptly for a period of three years from the date of this Agreement
(i) copies of any reports or other communications which the Company shall
send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar
forms as may be designated by the Commission, (iii) copies of documents or
reports filed with (A) any securities exchange on which any class of
securities of the Company is listed and (B) the securities markets
regulator in any market in which any class of the Company's securities are
listed, and (iv) such other information as you may reasonably request
regarding the Company or its subsidiaries;
(k) to furnish to you as early as practicable prior to the time of
purchase but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and its subsidiaries which have been
read by the Company's independent certified public accountants, as stated
in their letter to be furnished pursuant to Section 7(f) hereof;
(l) (i) to pay the costs, expenses, fees and taxes in connection
with (A) the preparation and filing of the Registration Statement, the
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriter and to dealers (including costs of mailing and shipment), (B)
the registration, sale and delivery of the Shares including any stock or
transfer taxes and stamp or similar duties payable upon the sale or
delivery of the Shares to the Underwriter, (C) the producing, word
processing and/or printing of this Agreement, any dealer agreements, any
Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of
each thereof to the Underwriter and (except closing documents) to dealers
-16-
(including costs of mailing and shipment), (D) the qualification of the
Shares for offering and sale under state or foreign laws and the
determination of their eligibility for investment under state or foreign
law as aforesaid and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriter and to dealers, (E)
any listing of the Shares on any securities exchange or qualification of
the Shares for quotation on NASDAQ and any registration thereof under the
Exchange Act, (F) any filing for review of the public offering of the
Shares by the NASD, including filing fees, (G) the fees and disbursements
of any transfer agent or registrar for the Shares, (H) the costs and
expenses of the Company relating to presentations or meetings undertaken in
connection with the marketing of the offering and sale of the Shares to
prospective investors, including, without limitation, travel, lodging and
other expenses incurred by Company personnel necessary for the
participation in such presentations or meetings, and (I) the performance of
the Company's other obligations hereunder; and (ii) to reimburse the costs
and expenses of the Underwriter up to an aggregate amount of $50,000 (fifty
thousand United States dollars) relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriter's sales forces,
including, without limitation, travel, lodging and other expenses incurred
by the Underwriter's personnel necessary for the participation in such
presentations or meetings; and
(m) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common
Stock.
6. Certain Covenants of the Selling Stockholders. Except as set forth
in the last paragraph of Section 8 hereof, each of the Selling Stockholders
agrees, severally but not jointly, with the Underwriter that such Selling
Stockholder, in such proportion as the number of Shares to be sold by each such
Selling Stockholder bears to the total number of Shares to be sold hereunder,
will (i) reimburse the legal fees of counsel to the Underwriter in connection
with offering and sale of the Shares up to an aggregate amount for all Selling
Stockholders of $300,000 (three hundred thousand United States dollars) and (ii)
pay all costs, expenses, fees and taxes incurred by such Selling Stockholder in
the performance of its other obligations hereunder.
7. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders on the date
hereof and at the time of purchase, the performance by the Company and each of
the Selling Stockholders of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase an
opinion of Xxxxxxxxxx & Xxxxx, US counsel for the Company, addressed to the
Underwriter, and dated the time of purchase and in form and substance
satisfactory to you and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Underwriter, substantially in the form of Exhibit 1 hereto;
(b) The Company shall furnish to you at the time of purchase an
opinion of Xxxxxxxxxx & Xxxxx LLP, special Russian counsel for the Company,
addressed to the Underwriter, and dated the time of purchase and in form
and substance satisfactory to
-17-
you and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriter, substantially in the form of Exhibit 2 hereto;
(c) The Company shall furnish to you at the time of purchase an
opinion of Xxxxxxx Xxxxxxx, General Counsel for the Company, addressed to
the Underwriter, and dated the time of purchase and in form and substance
satisfactory to you and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Underwriter, substantially in the form of Exhibit 3 hereto;
(d) The Company shall furnish to you at the time of purchase an
opinion of Shevchenko Didkovskiy & Partners, special Ukrainian counsel for
the Company, addressed to the Underwriter, and dated the time of purchase
and in form and substance satisfactory to you and Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriter, substantially in the form
of Exhibit 4 hereto;
(e) Each of the Selling Stockholders (other than the European Bank
for Reconstruction and Development (the "EBRD")) shall furnish to you at
the time of purchase an opinion of counsel for such Selling Stockholder,
addressed to the Underwriter, and dated the time of purchase and in form
and substance satisfactory to you and Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, counsel for the Underwriter, substantially in the form of Exhibit 5
hereto; and the EBRD shall furnish to you at the time of purchase an
opinion of counsel for such Selling Stockholder, addressed to the
Underwriter, and dated the time of purchase and in form and substance
satisfactory to you and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Underwriter, substantially in the form of Exhibit 6 hereto;
(f) You shall have received from Ernst & Young (CIS) Limited and
ZAO "PricewaterhouseCoopers Audit" comfort letters dated, respectively, the
date of this Agreement, the time of purchase and addressed to the
Underwriter in the forms heretofore approved by the Underwriter;
(g) You shall have received at the time of purchase the favorable
opinions and disclosure letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
US and special Russian counsel for the Underwriter, dated the time of
purchase as the Underwriter may reasonably require and the Company and the
Selling Stockholders shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters;
(h) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus, including documents deemed to be incorporated
by reference therein, shall have been filed to which you reasonably object
in writing;
(i) The Registration Statement shall become effective not later
than 5:30 P.M. New York City time on the date of this Agreement and, if
Rule 430A under the Act is used, the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) under the Act at or before 5:30
P.M., New York City time, on the second full business day after the date of
this Agreement;
-18-
(j) Prior to the time of purchase (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of the
Act; (ii) the Registration Statement and all amendments thereto in the form
used to confirm sales shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus and all amendments or supplements thereto in the form used to
