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EXHIBIT G
DATED MAY 30, 2001
(1) XX. XXXXXX XXXXXXXXXX XXXXX
- and -
(2) ECO TELECOM LIMITED
SURETY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. SURETY ....................................................... 1
2. PRINCIPAL OBLIGOR ............................................ 2
3. NO GREATER LIABILITY ......................................... 2
4. NO EFFECT .................................................... 2
5. TERMINATION .................................................. 3
6. CONTINUING SURETY ............................................ 4
7. AMENDMENTS TO GUARANTEED AGREEMENTS .......................... 4
8. ENFORCEMENT .................................................. 4
9. ALIENATION ................................................... 4
10. LIMITATION PERIOD ............................................ 4
11. REPRESENTATION AND WARRANTY .................................. 5
12. INDEMNITY .................................................... 5
13. SEVERABILITY ................................................. 5
14. WITHHOLDINGS AND DEDUCTIONS .................................. 5
15. Notice ....................................................... 6
16. GOVERNING LAW AN DISPUTE RESOLUTION .......................... 7
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THIS SURETY AGREEMENT (the "AGREEMENT") is made on May 30, 2001 BETWEEN:
(1) XX. XXXXXX XXXXXXXXXX XXXXX, a Russian citizen, holding a passport
XXIV-MIO No. 520067, issued on 4 January 1980 by 126 Moscow Militia
Department, residing at: 269, Building 3, House 53, Xxxxxx
Xxxxxxxxxxxx, Xxxxxx 000000 ("XX. XXXXX"); and
(2) ECO TELECOM LIMITED, a company organized and existing under the laws of
Gibraltar with its registered office at: 10/8 International Commercial
Centre, Casemates Square, Gibraltar ("ECO TELECOM").
Capitalized terms used but not defined herein shall have the respective
meanings set forth or incorporated by reference in the Share Purchase
Agreement (as defined below).
WHEREAS
(A) Eco Telecom and Overture Limited ("OVERTURE") are entering into a Share
Purchase Agreement dated as of the date of this Agreement (the "SHARE
PURCHASE AGREEMENT") in respect of the sale and purchase of (i)
6,426,600 shares of preferred stock (the "PREFERRED SHARES") of Open
Joint Stock Company "Vimpel-Communications" (the "COMPANY") and (ii)
16,362 shares of common stock of the Company (the "COMMON SHARES").
(B) Overture is in the process of acquiring the Preferred Shares from Xx.
Xxxxx who has owned the Preferred Shares for more than three (3) years
pursuant to a Share Purchase Agreement, dated as of May 30, 2001, by
and between Overture and Xx. Xxxxx (the "ACQUISITION AGREEMENT").
(C) In order to induce Eco Telecom to secure its obligations under the
Share Purchase Agreement and to enter into (i) the Share Pledge
Agreement pursuant to which Eco Telecom will pledge shares of common
stock of the Company to Overture (the "SHARE PLEDGE AGREEMENT") and
(ii) the Call Option Agreement pursuant to which Eco Telecom will grant
a call option on shares of common stock of the Company to Overture (the
"CALL OPTION AGREEMENT"), Xx. Xxxxx has agreed to guarantee and secure
the due performance of the certain of the obligations of Overture under
the Share Purchase Agreement and the Share Pledge Agreement (the
"GUARANTEED AGREEMENTS") as set out below.
NOW IT IS HEREBY AGREED as follows:
1. SURETY
1.1 Xx. Xxxxx provides an absolute and unconditional surety for the
performance by Overture of its obligations to Eco Telecom under the
Guaranteed Agreement relating to (A) the representations and warranties
by Overture regarding (i) Eco Telecom's title to the Preferred Shares
set forth in Sections 3.02(c) and 3.02(g) of the Share Purchase
Agreement, (ii) its payment of the purchase price under the Acquisition
Agreement set forth in Section 3.02(l) of the Share Purchase Agreement,
and (iii) the validity of
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the cancellation of the Original Preferred Stock Call Option set forth
in Section 3.02(k) of the Share Purchase Agreement, (B) the release of
shares of common stock of the Company pursuant to Section 4.01(a) of
the Share Pledge Agreement and (C) the obligation to carry out the
realization of the Pledged Property (as defined in the Share Pledge
Agreement) in compliance with the auction procedures established in
accordance with Section 5.2. of and Annex 1 to the Share Pledge
Agreement; provided, that Xx. Xxxxx'x obligations under this Agreement
and the surety extended hereunder shall not exceed the aggregate
liability of Overture under the Guaranteed Agreements in this respect
(the "GUARANTEED OBLIGATIONS").
