EXHIBIT F
Conformed Copy
________________________________________________________________________
SHAREHOLDERS AGREEMENT
dated as of December 1, 1998
by and among
TELENOR EAST INVEST AS
and
XX. XXXXXX XXXXXXXXXX XXXXX,
GLAVSOTKOM LLC,
THE FUND FOR NON-COMMERCIAL PROGRAMS "BEE LINE"
XXXXX X. XXXXXX, XX
GENEVA INVESTMENT TRUST I, L.L.C.
and
OTHER HOLDERS OF CAPITAL STOCK OF OPEN JOINT STOCK COMPANY "VIMPEL-
COMMUNICATIONS" FROM TIME TO TIME
________________________________________________________________________
SHAREHOLDERS AGREEMENT dated as of December 1, 1998 by and among TELENOR
EAST INVEST AS, a corporation organized and existing under the laws of Norway
("Telenor"), XX. XXXXXX XXXXXXXXXX XXXXX, a Russian citizen ("Xx. Xxxxx"),
GLAVSOTKOM LLC, a limited liability company organized and existing under the
laws of the Russian Federation ("Glavsotkom"), THE FUND FOR NON-COMMERCIAL
PROGRAMS "BEE LINE", a non-commercial organization organized and existing under
the laws of the Russian Federation (the "Bee Line Fund"), XXXXX X. XXXXXX, XX, a
citizen of the United States ("Xx. Xxxxxx"), GENEVA INVESTMENT TRUST I, L.L.C.,
a limited liability company organized and existing under the laws of Delaware
("Geneva"), and such other holders of capital stock of the Company as shall be
party hereto from time to time.
WITNESSETH
WHEREAS, Open Joint Stock Company "Vimpel-Communications", a company
organized and existing under the laws of the Russian Federation (the "Company"),
and Telenor are parties to the Primary Agreement dated as of December 1, 1998
(the "Primary Agreement") between Telenor and the Company;
WHEREAS, Xx. Xxxxx, Glavsotkom, the Bee Line Fund, Xx. Xxxxxx and Geneva
(collectively, the "Existing Shareholders") beneficially own the issued and
outstanding shares of capital stock of the Company described in Schedule 1
hereto opposite their respective names;
WHEREAS, each of Xx. Xxxxxx and Geneva are entering into this Agreement
solely for the purposes of (a) making the representations and warranties set
forth in Article II of this Agreement and (b) subject to the conditions and on
the terms set forth therein, agreeing to be bound by the obligations and
entitled to the rights arising under Article IV, Section 5.02 and Article VI of
this Agreement, and under no circumstances whatsoever shall Xx. Xxxxxx or Geneva
be liable, or incur any liability whatsoever, in connection with any breach (or
alleged breach) of any other provision set forth in this Agreement; and
WHEREAS, Telenor and the Existing Shareholders believe it is in the best
interests of the Company that provision be made for the continuity and stability
of the business and management of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I DEFINITIONS AND INTERPRETATION
1.01 Definitions
-----------
As used herein, the following terms shall have the following meanings:
"Actions or Proceedings" shall mean any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Agreement" shall mean this Shareholders Agreement.
"amendments to the Charter" shall have the meaning specified in Section
5.04 of the Primary Agreement.
"Assets and Properties" shall mean, with respect to any Person, all assets
and properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, whether absolute, accrued,
contingent, fixed or otherwise and wherever situated), including the goodwill
related thereto, used, operated, owned or leased by such Person, including,
without limitation, cash, cash equivalents, investments, accounts and notes
receivable, chattel paper, documents, instruments, general intangibles, real
estate, equipment, inventory, goods and Intellectual Property.
"Bee Line Fund" shall have the meaning specified in the preamble hereto.
"Board" shall mean the Board of Directors of the Company.
"Charter" shall mean the most recent version of the charter (ustav) of the
Issuer, as registered with the MRC on August 23, 1996, and as amended on October
3, 1996 (approved by the Board on September 30, 1996), December 17, 1996
(approved by the GMS on November 20, 1996), December 17, 1996 (approved by the
GMS on November 29, 1996) and September 3, 1998 (approved by the GMS on June 16,
1998).
"Class B Preferred Stock" shall mean Class B cumulative preferred stock
(Priviligirovannye kumulyativnye akstii tipa B) of the Company.
"Closing" shall have the meaning specified in the Primary Agreement.
"Company" shall have the meaning specified in the first recital hereto.
"Contract" shall mean any agreement, preliminary agreement, letter of
intent (to the extent binding or creating liability), lease, license, evidence
of Indebtedness, mortgage, indenture, security agreement or other contract
(whether written or oral).
"Controlled Affiliate" shall mean, with respect to any Person, any other
Person which directly or indirectly controls, or is under common control with,
or is controlled by, such Person and, if such Person is an individual, any
relative or spouse of such individual, or any relative of such spouse, any one
of whom has the same home as such individual, and any trust or estate for which
such individual serves as a trustee or in a similar capacity or in which such
individual has a substantial beneficial interest and any Person who is
controlled by any such member or trust. As used in this definition, "control"
(including,
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with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise) of any other
Person, provided that, in any event, any Person which owns, directly or
indirectly, more than 50% of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or more than 50%
of the partnership or other ownership interests of any other Person (other than
as a limited partner of such other Person) will be deemed to control such
corporation or other Person.
"Xx. Xxxxx" shall have the meaning specified in the preamble hereto.
"Endorsement" shall mean an endorsement to this Agreement in the form of
Exhibit A hereto.
"Ericsson Agreements" shall have the meaning specified in Section 2.07(c).
"Escrow Agreement" shall mean the Escrow Agreement dated December 1, 1998 by
and among the Company, Telenor and Den norske Bank ASA, as Escrow Agent.
"Existing Shareholders" shall have the meaning specified in the second
recital hereto.
"Final Payment Date" shall mean the date on which the final installment of
the Purchase Price is paid to the Company under the terms of the Escrow
Agreement.
"First Board Date" shall mean the date of the first meeting of the Board at
which the three duly elected designees of Telenor eligible to sit on the Board
and at least one of them is present at such meeting.
"First Payment Date" shall mean the date on which the payment of the first
installment of the Purchase Price is paid to the Company under the terms of the
Primary Agreement.
"Geneva" shall have the meaning specified in the preamble hereto.
"Glavsotkom" shall have the meaning specified in the preamble hereto.
"Laws" shall mean all laws, decrees, resolutions, instructions, statutes,
rules, regulations, acts, ordinances and other pronouncements having the effect
of law or regulation of the Russian Federation, any other country or any state,
as well as any county, city or other political subdivision of any of the
foregoing.
"Governmental or Regulatory Authority" shall mean any court, tribunal,
arbitrator, legislature, government, ministry, committee, inspectorate,
authority, agency, commission, official or other instrumentality of the Russian
Federation, any other country or any state, as well as any county, city or other
political subdivision of any of the foregoing.
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"Guarantee Agreement" shall mean the Guarantee Agreement dated as of
December 1, 1998 between Telenor AS and the Company.