confirm sales shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading;
(k) Between the time of execution of this Agreement and the time of
purchase no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company and
its subsidiaries taken as a whole shall occur or become known;
(l) The Company will, at the time of purchase deliver to you a
certificate of its Chief Executive Officer and its Chief Financial Officer
to the form attached as Exhibit 7 and Exhibit 8 hereto, respectively;
(m) The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in
the Registration Statement and the Prospectus as of the time of purchase as
you may reasonably request; and each of the Selling Stockholders shall have
furnished to you such other documents and certificates as to the accuracy
and completeness of any statement in the Registration Statement and the
Prospectus in respect of such Selling Stockholder as of the time of
purchase as you may reasonably request;
(n) You shall have received written confirmation that the NASD has
not raised any objection with respect to the fairness and reasonableness of
the terms and conditions of this Agreement;
(o) Each Selling Stockholder will at the time of purchase deliver
to you a certificate to the effect that its representations and the
warranties as set forth in this Agreement are true and correct as of such
date;
(p) The resolutions of the Board of Directors of the Company
approving the sale of the Shares pursuant to this Agreement have been
adopted and you shall have received certified copies of all such
resolutions;
(q) The parties to this Agreement have entered into a Side Letter
substantially in the form of Exhibit 9 hereto and
(r) All approvals, consents, authorizations required from any third
party or regulatory authority have been obtained and you shall have
received certified copies of all such approvals, consents and
authorizations.
-19-
8. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
Your obligations hereunder shall be subject to termination in your
absolute discretion, if (x) since the time of execution of this Agreement or the
earlier respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been any material adverse change or any
development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operation of the
Company and its subsidiaries taken as a whole, which would, in your judgment,
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and the Prospectus, or (y) there shall have occurred: (i)
a suspension or material limitation in trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by
either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) an outbreak or escalation of hostilities or acts of terrorism
involving the United States, the Russian Federation, the United Kingdom or any
member state of the European Union or a declaration by the United States, the
Russian Federation, the United Kingdom or any member state of the European Union
of a national emergency or war; (v) any other calamity or crisis or any change
in financial, political or economic conditions in the United States or
elsewhere; or (vi) a change in Russian taxation, currency exchange rates or
exchange controls materially adversely affecting the Shares, if the effect of
any such event specified in clause (iv), (v) or (vi) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
If you elect to terminate this Agreement as provided in this
Section 8, the Company and the Selling Stockholders shall be notified promptly
in writing.
If the sale to you of the Shares, as contemplated by this
Agreement, is not carried out by you for any reason permitted under this
Agreement or if such sale is not carried out because the Company or the Selling
Stockholders, as the case may be, shall be unable to comply with any of the
terms of this Agreement, you shall be under no obligation or liability to the
Company and the Selling Stockholders under this Agreement and the Company or the
Selling Stockholders, as the case may be, shall not be under any obligation or
liability under this Agreement, except to the extent provided in Sections 5(l),
6 and 9 hereof; provided, however, that if the sale to you of the Shares, as
contemplated by this Agreement, is not carried out as a result of the default by
you in carrying out your obligations hereunder, the Company shall not be under
any obligation or liability provided in Section 5(l)(ii) hereof and the Selling
Stockholders shall not be under any obligation or liability provided in Section
6 hereof.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors and officers, and any person who
controls the
-20-
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which the Underwriter or
any such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment
thereof by the Company) or in a Prospectus (the term Prospectus for the
purpose of this Section 9 being deemed to include each Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by
the Company), or arises out of or is based upon any omission or alleged
omission to state a material fact that is required to be stated in either
such Registration Statement or such Prospectus or necessary to make the
statements made therein not misleading; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in and in conformity with information furnished in writing by or on behalf
of the Underwriter to the Company expressly for use in such Registration
Statement or such Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading.
Each Selling Stockholder severally but not jointly, agrees to
indemnify, defend and hold harmless the Underwriter, its partners,
directors and officers, and any person who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus (the term Prospectus for the purpose of
this Section 9 being deemed to include each Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the Company),
or arises out of or is based upon any omission or alleged omission to state
a material fact in connection with such information required to be stated
in such Registration Statement or such Prospectus or necessary to make such
information not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was
based on written information furnished to the Company by such Selling
Stockholder expressly for use in such Registration Statement or such
Prospectus; provided, however, that such Selling Stockholder shall not be
liable in any such case to the extent that any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of the Underwriter to
the Company expressly for use in such Registration Statement or such
Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be
-21-
stated in such Registration Statement or such Prospectus or necessary to
make such information not misleading. The foregoing sentence
notwithstanding (x) the indemnity obligation of each Selling Stockholder
under this Section 9(a) shall not exceed the amount of net proceeds
received by such Selling Stockholder in connection with the offer and sale
of the Shares pursuant to this Agreement; and (y) with respect to any
untrue statement or omission by a Selling Stockholder in any Preliminary
Prospectus such indemnity shall not inure to the benefit of the
Underwriter, its partners, directors and officers, and any person who
controls the Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, if the person asserting any such loss, damage,
expense, liability or claim did not receive a copy of the Prospectus at or
prior to the confirmation of the sale of the Shares to such person in any
case where such delivery is required by law and such Selling Stockholder
has furnished copies thereof to the Underwriter and the untrue statement or
omission of material fact contained in such Preliminary Prospectus was
cured in the Prospectus.