"Indebtedness" shall mean, with respect to any Person, all obligations of
such Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or
similar instruments, (c) for the deferred purchase price of goods or services
(other than trade payables or accruals incurred in the ordinary course of
business), (d) under capital leases or (e) in the nature of a guarantee of any
obligation described in clauses (a) through (d) above of any other Person.
"Intellectual Property" shall mean patents and patent rights, licenses,
inventions, copyrights and copyright rights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks and trademark rights, service
marks and service xxxx rights, trade names and trade name rights, service names
and service name rights, brand names, processes formulae, trade dress, business
and product names, logos, slogans, industrial models, processes, designs,
methodologies, software programs (including all source codes) and related
documentation, technical information, manufacturing, engineering and technical
drawings, and all pending applications for and registrations of patents,
trademarks, service marks and copyrights.
"Licenses" shall mean all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"Xx. Xxxxxx" shall have the meaning specified in the preamble hereto.
"Order" shall mean any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each case, whether preliminary
or final).
"Person" shall mean any natural person, corporation, general partnership,
simple partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory Authority,
whether incorporated or unincorporated.
"Primary Agreement" shall have the meaning specified in the first recital
hereto.
"Principal Agreements" shall mean this Agreement, the Primary Agreement, the
Escrow Agreement, the Registration Rights Agreement, the Guarantee Agreement and
the Service Obligation Agreements (as defined in the Primary Agreement).
"Purchase Price" shall mean the purchase price for the Purchaser's Shares
under (and as defined in) the Primary Agreement.
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"Purchaser's Shares" shall mean Eight Million Nine Hundred Two Thousand Two
Hundred and One (8,902,201) shares of Common Stock, to be purchased by Telenor
on and subject to the terms and conditions of the Primary Agreement.
"Registration Rights Agreement" shall mean the Registration Rights Agreement
dated as of December 1, 1998 by and among the Company, Telenor, Xx. Xxxxx,
Glavsotkom and the Bee Line Fund.
"SEC" shall mean the Securities and Exchange Commission of the United States
of America.
"SEC Documents" shall have the meaning specified in Section 2.06(a),
provided that, with respect to Telenor, the SEC Documents shall include only the
SEC Documents filed by Telenor in connection with the transactions contemplated
by this Agreement and the other Principal Agreements.
"Securities Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder.
"Shareholder" shall mean any holder of Shares who is party to this
Agreement.
"Shares" shall mean shares of common stock or preferred stock of the Company
or American Depositary Shares representing interests therein, as the case may
be.
"Significant Zimin Shareholders" shall mean Xx. Xxxxx, the Bee Line Fund and
Glavsotkom.
"Specified Percentage" shall mean, with respect to Telenor or the Zimin
Shareholders, twenty-five percent (25%) plus one (1) Share of the voting capital
stock of the Company.
"Tag-Along Sale" shall mean a reference to a Telenor Tag-Along Sale or a
Zimin Tag-Along Sale, as the case may be.
"Telenor Shareholders" shall mean, collectively, Telenor and any of its
Controlled Affiliates which become a party to this Agreement in accordance with
Section 3.02, and, individually, any of them, and any Controlled Affiliate of
any of them which acquires Shares subject to this Agreement.
"Telenor Tag-Along Purchase Offer" shall have the meaning specified in
Section 3.04(a)(i)(C).
"Telenor Tag-Along Sale" shall have the meaning specified in Section
3.04(a)(i)(C).
"Telenor" shall have the meaning specified in the preamble hereto.
"Transfer" shall mean any transfer, sale, assignment, conveyance, pledge or
other disposition, as the case may be.
"UNCITRAL Rules" shall have the meaning specified in Section 7.13 hereof.
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"Zimin Shareholders" shall mean (a) during Xx. Xxxxx'x lifetime, Xx. Xxxxx
and any Controlled Affiliate of Xx. Xxxxx which is or becomes a party to this
Agreement in accordance with Section 3.02(a), and (b) after Xx. Xxxxx'x death or
incapacity, any Person which was, at the time of Xx. Xxxxx'x death or
incapacity, a Controlled Affiliate of Xx. Xxxxx and a party to this Agreement.
"Zimin Pledge" shall have the meaning specified in Section 2.07(c).
"Zimin Tag-Along Purchase Offer" shall have the meaning specified in
Section 3.04(b)(i)(C).
"Zimin Tag-Along Sale" shall have the meaning specified in Section
3.04(b)(i)(C).
1.02 Interpretation
--------------
Unless the context of this Agreement otherwise requires, the following
rules of interpretation shall apply to this Agreement:
(a) the singular shall include the plural, and the plural shall include
the singular;
(b) words of any gender shall include the other gender;
(c) the words "hereof", "herein", "hereby", "hereto" and similar words
refer to this entire Agreement and not to any particular Section or any other
subdivision of this Agreement;
(d) a reference to any "Section", "Schedule" or "Exhibit" is a reference
to a specific Section of, or Schedule or Exhibit to, this Agreement;
(e) a reference to any law, statute, regulation, notification or statutory
provision shall include any amendment, modification or re-enactment thereof, any
regulations promulgated thereunder from time to time, and any interpretations
thereof from time to time by any regulatory or administrative authority;
(f) a reference to any agreement, instrument, contract or other document
shall include any amendment, amendment and restatement, supplement or other
modification thereto; and
(g) a reference to any Person shall include such Person's successors and
permitted assigns under any agreement, instrument, contract or other document.
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ARTICLE II REPRESENTATIONS AND WARRANTIES
Each Shareholder party hereto on the date hereof hereby represents and
warrants as of the date hereof (and each Person who subsequently becomes a party
to this Agreement by executing an Endorsement, represents and warrants as of the
date on which such Person executes such Endorsement) that:
2.01 Organization of the Shareholders
--------------------------------
If not a natural Person, such Shareholder is duly organized and validly
existing under the laws of its jurisdiction of organization, with corporate
power and authority to carry on its business as it is currently being conducted
and to own, lease and operate its Assets and Properties.
2.02 Authority
---------
(a) Such Shareholder has full power and authority to enter into this
Agreement. The execution and delivery of this Agreement by such Shareholder has
been duly and validly authorized and, if such Shareholder is not a natural
person, no other corporate action on the part of such Shareholder, its board of
directors or its shareholders is necessary therefor.
(b) This Agreement has been duly and validly authorized, executed and
delivered by such Shareholder and constitutes the legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally or by general equitable principles
(whether applied by a court of law or equity).
(c) Such Shareholder has full power and authority to perform its
obligations hereunder.
2.03 No Conflicts
------------
The execution, delivery and performance by such Shareholder of this
Agreement, compliance by such Shareholder with all of the provisions hereof and
the consummation of the transactions by such Shareholder contemplated hereby:
(a) if such Shareholder is not a natural person, will not conflict with or
constitute a breach of any of the terms or provisions of, or a default under its
charter, memorandum of association, articles of association, certificate of
incorporation, by-laws or other like constituent documents, as the case may be;
(b) will not conflict with or constitute a breach of any Contract or
License to which such Shareholder is a party or by which it or any of its Assets
and Properties is bound, in each case, as in effect on the date hereof or, with
respect to any Person that subsequently becomes a party to this Agreement, as of
the date such Person becomes a party hereto; and
8
(c) will not violate or conflict with any Orders or Laws applicable to
such Shareholder, in each case, as in effect on the date hereof or, with respect
to any Person that subsequently becomes a party to this Agreement, as of the
date such Person becomes a party hereto.