If any action, suit or proceeding (each, a "Proceeding") is brought
against any person in respect of which indemnity may be sought pursuant to the
foregoing paragraphs, or such person shall promptly notify the indemnifying
party in writing of the institution of such Proceeding and the indemnifying
party, shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the omission to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which the indemnifying party may have to the such person or otherwise, except to
the extent that the indemnifying party has been materially prejudiced by such
failure; and provided, further, that the failure to notify the indemnifying
party shall not relieve the indemnifying party from any liability that the
indemnifying party may have to the Underwriter otherwise than under this Section
9(a). Such person shall have the right to employ its or their own counsel in any
such case, but the fees and expenses such counsel shall be at the expense of
such person unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to take charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the indemnifying party and paid as incurred (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The indemnifying party
shall not be liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the indemnifying
party, the indemnifying party agrees to indemnify and hold harmless any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an the indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second sentence of
this paragraph, then the indemnifying party agrees that it shall be liable for
any settlement of any Proceeding effected without its written consent if (i)
such settlement is entered into more than
-22-
60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request to the extent required to do
so by such second sentence prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) The Underwriter agrees to indemnify, defend and hold harmless
the Company, its directors and officers, each Selling Stockholder and any
person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company, any Selling Stockholder or any such
person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information concerning
the Underwriter furnished in writing by or on behalf of the Underwriter to
the Company expressly for use in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against the Underwriter pursuant to the foregoing paragraph, the Company, such
Selling Stockholder or such person shall promptly notify the Underwriter in
writing of the institution of such Proceeding and the Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Underwriter shall not
relieve the Underwriter from any liability which the Underwriter may have to the
Company, any Selling Stockholder or any such person or otherwise. The Company,
such Selling Stockholder or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company, such Selling Stockholder or such person unless the
employment of such counsel shall have been authorized in writing by the
Underwriter in connection with the defense of such Proceeding or the Underwriter
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to or in conflict
with those available to the Underwriter (in which case the Underwriter shall not
have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but the Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the Underwriter), in any of which events such fees
and expenses shall be borne
-23-
by the Underwriter and paid as incurred (it being understood, however, that the
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Underwriter shall not be liable
for any settlement of any such Proceeding effected without the written consent
of the Underwriter but if settled with the written consent of the Underwriter,
the Underwriter agrees to indemnify and hold harmless the Company, any Selling
Stockholder and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request to the extent required to do so by such second sentence prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by each of the parties hereto from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the parties hereto in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits received by
the parties hereto shall be deemed to be in the same respective proportions as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the parties hereto, bear
to the aggregate public offering price of the Shares. The relative fault of the
parties hereto shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission relates to information supplied by the Company and/or the
Selling Stockholders or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party
-24-
in connection with investigating, preparing to defend or defending any
Proceeding.
(d) The Company, the Selling Stockholders and the Underwriter each
agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding the
provisions of this Section 9, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by the Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which
the Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission and
no Selling Stockholder shall be required to contribute any amount (that,
together with any indemnity paid pursuant to this Agreement) exceeds the
amount received by such Selling Stockholder in connection with the offer
and sale of Shares pursuant to this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
and the Selling Stockholders contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf
of the Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who controls
the Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, or by or on behalf of the Company, its directors or
officers, any Selling Stockholder or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the sale and
delivery of the Shares. The Company, each of the Selling Stockholders and
the Underwriter each agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company
or the Selling Stockholders, against any of the Company's or Selling
Stockholder's officers or directors, as the case may be, in connection with
the sale of the Shares, or in connection with the Registration Statement or
the Prospectus.
10. Information Furnished by the Underwriter and the Selling
Stockholders. Schedule D attached hereto sets forth the statements in the
Prospectus that constitute the only information furnished by or on behalf of the
Underwriter and each of the Selling Stockholders as such information is referred
to in Sections [o],[o] and [o] hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriter, shall be sufficient in all respects if delivered or sent to UBS
Limited, 000 Xxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX, Attention: ECMG; if to the
Company, shall be sufficient in all respects if delivered or sent to the Company
at the offices of the Company at [o], Attention: [o]; and if to the Selling
Stockholders, shall be sufficient in all respects if delivered or sent to [o] at
[o], Attention: [o].
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or
-25-
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement ("Claim"), directly or indirectly, shall be governed by, and
construed in accordance with, the laws of the State of New York. The Section
headings in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
13. Submission to Jurisdiction.
(a) Except as set forth in Section 13(b) below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and
the Company consents to the jurisdiction of such courts and personal
service with respect thereto. The Company and each of the Selling
Stockholders (other than the EBRD) hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of or in any way relating to this Agreement is brought by any third party
against UBS Limited or any indemnified party. Each of UBS Limited, the
Selling Stockholders and the Company waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement. The
Company and each of the Selling Stockholders (other than the EBRD) agrees
that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company
and may be enforced in any other courts to the jurisdiction of which the
Company is or may be subject, by suit upon such judgment. Each of First NIS
Regional Fund SICAV and Cavendish Nominees Limited hereby appoints, without
power of revocation, CT Corporation System, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, and Capital International Group Global Emerging Markets
Private Equity Fund L.P. hereby appoints, without power of revocation,
Capital International Research, Inc., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, respectively, to accept and acknowledge on its behalf
service of any and all process which may be served in any action,
proceeding or counterclaim in any way relating to or arising out of this
Agreement (CT Corporation System and Capital International Research, Inc.