2.04 Governmental Approvals and Filings
----------------------------------
The execution, delivery and performance by such Shareholder of this
Agreement, the compliance by such Shareholder with all of the provisions hereof
and the consummation by such Shareholder of the transactions contemplated hereby
will not require any consent, approval, authorization, other order or action of,
filing with or notice to any Governmental or Regulatory Authority, except for
such consents, approvals, authorizations or other orders as have been obtained
and which are in full force and effect on the date of this Agreement or, with
respect to any Person that subsequently becomes a party to this Agreement, as of
the date such Person becomes a party hereto.
2.05 Legal Proceedings; Liability
----------------------------
(a) To the knowledge of such Shareholder, there are no material Actions or
Proceedings pending to which such Shareholder is a party or to which any of the
Shares it owns or controls, beneficially or otherwise, is subject, which would,
or would reasonably be expected to, result in the issuance of an Order which
questions the validity of this Agreement or which would, or would reasonably be
expected to, result in the issuance of an Order which materially adversely
affects the ability of such Shareholder to perform its obligations hereunder
and, to the knowledge of such Shareholder, no such proceedings are threatened.
(b) There are no facts or circumstances known to such Shareholder that
would reasonably be expected to give rise to any material Action or Proceeding
that would be required to be disclosed pursuant to clause (a) above.
2.06 SEC Documents
-------------
(a) Such Shareholder has filed all reports, schedules, forms, statements
and other material documents with the SEC (collectively, and in each case
including all exhibits and schedules thereto and documents incorporated by
reference therein, the "SEC Documents") required to be filed by such Shareholder
prior to giving effect to the execution of this Agreement.
(b) After giving effect to all amendments thereto but prior to giving
effect to the execution of this Agreement and the other Principal Agreements, if
any, to which such Shareholder is a party, no SEC Document filed by such
Shareholder contains any untrue statement of a material fact or omits 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.
2.07 Shareholding
------------
Each Shareholder (other than Telenor) hereby represents and warrants as of
the date hereof, each Person who subsequently becomes a party to this Agreement
by executing an
9
Endorsement hereby represents and warrants, as of the date on which such Person
executes such Endorsement, and Telenor hereby represents and warrants as of the
date of (and after giving effect to) the consummation of its purchase of all of
the Purchaser's Shares pursuant to the Primary Agreement, that:
(a) it is the record holder and beneficial owner of the Shares described
opposite its name on Schedule 1 hereto or on its Endorsement, as the case may
be;
(b) the Shares described opposite its name on Schedule 1 hereto, or on its
Endorsement, as the case may be, constitute all of the shares of capital stock
of the Company owned of record or beneficially by such Person;
(c) except for (i) any rights of such Shareholder's spouse, if any, arising
by operation of law and (ii) in the case of the Bee Line Fund, the rights of the
Board of Directors thereof relating to the voting or disposition of Shares held
by the Bee Line Fund, such Shareholder has sole power of disposition and sole
voting power with respect to all of the Shares described opposite its name on
Schedule 1 hereto, or on its Endorsement, as the case may be, with no
restrictions on such rights, other than such restrictions on transfer as arise
under applicable United States federal securities laws, Russian federal
securities laws, the Agreements on Pledge (the "Zimin Pledge") made on January
27, 1998 and August 18, 1998 between Xx. Xxxxx, Ericsson Project Finance AB and
AB LM Ericsson Finans, the Undertaking and Acknowledgement of Pledge Agreements
dated April 9, 1998 between KB Impuls-TV, the Bee Line Fund, Ericsson Project
Finance AB and AB LM Ericsson Finans (the "Ericsson Agreements"), the
Undertaking and Acknowledgement of Pledge Agreement dated April 9, 1998 between
KB Impuls-TV, Bee Line Fund and Ericsson Project Finance AB and AB LM Ericsson
Finans, the restrictions on the transfer of shares of preferred stock of the
Company which are disclosed in the Company's SEC Documents, and the terms and
conditions of this Agreement and the Registration Rights Agreement; and
(d) its Shares are, unless they are ADSs, uncertificated, and, in any event,
are now held (and in the case of Telenor will, upon issuance, be held), in each
case, free and clear of all Liens, proxies, voting trusts or agreements,
understandings or arrangements whatsoever that would conflict with any of the
obligations of such Person hereunder or under the Registration Rights Agreement,
except for any thereof arising under (i) the charter of the Bee Line Fund, (ii)
the Zimin Pledge, (iii) the Ericsson Agreements and (iv) the restrictions on the
transfer of shares of preferred stock of the Company disclosed in the Company's
SEC Documents, and the terms and conditions of this Agreement and the
Registration Rights Agreement.
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ARTICLE III TRANSFER RESTRICTIONS
3.01 Transfers of Specified Percentage
---------------------------------
(a) If on the date of any proposed transfer (pursuant to a transaction or
series of related transactions) of a number of Shares equal to or greater than
the Specified Percentage of Shares by any Telenor Shareholder to any Person
(other than to another Shareholder or a Controlled Affiliate of another
Shareholder), the Zimin Shareholders own, directly or indirectly, at least the
Specified Percentage of Shares, then such Telenor Shareholder shall not transfer
such Shares to such Person, unless Telenor has given the Zimin Shareholders
thirty (30) Business Days' prior written notice of such proposed transfer in
accordance with Section 7.10 of this Agreement and obtained the prior written
consent of:
(i) during the lifetime of Xx. Xxxxx, Xx. Xxxxx; and
(ii) after Xx. Xxxxx'x death or incapacity, the Bee Line Fund.
(b) If on the date of any proposed transfer (pursuant to a transaction or
series of related transactions) of a number of Shares equal to or greater than
the Specified Percentage of Shares by any Zimin Shareholder to any Person (other
than to another Shareholder or a Controlled Affiliate of another Shareholder),
the Telenor Shareholders own, directly or indirectly, at least the Specified
Percentage of Shares, then such Zimin Shareholder shall not transfer such Shares
to such Person, unless such Zimin Shareholder has given Telenor thirty (30)
Business Days' prior written notice of such proposed transfer in accordance with
Section 7.10 of this Agreement and obtained the prior written consent of Telenor
thereto.
3.02 Effect of Transfers
-------------------
(a) In the event of any transfer of Shares (whether through a transaction
or a series of related transactions, by operation of law or otherwise) from a
Shareholder to another Shareholder or a Controlled Affiliate of any Shareholder,
the transferee shall receive and hold any and all Shares so transferred subject
to the terms and conditions of this Agreement and the rights and obligations, if
any, of the transferor hereunder, and shall forthwith execute and deliver to the
other Shareholders an Endorsement. Each of Telenor and the Zimin Shareholders
hereby undertakes to cause each of their respective Controlled Affiliates to
which Shares are so transferred to execute and deliver an Endorsement to each of
the other Shareholders. A Shareholder which effects a transfer of all of such
Shareholder's Shares in accordance with this Agreement shall, after giving
effect to such transfer, cease to be a party to, or bound by the terms of, this
Agreement from and after the date of such transfer. In the event of any transfer
of Shares or ADSs in an amount less than the Specified Percentage by Telenor or
any of its Controlled Affiliates, or by any of the Zimin Shareholders, to any
Third Person who is not a Controlled Affiliate of any of the parties to this
Agreement, the transferee shall not be entitled to any rights, nor subject to
any obligations, under this Agreement.