each being hereafter referred to as the context provides as the "Agent" for
its respective appointer)
(b) Notwithstanding the foregoing, if any Claim arises from or in
connection with this Agreement, or any supplement, modifications or
additions thereto, to which the EBRD is or may be a party, such dispute may
be settled only by arbitration in accordance with the UNCITRAL Arbitration
Rules (the "Rules") as at present in force by a panel of three arbitrators
and the appointing authority shall be the London Court of International
Arbitration. The seat and place of arbitration shall be London, England and
the English language shall be used throughout the arbitral procedures. Each
of the parties hereby waives any rights under the Arbitration Xxx 0000 or
otherwise appeal to any arbitration award to, or to seek determination of a
preliminary point of law by, the courts of England. The arbitral tribunal
shall not be authorised to take or provide, and each of the parties agrees
that it shall not seek from any judicial authority, any interim measures of
protection or pre-award relief against the EBRD, any provisions of the
Rules notwithstanding.
-26-
14. Judgment in Foreign Currency. The joint and several obligations of
the Company or the Selling Stockholders in respect of any sum due to you
hereunder shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by you of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) you may in accordance with normal banking
procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to you
hereunder, the Company and the Selling Stockholders jointly and severally agree,
as a separate obligation and notwithstanding any such judgment, to indemnify you
against such loss. If the United States dollars so purchased are greater than
the sum originally due to you hereunder, you agree to promptly pay to the
Company or the Selling Stockholders an amount equal to the excess of the United
States dollars so purchased over the sum originally due to you hereunder.
15. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriter, the Selling Stockholders and the
Company and to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from the Underwriter) shall acquire
or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the
Underwriter, each of the Selling Stockholders and the Company and their
successors and assigns and any successor or assign of any substantial portion of
the Company's, each of the Selling Stockholder's and any of the Underwriter's
respective businesses and/or assets.
18. Prior Agreements. This Agreement shall supersede all prior oral or
written agreements and arrangements among the parties hereto, including, without
limitation, the Fee and Expense Letter, dated [o].
-27-
If the foregoing correctly sets forth the understanding among you,
the Company and the Selling Stockholders, please so indicate in the space
provided below for the purpose, whereupon this agreement and your acceptance
shall constitute a binding agreement among you, the Company and the Selling
Stockholders.
Very truly yours,
GOLDEN TELECOM, INC.
By:
-----------------------------------
Title:
Name:
FIRST NIS REGIONAL FUND SICAV
By:
-----------------------------------
Title:
Name:
CAVENDISH NOMINEES LIMITED
By:
-----------------------------------
Title:
Name:
CAPITAL INTERNATIONAL GLOBAL EMERGING
MARKETS PRIVATE EQUITY FUND L.P.
By:
-----------------------------------
Title:
Name:
Accepted and agreed to as of the
date first above written, on
behalf of itself
UBS LIMITED
By:
----------------------------
Title:
EXHIBIT 1
FORM OF XXXXXXXXXX & XXXXX LLC U.S. OPINION
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as included in the Registration Statement and the
Prospectus, including, without limitation, the Incorporated Documents, and to
execute and deliver the Underwriting Agreement as contemplated therein.
2. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, have a material adverse effect on
the business, properties, financial condition, results of operation or prospects
of the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
3. The Company has an authorized and outstanding capital stock as set
forth in the Registration Statement or the Prospectus (including, without
limitation, the Incorporated Documents); all of the issued and outstanding
shares of capital stock of the Company, including the Shares, have been duly
authorized and validly issued, fully paid and non-assessable and are free of
statutory preemptive rights and, to our knowledge after due inquiry, were not
issued in violation of any other preemptive right, resale right, right of first
refusal or similar right.
4. The execution, delivery and performance of the Underwriting
Agreement by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not result in any breach or violation of or
constitute a default under (nor constitute any event which with notice, lapse of
time or both would result in any breach of or constitute a default under) the
charter or by-laws of the Company.
5. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
6. The capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof included in the Registration
Statement and the Prospectus (including, without limitation, the Incorporated
Documents).
7. The Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial data contained therein as
to which we express no opinion) comply as to form in all material respects with
the requirements of the Act; and the conditions to the use of Form S-3 have been
satisfied; the Incorporated Documents, at the time they became effective or were
filed with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act
(except as to the financial statements and schedules and other financial data
contained therein as to which we express no opinion).
8. The Registration Statement has become effective under the Act and,
to our knowledge after due inquiry, no stop order proceedings with respect
thereto are pending or threatened under the Act and any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424 under the Act has
been made in the manner and within the time period required by such Rule 424.
9. No approval, authorization, consent or order of or filing with any
federal or New York state, governmental or regulatory commission, board, body,
authority or agency is required in connection with the (i) due execution and
delivery of the Underwriting Agreement by the Company, (ii) performance by the
Company of its obligations thereunder, or (iii) consummation by the Company of
the transactions contemplated thereby other than registration of the Shares
under the Act (except that we do not express an opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriter).
10. The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act.
11. The information in the Registration Statement and the Prospectus
under the headings ["Description of Capital Stock," "Indemnities," "Plan of
Distribution" and "Certain Relationships and Related Transactions," "[o]"],
insofar as such statements constitute a summary of documents or matters of law,
and those statements in the Registration Statement or the Prospectus (including,
without limitation, the Incorporated Documents) that are descriptions of
contracts, agreements or other legal documents or of legal proceedings, or refer
to statements of law or legal conclusions, are accurate in all material respects
and present fairly the information required to be shown.
12. Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 13 of the Underwriting
Agreement, validly and irrevocably submitted to the personal jurisdiction of any
New York court of competent jurisdiction in any action arising out of or
relating the Underwriting Agreement, or the transactions contemplated thereby,
has validly and irrevocably waived any objection to the venue of a proceeding in
any such court, and has validly and irrevocably waived any objection to the
venue of a proceeding in any such court, and has validly and irrevocably
appointed [CT Corporation] as its authorized agent for the purposes described in
Section 13 of the Underwriting Agreement; and service of process effected on
such agent in the manner set forth in Section 13 of the Underwriting Agreement
will be effective to confer valid personal jurisdiction over the Company.
13. In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriter at which the
contents of the
2
Registration Statement and the Prospectus (including, without limitation, the
Incorporated Documents) were discussed and, although we are not passing upon and
do not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or any of the
Incorporated Documents (except as and to the extent stated in subparagraphs [ ]
above), on the basis of the foregoing nothing has come to our attention that
causes us to believe that the Registration Statement or any amendment thereto at
the time such Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any supplement thereto at the date of such Prospectus
or such supplement, and at the time of purchase, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that we express no opinion with respect to the financial statements and
schedules and other financial data included in the Registration Statement or the
Prospectus).
3
EXHIBIT 2
FORM OF XXXXXXXXXX & XXXXX LLC RUSSIAN OPINION
1. Each of limited liability company "EDN Sovintel" ("Sovintel"),
limited liability company "Sibchallenge Telecom" ("Sibchallenge"), open joint
stock company "Combellga" ("Combellga"), open joint stock company "Comincom"
("Comincom") and limited liability company "Agency for Business Communications"
("ADS", and collectively with Sovintel, Sibchallenge, Combellga and Comincom,
the "Russian Subsidiaries") has been duly incorporated and is validly existing
as a limited liability company, joint stock company or similar entity, organized
under the laws of the Russian Federation, has the right to own, lease and
operate its properties and has the full corporate power and authority to conduct
its business as included in the Registration Statement and the Prospectus,
including, without limitation, the Incorporated Documents.
2. All of the ownership interests or outstanding shares of each Russian
Subsidiary have been duly authorized and validly issued, are fully paid and the
Company or an affiliate of the Company is the registered owner of the ownership
interests or shares of each of the Russian Subsidiaries and such ownership
interests or shares, in each case, to our knowledge, are subject to no security
interest, other encumbrance or adverse claim; and, to our knowledge, no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into ownership interests or shares in
the Russian Subsidiaries are outstanding; and the Company's ownership interest
in each Russian Subsidiary is as included in the Registration Statement and
Prospectus, including, without limitation, the Incorporated Documents.
3. Each of Sovintel, Sibchallenge, Combellga, Comincom and ADS has all
licenses issued by the Ministry of Transportation and Communications (formerly,
the State Committee of the Russian Federation on Communications and Information
or the Ministry of Communications), permissions issued by the State Service for
Communications Oversight (also referred to as Gossviaznadzor), and/or
radio-frequency allocations issued by the State Commission for Radio Frequencies
necessary to conduct the telecommunications business now operated by it as
disclosed in the Registration Statement and Prospectus.]
4. The statements included in each of the Registration Statement and
the Prospectus, including, without limitation, the Incorporated Documents, under
the caption "Overview of Telecommunications Market in Russia and Ukraine,"
"Overview of the Political and Economic Environment in Russia and Ukraine,"
"Overview of the Legal, Tax and Regulatory Regimes in Russia and Ukraine,"
"Management's Discussions and Analysis of Financial Condition and Results of
Operations," "Risks Associated With Doing Business In Russia, Ukraine and Other
Countries of the Commonwealth Of Independent States," "Risks Associated With Our
Business," "Legal Proceedings" and "[o]," insofar as (i) they purport to
summarize the laws and regulations of the Russian Federation referred to
therein, fairly summarize such laws and regulations in all material
respects and are true and accurate in all material respects, and (ii) such
statements constitute descriptions of contracts, agreements or other legal
documents or of legal proceedings, are accurate in all material respects and
present fairly the information required to be shown with regard to the Russian
Subsidiaries.
5. The Company's agreement to the choice of law and submission to
jurisdiction provisions set forth in Sections 12 and 13 of the Underwriting
Agreement will be recognized by the courts of the Russian Federation; and the
courts of the Russian Federation would enforce the indemnification and
contribution provisions set forth in Section 9 of the Underwriting Agreement
subject to the qualifications and assumptions set forth herein.
6. (A) All dividends and other distributions declared and payable on
the ownership interests or shares of the Russian Subsidiaries may be paid (i) in
Russian rubles that, if received by non-residents of the Russian Federation, may
be converted into U.S. Dollars without the necessity of obtaining any
governmental authorization in the Russian Federation subject to conversion and
repatriation restrictions described in the Prospectus, and (ii) if paid to
non-residents of the Russian Federation, may be paid in U.S. Dollars without the
necessity of obtaining any governmental authorization in the Russian Federation
and (B) any U.S. Dollars so received by non-residents of the Russian Federation
may be transferred out of the Russian Federation without the necessity of
obtaining any governmental authorization in the Russian Federation.
5
EXHIBIT 3
FORM OF GENERAL COUNSEL OPINION
1. [Each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation, general partnership, limited partnership,
limited liability company, or similar entity in good standing under the laws of
the jurisdiction of its incorporation, with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, including, without
limitation, the Incorporated Documents; each Company's subsidiary is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) of the business, properties, results of operation or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); all
of the outstanding shares of capital stock of each of the Company's subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable
and (except as otherwise stated in the Registration Statement or the Prospectus
(including, without limitation, the Incorporated Documents) are owned by the
Company, in each case subject to no security interest, other encumbrance or
adverse claims; and, to my knowledge after due inquiry, no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in any Company's subsidiary are outstanding.]