(b) If the Telenor Shareholders, or any of them, transfer, in the
aggregate, a number of Shares equal to or greater than the Specified Percentage
of Shares (whether
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through a transaction or a series of related transactions) to any Person, other
than another Shareholder, provided such transfer is made in accordance with
Section 3.01(a) of this Agreement, the transferee shall forthwith execute and
deliver to each of the Shareholders an Endorsement and shall receive and hold
any and all Shares so transferred with the rights and subject to the obligations
set forth in this Agreement and the Registration Rights Agreement, except for
the rights and obligations specified in Sections 4.01, 4.02 and 5.01 of this
Agreement.
(c) If the Zimin Shareholders, or any of them, transfer, in the aggregate,
a number of Shares equal to or greater than the Specified Percentage of Shares
(whether through a transaction or a series of related transactions) to any
Person (other than another Shareholder), provided such transfer is made in
accordance with Section 3.01(b) of this Agreement, the transferee shall
forthwith execute and deliver to each of the Shareholders an Endorsement and
shall receive and hold any and all Shares so transferred with the rights and
subject to the obligations set forth in this Agreement and the Registration
Rights Agreement, except for the rights and obligations specified in sections
4.01, 4.02 and 5.01 of this Agreement.
(d) Notwithstanding, and not in limitation of, any rights or remedies of
any party under this Agreement, if (i) the Telenor Shareholders (or any of them)
transfer, in the aggregate, a number of Shares equal to or greater than the
Specified Percentage of Shares (whether through a transaction or a series of
related transactions) to any Person in violation of Section 3.01(b) or Section
3.02(c), as applicable, or (ii) the Zimin Shareholders (or any of them)
transfer, in the aggregate, a number of Shares equal to or greater than the
Specified Percentage of Shares (whether through a transaction or a series of
related transactions) to any Person in violation of Section 3.01(b) or Section
3.02(c), as applicable, then such transferee shall receive and hold any and all
Shares so transferred without any of the rights, but subject to all of the
obligations, set forth in this Agreement and the Registration Rights Agreement.
3.03 Endorsements by Future Shareholders
-----------------------------------
The term "Shareholders" as used in this Agreement shall include any and
all Persons (i) agreeing to be bound as a "Shareholder" hereunder by signing
this Agreement or an Endorsement, and (ii) required to execute and deliver an
Endorsement pursuant to the terms of this Agreement.
3.04 Tag-Along Rights Relating to Telenor
------------------------------------
(a) If any Significant Zimin Shareholder proposes to register any Shares
for sale in a secondary public offering pursuant to the Securities Act (whether
through the exercise of demand registration rights or otherwise), such
Significant Zimin Shareholder shall, unless and until such time as the Zimin
Shareholders, in the aggregate, own less than the Specified Percentage of
Shares:
(i) promptly give Telenor written notice thereof;
(ii) afford the Telenor Shareholders the opportunity to join in such
registration; and
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(iii) cause any underwriter (or any other Person that proposes to
acquire Shares directly from a Significant Zimin Shareholder) in any offering (a
"Telenor Tag-Along Sale") in connection with such registration to offer to
acquire from the Telenor Shareholders (a "Telenor Tag-Along Purchase Offer")
such number of Shares as shall equal the proportion which the total number of
Shares then held by the Telenor Shareholders bears to the total number of Shares
owned by the Significant Zimin Shareholders on such date, at the same price and
on the same terms and conditions that have been offered to the Significant Zimin
Shareholder(s).
(b) Notwithstanding the foregoing, if (A) any Significant Zimin
Shareholder proposes to register any of its Shares for sale in a secondary
public offering pursuant to the Securities Act through the exercise of a demand
registration right, and (B) the lead managing underwriter for such offering
advises the Company or any of the Significant Zimin Shareholders in writing
that, in the opinion of the lead managing underwriter, the number of shares
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
price, timing or distribution of shares offered in such offering, the lead
managing underwriter may limit to the extent deemed appropriate by such lead
managing underwriter the number of the Telenor Shareholders' Shares to be
included in such registration to the number of Shares requested to be included
in such registration which, in the opinion of the lead managing underwriter, can
be sold without having such adverse effect (in which case such Significant Zimin
Shareholder shall so advise Telenor and any other Person distributing securities
through such underwriting).
3.05 Tag Along Rights Relating to Significant Zimin Shareholders
-----------------------------------------------------------
(a) If any Telenor Shareholder proposes to register any Shares for sale in
a secondary public offering pursuant to the Securities Act (whether through the
exercise of demand registration rights or otherwise), Telenor shall, unless and
until such time as the Telenor Shareholders own, in the aggregate, less than the
Specified Percentage of Shares:
(i) promptly give the Significant Zimin Shareholders written notice
thereof;
(ii) afford each of the Significant Zimin Shareholders the
opportunity to join in such registration; and
(iii) cause any underwriter (or any other Person that proposes to
acquire Shares directly from a Telenor Shareholder) in any offering (a "Zimin
Tag-Along Sale") in connection with such registration to offer to acquire from a
Significant Zimin Shareholder (a "Zimin Tag-Along Purchase Offer") such number
of Shares as shall equal the proportion which the total number of Shares then
held by the Significant Zimin Shareholders bears to the total number of Shares
owned by the Telenor Shareholder(s) on such date, at the same price and on the
same terms and conditions that have been offered to the Telenor Shareholder(s).
(b) Notwithstanding the foregoing, if (i) any Telenor Shareholder proposes
to register any Shares for sale in a secondary public offering pursuant to the
Securities Act through the exercise of a demand registration right, and (ii) the
lead managing underwriter for such offering advises the Company or any Telenor
Shareholder in writing that, in the
13
opinion of the lead managing underwriter, the number of shares requested to be
included in such registration exceeds the number which can be sold in such
offering, so as to be likely to have an adverse effect on the price, timing or
distribution of shares offered in such offering, the lead managing underwriter
may limit to the extent deemed appropriate by such lead managing underwriter the
number of Shares of the Significant Zimin Shareholders to be included in such
registration to the number of Shares requested to be included in such
registration which, in the opinion of the lead managing underwriter, can be sold
without having such adverse effect (in which case such Telenor Shareholder shall
so advise the Significant Zimin Shareholders and any other Person distributing
securities through such underwriting).
(c) Telenor on behalf of the Telenor Shareholders shall have ten (10)
Business Days from the date of receipt of a Telenor Tag-Along Purchase Offer in
which to accept such offer, and the Significant Zimin Shareholders shall have
ten (10) Business Days from the date of receipt of a Zimin Tag-Along Purchase
Offer in which to accept such offer. The fees, costs and expenses incurred in
connection with a Telenor Tag-Along Sale in which any of the Significant Zimin
Shareholders participate shall be borne ratably by the Zimin Shareholders
participating in such sale and the Telenor Shareholders, and the fees, costs and
expenses incurred in connection with a Zimin Tag-Along Sale in which any Telenor
Shareholder participates shall be borne ratably by such Telenor Shareholders and
the Zimin Shareholders; provided that each such party shall be responsible for
the fees and disbursements of its legal counsel in connection with any such Tag-
Along Sale.
3.06 Order of Priority
-----------------
Notwithstanding Section 3.04 or 3.05, if (a) any Significant Zimin
Shareholder or any Telenor Shareholder proposes to register Shares for sale in a
secondary public offering pursuant to the Securities Act through the exercise of
so-called "piggy-back" registration rights in connection with a proposed
registered offering pursuant to the Securities Act of the Company's securities
for the account of the Company, and (b) the lead managing underwriter for such
offering advises the Company in writing that, in the opinion of the lead
managing underwriter, the number of Shares requested to be included in such
registration exceeds the number which can be sold in such offering, so as to be
likely to have an adverse effect on the price, timing or distribution of Shares
offered in such offering, the lead managing underwriter may limit the Shares to
be included in such registration to the number of Shares requested to be
included in such registration which, in the opinion of the lead managing
underwriter delivered to Telenor, the relevant Significant Zimin Shareholders
and any other Person distributing Shares through such underwriting, can be sold
without having such adverse effect. The Shareholders shall then permit the
Company to include in such registration the amount of the Shares which the lead
managing underwriter advises the Company can be sold in such offering in the
following priority: first, the Shares proposed by the Company to be sold for its
own account; and second, any Shares requested to be included in such
registration by the Telenor Shareholders, the Significant Zimin Shareholders and
any such other Person, as nearly as practicable, pro rata to the amounts of
Shares held by the Telenor Shareholders, the Significant Zimin Shareholders and
such other Person at the time of filing of the registration statement.
14
3.07 Notices Relating to Transfer of Shares
--------------------------------------
In addition to, and not in limitation of, any other provision herein or in
any of the other Principal Agreements pursuant to which any Person is required
to deliver notice, the parties hereto agree that:
(a) if, as a result of any transfer of Shares (whether through a
transaction or a series of related transactions) the Zimin Shareholders shall,
in the aggregate, beneficially own less than ten percent (10%) of the then
issued and outstanding voting capital stock of the Company, then the Zimin
Shareholders shall, as soon as practicable after such transfer, deliver written
notice of such occurrence to each of the other Shareholders; and
(b) if, as a result of any transfer of Shares (whether through a
transaction or a series of related transactions) the Telenor Shareholders shall,
in the aggregate, beneficially own less than ten percent (10%) of the then
issued and outstanding voting capital stock of the Company, then Telenor shall,
as soon as practicable after such transfer, deliver written notice of such
occurrence to each of the other Shareholders.
ARTICLE IV PRE-CLOSING OBLIGATIONS
4.01 Pre-Closing Voting Agreement
----------------------------
Each of the Existing Shareholders hereby severally undertakes and agrees
that, during the period from the date of execution of the Primary Agreement
until the earlier of the Closing and the termination of this Agreement pursuant
to Article VI of this Agreement, at any meeting of the shareholders of the
Company, however called, or in connection with any written consent of the
shareholders of the Company or any such other action taken by the shareholders
of the Company, such Existing Shareholder shall vote or cause to be voted all of
the Shares held by such Existing Shareholder in favor of any proposal presented
to the shareholders of the Company for a vote in connection with the
transactions contemplated by the Principal Agreements, and any action presented
to the shareholders of the Company for a vote in furtherance thereof, including,
without limitation:
(a) the adoption and registration of the amendments to the Charter;
(b) the issuance and sale to Telenor of the Purchaser's Shares, on the
terms and subject to the conditions contained in the Primary Agreement;
(c) the election to the Board of three (3) candidates designated by
Telenor and nominated by the Zimin Shareholders; and
(d) satisfaction of all other conditions to the Closing specified in
Article VIII of the Primary Agreement.
15
4.02 No Mandatory Tender
-------------------
The Existing Shareholders hereby agree to vote in favor of a waiver of, or
to waive, Telenor's obligation to offer to purchase the Shares held by the
Existing Shareholders, to the extent, if any, that Telenor's acquisition of
Shares pursuant to the Primary Agreement gives rise to such obligation under
Article 80 of the Russian Federation Joint Stock Company Law or any other
applicable law.
4.03 Powers of Attorney from the Zimin Shareholders
----------------------------------------------
(a) At the time of the execution of this Agreement, any or all of the
Zimin Shareholders shall execute and deliver to Telenor a power of attorney
which shall be effective as of January 30, 1999 (provided that the shareholders
of the Company approve the issuance of the Purchaser's Shares to Telenor on or
before January 29, 1999) duly authorizing Telenor to vote, at any meeting of the
shareholders of the Company held on or before January 29, 2000 on all issues
requiring the affirmative vote of holders of seventy-five percent (75%) of
voting shares of the Company present and eligible to vote in order to be
approved, as well as in electing candidates to the Board, a number of Shares
sufficient to carry twenty-five percent (25%) plus one (1) vote at a general
meeting of the shareholders of the Company. In addition, the Zimin Shareholders
shall ensure that Telenor has the right to vote twenty-five percent (25%) plus
one (1) share of the voting capital stock of the Company at all times on any
such issue until the earliest of (A) the date on which Telenor is the registered
owner of the Specified Percentage of Shares, has fully paid for the Purchaser's
Shares and has the right to exercise voting rights on all issues with respect to
the Purchaser's Shares, (B) January 29, 2000, (C) the date on which Telenor or
any Controlled Affiliate of Telenor transfers any Share to any Person other than
Telenor or a Controlled Affiliate of Telenor and (D) termination of this
Agreement pursuant to Article VI.