2. The execution, delivery and performance of the Underwriting
Agreement by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach of or constitute a
default under) (i) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, (ii) any federal, state, local or foreign law, regulation or
rule or any decree, judgment or order applicable to the Company or any of its
subsidiaries, or (iii) any Governmental License or Telecommunications License.
3. All of the issued and outstanding shares of capital stock of the
Company have been validly issued in compliance with all federal and state
securities laws.
4. (a) Neither the Company nor any of its subsidiaries is in breach or
violation (nor has any event occurred which with notice, lapse of time, or both
would result in any breach or violation) of its respective charter or By-Laws;
(b) to my knowledge after due inquiry, except as disclosed in the Registration
Statement, neither the Company nor any of its subsidiaries is in breach or
violation of or in default under
(nor has any event occurred which with notice, lapse of time, or both would
result in any breach of, or constitute a default under or give the holder of any
indebtedness (or a person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness
under) (i) any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, (ii) any license, lease, contract or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which any of them or any of their respective properties may be bound
or affected, (iii) any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company or any of its
subsidiaries, or (iv) any Governmental License or Telecommunications License,
except where the breach, violation or default would not have a Material Adverse
Effect.
5. There are no actions, suits, claims, investigations or proceedings
pending, or to my knowledge after due inquiry, threatened or contemplated to
which the Company or any of its subsidiaries or any of their respective
directors or officers is a party or to which any of their respective properties
is subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency
which are required to be described in the Registration Statement or the
Prospectus (including, without limitation, the Incorporated Documents) but are
not so described.
6. [Except as disclosed in the Registration Statement, and except where
the absence of any license, permit, authorization consent or approval, or where
the failure to make any filing, would not, singly or in the aggregate, result in
a Material Adverse Effect (i) each of limited liability company "EDN Sovintel"
("Sovintel"), limited liability company "Sibchallenge Telecom" ("Sibchallenge"),
open joint stock company "Combellga" ("Combellga"), open joint stock company
"Comincom" ("Comincom") and limited liability company "Agency for Business
Communications" ("ADS", and collectively with Sovintel, Sibchallenge, Combellga
and Comincom, the "Russian Subsidiaries") has all necessary licenses, permits,
authorizations, consents and approvals issued by the appropriate local or
foreign regulatory agencies or bodies to conduct the business now operated by it
(collectively, "Governmental Licenses"), including licenses issued by State
Committee of the Russian Federation on Communications and Information (formerly
the Ministry of Communications) and permissions issued by the State Service for
Communications Oversight (also referred to as Gossviaznadzor), and/or
radio-frequency allocations issued by the State Commission for Radio Frequencies
and other appropriate Russian authorities (collectively, the "Telecommunications
Licenses"), and, to my knowledge after due inquiry, has made all necessary
filings required under any local or foreign law, regulation or rule.]
7. To my knowledge after due inquiry, the Russian Subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
including all such Telecommunications Licenses, except where the failure so to
comply would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Governmental Licenses, including all of the
Telecommunications Licenses, are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or Telecommunications Licenses or
the failure of such Governmental Licenses or Telecommunications Licenses to be
in full force and effect would not have a Material
7
Adverse Effect; and no Governmental Licenses or Telecommunications Licenses
contain any restriction that is likely to have a Material Adverse Effect.
8. To my knowledge after due inquiry, none of the Russian Subsidiaries
has received notice of (i) any proceedings relating to revocation, suspension or
modification of, any Governmental License or (ii) any violation of any
Telecommunications License or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Russian
Subsidiaries, except where any such notice would not have a Material Adverse
Effect.
8
EXHIBIT 4
FORM OF UKRAINIAN COUNSEL OPINION
1. Each of limited liability company "Golden Telecom", a company
organized under the laws of Ukraine ("Golden Telecom (Ukraine)") and limited
liability company "Invest-Holding", a company organized under the laws of
Ukraine (together with Golden Telecom (Ukraine), the "Ukrainian Subsidiaries")
has been duly incorporated and is validly existing as a limited liability
company under the laws of Ukraine, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus, including, without limitation,
the Incorporated Documents.
2. All of the ownership interests in each Ukrainian Subsidiary have
been duly authorized and validly issued, are fully paid and non-assessable, are
owned directly or indirectly by GTS Ukrainian TeleSystems, L.L.C., CellUkraine
Ltd. and SFMT-Rusnet, Inc. (collectively, the "Intermediary Holders"), and, in
each case, to our knowledge, after due inquiry, are not subject to security
interest, other encumbrances, or adverse claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue, or other
rights to convert any obligation into, ownership interests in the Ukrainian
Subsidiaries are outstanding; and the ownership interests of the Intermediary
Holders in each Ukrainian Subsidiary are as included in the Registration
Statement and the Prospectus, including, without limitation, the Incorporated
Documents.
3. To our knowledge after due inquiry, there are no actions, suits,
claims, investigations or proceedings pending, threatened or contemplated, to
which any of the Ukrainian Subsidiaries or any of their respective directors or
officers is a party or to which any of their respective properties is subject,
before or by any Ukrainian state or local governmental or regulatory commission,
board, body, authority or agency, which are required to be described in the
Registration Statement or the Prospectus (including, without limitation, the
Incorporated Documents) but are not so described.
4. Each Ukrainian Subsidiary has all necessary licenses, permits,
authorizations, consents and approvals issued by the appropriate Ukrainian
regulatory agencies or bodies and necessary to conduct the business now operated
by it (collectively, the "Governmental Licenses"), including, without
limitation, (i) licenses issued by the State Committee for Communications and
Informatization of Ukraine, and other appropriate Ukrainian authorities, and
(ii) radio-frequency allocations and permission for sale of radio electronic
facilities and radio emissive devices issued by the Ukrainian State Center for
Radio Frequencies and Supervision of Telecommunications (collectively, the
"Telecommunications Licenses"), and has made all necessary filings required
under Ukrainian law, except where the failure so to have or file would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) of the business, properties, results of
operation or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"); the Ukrainian Subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, including
all such Telecommunications Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse Effect; all
of the Governmental Licenses, including all of the Telecommunications Licenses,
are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or Telecommunications Licenses or the failure of such
Governmental Licenses or Telecommunications Licenses to be in full force and
effect would not have a Material Adverse Effect; and no Governmental Licenses or
Telecommunications Licenses contain any restriction that is likely to have a
Material Adverse Effect.
5. None of the Ukrainian Subsidiaries is in violation of, or in default
under, or has received notice of any proceedings relating to revocation,
suspension or modification of, any Governmental License or Telecommunications
License or any Ukrainian law, regulation or rule or any decree, order or
judgment applicable to the Ukrainian Subsidiaries.
6. The statements included in the Registration Statement and the
Prospectus, including, without limitation, the Incorporated Documents, under the
captions "Overview of Telecommunications Market in Russia and Ukraine",
"Overview of the Political and Economic Environment in Russia and Ukraine",
"Overview of the Legal, Tax and Regulatory Regimes in Russia and Ukraine",
"Management's Discussions and Analysis of Financial Condition and Results of
Operations", "Risks Associated with Doing Business in Russia, Ukraine and Other
Countries of the CIS", "Risks Associated with Our Business", and "Legal
Proceedings", insofar as (i) they purport to summarize the laws and regulations
of Ukraine referred to therein, fairly summarize such laws and regulations in
all material respects and are true and accurate in all material respects, and
(ii) such statements constitute descriptions of contracts, agreements or other
legal documents or of legal proceedings, are accurate in all material respects
and present fairly the information required to be shown with regard to the
Ukrainian Subsidiaries.
7. The execution, delivery and performance of the Underwriting
Agreement by the Company, the sale of the shares and the consummation by the
Company of the transactions contemplated therein do not and will not conflict
with, result in any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would result in
any breach of or constitute a default under) (i) the charters, by-laws or other
constituent documents of any of the Ukrainian Subsidiaries, (ii) any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, bank loan or credit agreement, note or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which any of the Ukrainian Subsidiaries is a party or by which any of them or
any of their respective properties may be bound or affected, except where such
breach, violation or default would not have, singly or in the aggregate, a
Material Adverse Effect, (iii) Ukrainian law, regulation or rule or any decree,
judgment or order applicable to any of the Ukrainian Subsidiaries; or (iv) any
Governmental License, including Telecommunications License.
8. None of the Ukrainian Subsidiaries is in breach or violation of, or
in default under (nor has any event occurred which with notice, lapse of time,
or both would
10
result in any breach of, or constitute a default under, or give the holder of
any indebtedness (or a person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (i) its respective charter, by-laws or other constituent
documents, or any license, except where such breach, violation or default would
not have, singly or in the aggregate, a Material Adverse Effect, (ii) any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, bank loan or credit agreement, note or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument, to which any Ukrainian Subsidiary is a party or by which any of them
or any of their properties may be bound or affected, except where such breach,
violation or default would not have, singly or in the aggregate, a Material
Adverse Effect, or (iii) any Ukrainian law, regulation or rule or any decree,
judgment or order applicable to any Ukrainian Subsidiary.
9. (A) The Company's agreement to the choice of law and submission to
jurisdiction provisions set forth in Sections 12 and 13 of the Underwriting
Agreement will be recognized in the courts of Ukraine; (B) the irrevocable
submission of the Company to the exclusive jurisdiction of the courts of the
State of New York, the waiver by the Company of any objection to the venue of a
proceeding of a New York court and the agreement of the Company that the
Underwriting Agreement shall be governed by and construed in accordance with the
laws of the State of New York are legal, valid and binding; and (C) service of
process effected in the manner set forth in Section 13 of the Underwriting
Agreement will be effective, insofar as the law of Ukraine is concerned, to
confer valid personal jurisdiction over the Company.
10. (A) All dividends and other distributions declared and payable on
the ownership interests of the Ukrainian Subsidiaries may be paid (i) in Hryvnya
that, if received by non-residents of Ukraine may be converted into U.S. Dollars
without the necessity of obtaining any governmental authorization in Ukraine
subject to conversion and repatriation restrictions, and (ii) if paid to
non-residents of Ukraine, may be paid in U.S. Dollars without the necessity of
obtaining any governmental authorization in Ukraine, subject to conversion and
repatriation restrictions; (B) any U.S. Dollars so received by non-residents of
Ukraine may be transferred out of Ukraine without the necessity of obtaining any
governmental authorization in Ukraine; and (C) (i) all such dividends are, and
other distributions may be, subject to withholding taxes unless an international
treaty provides otherwise and the procedures set forth under Ukrainian law
enabling the Ukrainian Subsidiaries to avail themselves of such treaty benefits
are followed, and (ii) such dividends and distributions are otherwise free and
clear of any other tax or deduction in Ukraine, provided that all profits and
other taxes have been paid by the Ukrainian Subsidiaries prior to the payment of
such dividends and distributions.