(b) On the date of issuance of the Class B Preferred Stock or at any other
time at Telenor's request, the Zimin Shareholders to whom the Class B Preferred
Stock will be issued shall execute and deliver to Telenor (i) a proxy (or
proxies) satisfactory to Telenor authorizing Telenor to vote such shares of the
Class B Preferred Stock as may be necessary to ensure that Telenor shall have
the right to vote such percentage of the voting capital stock of the Company as
Telenor shall hold immediately prior to the time the Class B Preferred Stock
shall have voting rights in excess of those set forth in Schedule 1 to the
Registration Rights Agreement, whether pursuant to the Charter or applicable
law, (ii) a pledge agreement, satisfactory to Telenor, granting Telenor a first
priority security interest in the Class B Preferred Stock, securing the
performance of all of the obligations of such Zimin Shareholders hereunder and
granting Telenor, as pledgee, the right to vote such shares of the Class B
Preferred Stock as may be necessary to ensure that Telenor shall have the right
to vote such percentage of the voting capital stock of the Company as Telenor
shall hold immediately prior to the time when the Class B Preferred Stock shall
have voting rights in excess of those set forth in Schedule 1 to the
Registration Rights Agreement, such security interest to be enforceable only in
the event of the ineffectiveness, invalidity, revocation, termination or
expiration of such proxy (or proxies), whether by operation of law or otherwise,
only against such number of shares of the Class B Preferred Stock as shall be
necessary to ensure that Telenor shall have the
16
percentage ownership of voting capital stock of the Company as existed
immediately prior to giving effect to the voting rights in excess of those set
forth in Schedule 1 to the Registration Rights Agreement, and (iii) a transfer
order in respect of the Class B Preferred Stock, entitling Telenor to register
such security interest in the Class B Preferred Stock in the shareholder
register of the Company at the NRC; provided, however, that if Telenor violates
the terms of Section 5.01(c) or Section 5.01(d) hereof, all rights granted to
Telenor pursuant to this Section 4.03(b) and the proxy (or proxies) and the
pledge agreement referred to in this Section 4.03(b) (if then in effect) shall
immediately terminate. Upon the request of Telenor from time to time, the Zimin
Shareholders shall perform all reasonable actions, including, without
limitation, renewing such proxies and/or amending or replacing the documents
described in clauses (i)-(iii) above to comply with the requirements of
applicable law or as may otherwise be necessary to preserve Telenor's rights
under this Section 4.03(b), in each case, to enable Telenor to exercise such
voting rights.
ARTICLE V POST-CLOSING OBLIGATIONS
5.01 Voting
------
(a) So long as the Telenor Shareholders and the Zimin Shareholders each
beneficially own at least the Specified Percentage of Shares, then (i) Telenor
shall nominate no more than three (3) candidates designated by Telenor for
election to the Board, at least one of whom shall be a Russian citizen, (ii)
Telenor and the Zimin Shareholders shall vote a sufficient number of their
respective Shares to ensure that Telenor's three (3) designated nominees are
elected to the Board and (iii) should Telenor determine, in its sole discretion,
that it will have votes remaining after the election of its three (3) designated
nominees is ensured, it shall allocate on an equal basis any such votes in favor
of nominees for election to the Board which have been proposed by the Zimin
Shareholders; provided, however, that if any shareholder of the Company (other
than a Telenor Shareholder or a Zimin Shareholder) nominates any Person to the
Board, Xx. Xxxxx (or, in the event of his death or incapacity, the Bee Line
Fund) shall have the right to approve one of the two non-Russian nominees of
Telenor to the Board, which approval shall not be unreasonably withheld,
provided that such approval shall not be required if at least one of such two
non-Russian nominees is a senior executive vice-president or a member of the
board of directors of Telenor AS. Telenor shall use its best efforts to ensure
that any director designated by Telenor for nomination to the Board pursuant to
this Section 5.01(a) shall be an individual having such knowledge, technical
expertise or know-how relating to the telecommunications industry and related
sectors as may be reasonably requested by Xx. Xxxxx (or, in the event of his
death or incapacity, the Bee Line Fund). The parties hereto agree that Ms.
Tatiana Malozemova shall initially be the Russian Board member designated by
Telenor. The Zimin Shareholders shall ensure that at least one (1) other
employee of Telenor (identified in a notice sent by Telenor to Xx. Xxxxx) shall
receive notices of Board meetings and shall have the right to attend and speak
at all Board meetings.
(b) Telenor shall cause directors nominated by it to vote in favor of Xx.
Xxxxx and Xx. Xxxxxx to fill any two of the following four positions: (i)
President and Chief
17
Executive Officer (referred to in the charter of the Company as "General
Director"), (ii) Chairman of the Board, (iii) Honorary Chairman and (iv)
Chairman Emeritus; provided, however, that Telenor shall have no obligation to
cause its directors to vote in accordance with this Section 5.01(b) unless the
authority of the Honorary Chairman and Chairman Emeritus excludes any
substantial managerial responsibility and the right to take any executive action
on behalf of the Company.
(c) Subject to compliance with applicable law, each of Telenor and the
Zimin Shareholders undertakes to cause directors nominated by them (or who
represent their respective shareholdings in the Company) to vote in favor of the
declaration and/or full payment of any and all dividends payable on or in
respect of the Class A Preferred Stock and the Class B Preferred Stock (whether
in the form of a Board recommendation to shareholders for payment of annual
dividends, Board approval of payment of interim dividends, or otherwise).
(d) Subject to compliance with applicable law, each of Telenor and the
Zimin Shareholders undertakes to vote (and to cause their respective Controlled
Affiliates to vote) any Shares owned by them in favor of any resolution of
shareholders approving the payment of the full dividends on or in respect of the
Class A Preferred Stock and the Class B Preferred Stock.
(e) Upon not less than ninety (90) days' prior written notice from Telenor
that it wishes to cause an amendment to the Charter to be adopted that would
include its name (and/or any of the Telenor Shareholders' respective names) in
the Charter in accordance with Article 15 of the Law on Foreign Investments, the
Zimin Shareholders shall (i) cause the directors nominated by them to propose
such an amendment at the next annual general meeting of shareholders and (ii)
vote any Shares owned by them in favor of the adoption of such amendment.
5.02 Shareholder Capacity
--------------------
No Person executing this Agreement who is, or who becomes during the term
hereof, a director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth herein shall
in no way restrict any director in the exercise of his or her fiduciary duties
as a director of the Company. Each Shareholder executes and delivers this
Agreement solely in his, her or its capacity as the record and beneficial owner
of such Shareholder's Shares.
5.03 Other Arrangements
------------------
No Shareholder shall grant any proxy or enter into or agree to be bound by
any understanding or any voting trust with respect to any Shares (provided that
any Zimin Shareholder may grant a proxy to Xx. Xxxxx in respect of the Shares
owned by such Zimin Shareholder), nor shall any Shareholder enter into any
shareholders agreement or arrangement of any kind with any Person with respect
to any Shares, in each case, inconsistent with any obligation of such
Shareholder under this Agreement (whether or not such agreement, understanding
or arrangement is with other Shareholders or holders of shares which are not
bound by this Agreement), including, without limitation, any agreement,
understanding or arrangement with respect to the acquisition, disposition or
18
voting of Shares, nor shall any Shareholder act, for any reason, as a member of
a group or in concert with any other Person in connection with the acquisition,
disposition or voting of Shares in any manner which is inconsistent with any
obligation of such Shareholder under this Agreement, provided that each
Shareholder shall be permitted to transfer its Shares in accordance with this
Agreement and the Registration Rights Agreement.