11
EXHIBIT 5
FORM OF SELLING STOCKHOLDER OPINION
1. Tithe Underwriting Agreement and has been duly authorized,
executed and delivered by the Selling Stockholder is a legal, valid and binding
agreement of the Selling Stockholder, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally, (ii) general principles of equity
(whether considered in a proceeding at law or in equity) and (iii) limitations
imposed by federal or state securities laws or principles of public policy on
enforcement of rights to indemnification and contribution.
[2. Upon payment for the Shares being purchased from the
Selling Stockholder and the delivery to The Depository Trust Company or such
other securities intermediary ("DTC") of such Shares, both as provided for in
the Underwriting Agreement, and the crediting of such Shares to the
Underwriter's account with DTC, the Underwriter will acquire a valid security
entitlement with respect to the Shares for which it has paid and that have been
credited to its account, and no action based on an adverse claim may be asserted
against the Underwriter with respect to its security entitlement (assuming that
the Underwriter is without notice of any such adverse claim).]
3. The Selling Stockholder has and at the time of delivery of
such Shares will have, full [partnership] right, power and capacity to sell,
assign, transfer and deliver such Shares in the manner provided in the
Underwriting Agreement.
4. The execution, delivery and performance of the Underwriting
Agreement by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated thereby will not (i) result in a
violation of its [limited partnership agreement], (ii) result in any breach or
violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach of or constitute a
default under) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Selling Stockholder is a party or by
which it or any of its respective properties may be bound or affected and which
is listed on the Officer's Certificate of the Selling Stockholder attached
hereto, or (iii) violate any Applicable Law or any judgment, or decree of any
court or arbitrator that is listed on such Officer's Certificate of the Selling
Stockholder. For purposes of this opinion, the term "Applicable Law" means the
Delaware Revised Uniform Limited Partnership Act and those laws, rules and
regulations of the United States of America and the State of New York, in each
case which in our experience are normally applicable to the transactions of the
type contemplated by the Underwriting Agreement and excludes all state and
foreign securities laws, the anti-fraud requirements under the Act, and the
Exchange Act.
5. No approval, authorization, consent or order of or filing
with any Governmental Authority, which has not been obtained, taken or made, is
required in connection with the (i) due execution and delivery of the
Underwriting Agreement by the
Selling Stockholder, (ii) performance by the Selling Stockholder of its
obligations thereunder, or (iii) consummation by the Selling Stockholder of the
transactions contemplated thereby other than registration of the Shares under
the Act (except that we do not express an opinion as to any necessary
qualification under any state or foreign securities or blue sky laws). For
purposes of this opinion, the term "Governmental Authority" means any executive,
legislative, judicial, administrative or regulatory body of the State of New
York or the United States of America.
6. [To be given by non-U.S. Selling Stockholders: The Selling
Stockholder's agreement to the choice of law provisions set forth in Section 14
of the Underwriting Agreement will be recognized by the courts of the
[jurisdiction of Selling Stockholder incorporation]; the irrevocable submission
of the Selling Stockholder to the exclusive jurisdiction of a New York court,
the waiver by the Selling Stockholder of any objection to the venue of a
proceeding of a New York court and the agreement of the Selling Stockholder that
the Underwriting Agreement shall be governed by and construed in accordance with
the laws of the State of New York are legal, valid and binding; service of
process effected in the manner set forth in Section 13 of the Underwriting
Agreement will be effective, insofar as the law of [jurisdiction of Selling
Stockholder incorporation] is concerned, to confer valid personal jurisdiction
over the Selling Stockholder; and judgment obtained in a New York court arising
out of or in relation to the obligations of the Selling Stockholder under the
Underwriting Agreement would be enforceable against the Selling Stockholder in
the courts of [jurisdiction of Selling Stockholder incorporation].]
7. [To be given by non-U.S. Selling Stockholders: The
indemnification and contribution provisions set forth in Section 9 of the
Underwriting Agreement do not contravene the public policy or laws of
[jurisdiction of Selling Stockholder incorporation].]
13
EXHIBIT 6
FORM OF EBRD OPINION
1. The Underwriting Agreement has been duly authorised, executed and
delivered by the EBRD and is a valid and legally binding agreement of the EBRD.
2. [From outside counsel: Upon payment for the Shares being purchased
from the Selling Stockholder and the delivery to The Depository Trust Company or
such other securities intermediary ("DTC") of such Shares, both as provided for
in the Underwriting Agreement, and the crediting of such Shares to the
Underwriter's account with DTC, the Underwriter will acquire a valid security
entitlement with respect to the Shares for which it has paid and that have been
credited to its account, and no action based on an adverse claim may be asserted
against the Underwriter with respect to its security entitlement (assuming that
the Underwriter is without notice of any such adverse claim).]
EXHIBIT 7
[TO COME]
EXHIBIT 8
[TO COME]
EXHIBIT 9
[TO COME]
SCHEDULE A
Selling Stockholders Number of Shares
-------------------- ----------------
--------------
Total.........................
==============
SCHEDULE B
[TO COME]
19
SCHEDULE C
LIST OF OWNED ENTITIES
1. ZAO Zenit Telecom
2. ZAO World Trade Telecom
3. OOO Nakhodka Telecom
4. OOO XxxXxxxXxxx
0. XXX Voenno-Promyshlennyi Bank
6. OOO Sakhalin Telecom
7. OAO Mosoblinvest
8. OAO City
20
SCHEDULE D
[TO COME]
21