ARTICLE VI TERM AND TERMINATION
This Agreement shall take effect on the date hereof and remain in effect
until the earliest of:
(a) the date on which all of the Shareholders party hereto agree in writing
to the termination of this Agreement;
(b) the date on which the Telenor Shareholders and any transferee of the
Specified Percentage of Shares pursuant to a transfer by the Telenor
Shareholders made in accordance with Section 3.01(a) hereof, having once
attained such Specified Percentage, thereafter, collectively beneficially own,
in the aggregate, less than ten percent (10%) of the then issued and outstanding
voting capital stock of the Company;
(c) the date on which the Zimin Shareholders and any transferee of the
Specified Percentage of Shares pursuant to a transfer by the Zimin Shareholders
made in accordance with Section 3.01(b) hereof collectively beneficially own, in
the aggregate, less than ten percent (10%) of the then issued and outstanding
voting capital stock of the Company;
(d) the date on which the meeting of the shareholders of the Company is held
at which a vote of such shareholders is conducted concerning the transactions
specified in Section 5.04(a) of the Primary Agreement and such shareholders fail
to approve such transactions;
(e) June 1, 1999, in the event the Closing shall not have occurred on or
prior to such date; and
(f) January 29, 2000, if Telenor has not theretofore acquired in the
aggregate at least ten percent (10%) of the then issued and outstanding voting
capital stock of the Company pursuant to the Primary Agreement;
provided that, notwithstanding the foregoing or any other provision contained
herein or in any of the other Principal Agreements, the rights and obligations
of Xx. Xxxxxx and Geneva hereunder (which, in any event, are limited to Article
II, Article IV, Section 5.02 and Article VI hereof) shall terminate immediately
after the meeting of the shareholders of the Company referred to in paragraph
(d) above (notwithstanding that the Shareholders have approved the transactions
contemplated by the Primary Agreement and the other Principal Agreements), and,
thereafter, Xx. Xxxxxx and Geneva shall cease to be parties to, or bound by the
terms and conditions of, this Agreement, and under no circumstances whatsoever
shall Xx. Xxxxxx or Geneva be liable, or incur any liability whatsoever, in
connection with any breach (or alleged breach) of any other provision set forth
in this Agreement.
19
ARTICLE VII MISCELLANEOUS
7.01 Specific Performance
--------------------
The Shareholders hereby declare that it is impossible to measure in money
the damages that will accrue to a party hereto by reason of a failure to perform
any of the obligations under this Agreement. Therefore, if any Shareholder
shall institute any arbitral proceeding to enforce specifically the provisions
hereof, any Shareholder against whom such proceeding is brought hereby waives
the claim or defense therein that such Shareholder has an adequate remedy at law
or in damages, and such Shareholder shall not urge in any such proceeding the
claim or defense that such remedy at law or in damages exists.
7.02 Further Assurances
------------------
From time to time, at any Shareholder's reasonable request and without
further consideration, each Shareholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
7.03 Certain Events
--------------
Each Shareholder agrees that this Agreement and the obligations hereunder
shall attach to such Shareholder's Shares and shall be binding upon any Person
to which legal or beneficial ownership of such Shares shall pass by operation of
law, including, without limitation, such Shareholder's heirs, guardians,
administrators or successors or spouse, as a result of any divorce.
7.04 Stop Transfer
-------------
Each Shareholder agrees with, and covenants to, the other Shareholders
that such Shareholder shall not request that the Company or the National
Registry Company register the transfer (book-entry or otherwise) of any of such
Shareholder's Shares, unless such transfer is made in compliance with this
Agreement.
7.05 Entire Agreement
----------------
This Agreement supersedes all other prior discussions and agreements among
the parties with respect to the subject matter hereof, and contains the sole and
entire agreement among the parties with respect to the subject matter hereof.
7.06 No Waiver
---------
No failure on the part of any party hereto to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power, or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right,
20
power or privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
7.07 Binding Agreement
-----------------
This Agreement shall, to the extent specifically set forth herein, be
binding upon the successors and permitted assigns and permitted transferees of
each party hereto.
7.08 Assignment
----------
No party hereto may assign any of its rights under this Agreement without
the prior written consent of each of the other parties hereto.
7.09 Expenses
--------
Each party to this Agreement shall pay its own expenses and costs
incidental to its execution and delivery of this Agreement.
7.10 Notice
------
(a) All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by facsimile or by hand in writing and
transmitted by facsimile or courier and delivered to the "Address for Notices"
specified below or at such other address as shall be designated by such
Shareholder in a notice to each other Shareholder party hereto:
If to Telenor, to:
Telenor East Invest AS
Keysers Xxxx 00
X-0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-00-00-00
Attn: Xxxxxx Xxxxxxxxx
with a copy to:
Advokatene i Telenor
Xxxxxxxxxxxxxxxxx 0
X-0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-00-00-00
Attn: Xxxxx X. Risung
If to Xx. Xxxxx, Glavsotkom, the Bee Line Fund and/or any other Zimin
Shareholder, to:
21
10-12, 0xx Xxxxx Xxxxxx
Xxxxxx, Xxxxxx
Facsimile No.: 755-3682
Attn: Xx. Xxxxxx X. Xxxxx
If to the Company, to:
Open Joint Stock Company "Vimpel-Communications"
10-12, Xxxxxx 0-Xxxxx
000000, Xxxxxx
Xxxxxxx Federation
Facsimile No.: x0000-000-0000
Attn: Xxxxxx Xxxxxxxxxx
General Counsel
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Xxxxx Place II
7 Ulitsa Gasheka
123056, Moscow
Russian Federation
Facsimile No.: x0000-000-0000
Attn: Xxxxxxx X. Xxxxxxxx
If to Xxxxx X. Xxxxxx, XX, to:
00-00, 0xx Xxxxx Xxxxxx
Xxxxxx, Xxxxxx
Facsimile No.: 755-3682
Attn: Xxxxx X. Xxxxxx, XX
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given and shall be effective when transmitted
by facsimile, personally delivered or, in the case of any notice delivered by
courier, upon receipt, in each case, given or addressed as aforesaid.
(b) Any notices of proposed transfers pursuant to Section 3.01 of
this Agreement shall identify the proposed transferee and the beneficial
owner(s) of such proposed transferee, describe the shares, if any, of capital
stock in any telecommunications company owned by such transferee (and its
affiliates) and such beneficial owner(s) and describe the manner and
circumstances of the proposed transfer in sufficient detail.
22
7.11 Counterparts
------------
This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
7.12 Amendment
---------
This Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each party hereto.
7.13 Arbitration; Waiver of Sovereign Immunity
-----------------------------------------
(a) Any and all disputes and controversies arising under, relating to or
in connection with this Agreement shall be settled by arbitration by a panel of
three (3) arbitrators under the United Nations Commission on International Trade
Law (UNCITRAL) Arbitration Rules in force (the "UNICITRAL Rules") in accordance
with the following terms and conditions:
(i) In the event of any conflict between the UNCITRAL Rules and the
provisions of this Agreement, the provisions of this Agreement shall prevail.
(ii) Either party to this Agreement may refer a matter to
arbitration by written notice to the other party.
(iii) The place of the arbitration shall be Stockholm, Sweden.
(iv) The claimant party shall appoint one (1) arbitrator and the
respondent party shall appoint one (1) arbitrator, and the two (2) arbitrators
so appointed shall appoint the third arbitrator, in accordance with the UNCITRAL
Rules. In the event of an inability to agree on a third arbitrator, the
appointing authority shall be the Arbitration Institute of the Sweden Chamber of
Commerce, Stockholm.
(v) The English language shall be used as the written and spoken
language for the arbitration and all matters connected with all references to
arbitration.
(vi) The decision of the arbitrators shall be made by majority vote
and shall be in writing.
(vii) The decision of the arbitrators shall be final and binding on
the parties to this Agreement, save in the event of fraud, manifest mistake or
failure by any of the arbitrators to disclose any conflict of interest.
(viii) The decision of the arbitrators may be enforced by any court of
competent jurisdiction and may be executed against the Person and assets of the
losing party in any jurisdiction.
(b) In the event any dispute is submitted to arbitration pursuant to
Section 7.13(a), the panel of arbitrators may, if it deems such award
appropriate, award a party costs and expenses incurred by such party in
enforcing its rights. Except as so
23
awarded, each party shall bear its own costs and expenses of enforcing its
rights to arbitrate under this Section 7.13.
(c) Except for arbitration proceedings pursuant to Section 7.13(a) above,
no action, lawsuit or other proceeding (other than a proceeding to compel
arbitration or to enforce any arbitration decision) shall be brought by or
between the parties to this Agreement and/or any of their affiliates in
connection with any matter arising out of or in connection with this Agreement.
(d) Telenor hereby represents and warrants that it is acting solely in its
commercial capacity in executing and delivering this Agreement and each of the
other Principal Agreements to which it is a party and in performing its
obligations hereunder and thereunder, and Telenor hereby irrevocably waives with
respect to all disputes, claims, controversies and all other matters of any
nature whatsoever that may arise under or in connection with this Agreement or
any of the other Principal Agreements and any other document or instrument
contemplated hereby or thereby, all immunity it may otherwise have as a
sovereign, quasi-sovereign or state-owned entity (or similar entity) from any
and all proceedings (whether legal, equitable, arbitral, administrative or
otherwise), attachment of assets, or enforceability of judicial or arbitral
awards.
7.14 Governing Law
-------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, United States of America, applicable to contracts
executed and performed in such jurisdiction, without giving effect to the
conflicts of laws principles thereof which would result in the application of a
different law.
7.15 Invalid Provisions
------------------
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future Law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance herefrom and
(d) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
7.16 Consent to Jurisdiction and Service of Process
----------------------------------------------
Each Shareholder hereby irrevocably appoints, and Telenor hereby
irrevocably appoints, CT Corporation System, located on the date hereof at 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, XXX, as its true and lawful agent and attorney to
accept and acknowledge service of any and all process against it in any action,
suit or proceeding arising out of or relating to this Agreement or any of the
transactions contemplated hereby and upon whom such process may be served, with
the same effect as if such party were a resident of the State of New York and
had been lawfully served with such process in such
24
jurisdiction, and waives all claims of error by reason of such service, provided
that the party effecting such service shall also deliver a copy thereof to each
other party at the address specified on the execution pages of this Agreement.
Each Shareholder and Telenor will enter into such agreements with such agent as
may be necessary to constitute and continue the appointment of such agent
hereunder. In the event that any such agent and attorney resigns or otherwise
becomes incapable of acting, the affected party will appoint a successor agent
and attorney in New York reasonably satisfactory to each other party, with like
powers. Each party hereby irrevocably submits to the non-exclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City, in any such action, suit or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated hereby, and agrees that any such action, suit or
proceeding shall be brought only in such court, provided, however, that such
consent to jurisdiction is solely for the purpose referred to in Section 7.13
and shall not be deemed to be a general submission to the jurisdiction of said
courts of or in the State of New York other than for such purpose. Each party
hereby irrevocably waives, to the fullest extent permitted by Law, any objection
that it may now or hereafter have to the laying of the venue of any such action,
suit or proceeding brought in such a court and any claim that any such action,
suit or proceeding brought in such a court has been brought in an inconvenient
forum. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by Law or to commence legal proceedings or otherwise
proceed against the other in any other jurisdiction.
25
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the date first above written.
TELENOR EAST INVEST AS
By /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Attorney-in-Fact
XX. XXXXXX XXXXXXXXXX XXXXX
/s/ Xxxxxx Xxxxxxxxxx Xxxxx
---------------------------
GLAVSOTKOM LLC
By /s/ X. X. Xxxxx
-----------------
Name: X. X. Xxxxx
Title: General Director
THE FUND FOR NON-COMMERCIAL PROGRAMS "BEE LINE"
By /s/ Xxxxxxxxxx X. Ashitkov
---------------------------
Name: Xxxxxxxxxx X. Ashitkov
Title: Executive Director
26
XXXXX X. XXXXXX, XX
(for the limited purposes set forth in the
Agreement)
/s/ Xxxxx X. Xxxxxx, XX
-----------------------
GENEVA INVESTMENT TRUST I, L.L.C.
(for the limited purposes set forth in the
Agreement)
By /s/ Xxxxx X. Xxxxxx, XX
--------------------------
Name: Xxxxx X. Xxxxxx, XX
Title: Authorized Signatory
27
The undersigned hereby consents and agrees to, and accepts, the execution of
the foregoing Shareholders Agreement by her husband, Xx. Xxxxxx X. Xxxxx, and
all terms and conditions of said Shareholders Agreement.
MAYA PAVLOVNA ZIMINA
/s/ Maya Pavlovna Zimina
------------------------
SCHEDULE 1
SHAREHOLDINGS
---------------------------------------------------------------------------------------------------------
Name of Shareholder Type of Shares Number
---------------------------------------------------------------------------------------------------------
Xx. Xxxxxx X. Xxxxx Common Stock 750,000 Shares
---------------------------------------------------------------------------------------------------------
Xx. Xxxxxx X. Xxxxx Preferred Stock 6,426,600 Shares
---------------------------------------------------------------------------------------------------------
Glavsotkom LLC Common Stock 3,051,000 Shares
---------------------------------------------------------------------------------------------------------
The Fund for Non- Common Stock 3,606,344 Shares
Commercial "Bee Line"
Programs
---------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx, XX Common Stock 50,000 ADSs
---------------------------------------------------------------------------------------------------------
Geneva Investment Trust I, Common Stock 173,520 Shares
L.L.C.
---------------------------------------------------------------------------------------------------------
Telenor East Invest AS Common Stock 8,902,201 Shares
---------------------------------------------------------------------------------------------------------
29
EXHIBIT A
ENDORSEMENT
The undersigned shareholder of Open Joint Stock Company "Vimpel-
Communications" (the "Company") hereby agrees to the terms and conditions of the
Shareholders Agreement (the "Shareholders Agreement") dated as of December 1,
1998 by and among Telenor East Invest AS and certain other shareholders of the
Company party thereto from time to time, to which this Endorsement is attached,
and (a) agrees to be fully bound by the terms and conditions of such
Shareholders Agreement as if such shareholder were an original signatory
thereto, (b) hereby makes as of the date hereof, for the benefit of each of the
other parties to the Shareholders Agreement, each of the representations and
warranties set forth in Article II of the Shareholders Agreement, (c) represents
that it owns the beneficial interest in the number of shares of capital stock or
ADSs of the Company specified below and (d) agrees to deliver to each other
party to the Shareholders Agreement, as soon as practicable (and in any event
not later than two Business Days after the date hereof) an original copy of this
Endorsement.
[Name of Shareholder]
By__________________________
Name:
Title:
Type of Shares/ADSs:
______________________
Number of Shares:
______________________