1.2 To the extent permitted by applicable law, if Overture fails to perform
or discharge or is in default in respect of any of the Guaranteed
Obligations, Xx. Xxxxx shall, forthwith upon the first written demand
of Eco Telecom, perform and discharge such Guaranteed Obligations as if
Xx. Xxxxx instead of Overture was expressed to be an obligor under the
Guaranteed Agreements.
1.3 Xx. Xxxxx acknowledges having received a copy of each of the Guaranteed
Agreements and confirms his awareness of the provisions thereof.
2. PRINCIPAL OBLIGOR
2.1 Without prejudice to Eco Telecom's rights against Overture and to the
extent permitted by applicable law, Xx. Xxxxx shall be deemed a
principal obligor in respect of the Guaranteed Obligations and not
merely a surety and, accordingly, Xx. Xxxxx shall not be discharged nor
shall his liability hereunder be affected by any act or thing or means
whatsoever by which such liability would have been discharged or
affected if Xx. Xxxxx had not been a principal obligor.
2.2 As a separate and alternative, continuing primary obligation Xx. Xxxxx
unconditionally and irrevocably agrees that any obligation expressed to
be performed by him under this Agreement but which is for any reason
(whether or not now existing and whether or not now known or becoming
known to Xx. Xxxxx) not recoverable from or enforceable against Xx.
Xxxxx in his capacity as surety shall nevertheless be recoverable from
or enforceable against Xx. Xxxxx as if Xx. Xxxxx were the sole
principal debtor or obligor (where relevant).
3. NO GREATER LIABILITY
Notwithstanding any other provision of this Agreement except in
relation to any taxes, Xx. Xxxxx shall have no greater liability under
this Agreement than that of Overture pursuant to the terms of the
Guaranteed Agreements and, for the avoidance of doubt, no call can
validly be made under any provision of this Agreement unless and until
an obligation to be performed under the Guaranteed Agreements has
fallen due and not been performed in accordance with the terms of the
Guaranteed Agreements.
4. NO EFFECT
4.1 The obligations of Xx. Xxxxx under this Agreement shall not be affected
by any act, omission or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this
Agreement including:
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4.1.1 any alteration to any provision of the Guaranteed Agreements
or to the extent or nature of the obligations to be performed
pursuant to the Guaranteed Agreements or the granting of any
time or other indulgence or the making of any concession or
arrangement pursuant to or in connection with the same;
4.1.2 the taking, variation, compromise, renewal or release of or
refusal or neglect to effect, take up or enforce any rights
against Overture;
4.1.3 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status, function, control or ownership of Overture;
4.1.4 any unenforceability, illegality or invalidity, under any
applicable law, of any obligation or liability of Overture
under the Guaranteed Agreements (in the event of such, Xx.
Xxxxx'x liability under this Agreement shall remain in full
force as a separate, original and independent principal
obligation and this Agreement shall be construed accordingly);
4.1.5 the giving by Overture or Eco Telecom of any consent to an
assignment or any transfer or novation or the making of any
assignment, transfer or novation of the Share Purchase
Agreement or any part thereof.
4.2 The liabilities and obligations of Xx. Xxxxx under this Agreement shall
remain in force notwithstanding any act, omission, neglect, event or
matter whatsoever, and (subject to Clause 4.3) the foregoing shall
apply, without limitation, in relation to:
4.2.1 without prejudice to any legal or equitable defence which
Overture may have under the Guaranteed Agreements, anything
which would have discharged Xx. Xxxxx (wholly or in part)
whether as principal, surety, co-obligor or otherwise or which
would have afforded Xx. Xxxxx any legal or equitable defence;
4.2.2 any winding up, dissolution, reconstruction or reorganisation,
legal limitation, incapacity or lack of corporate power or
authority or other circumstances of, or any change in the
constitution or corporate identity or loss of corporate
identity by, Overture; and
4.2.3 partial performance of the Guaranteed Obligations by Overture,
provided that in the event of partial performance by Overture,
any liability of Xx. Xxxxx shall not be greater than any
obligations or liability of Overture that would be necessary
to render full and complete performance by Overture under the
terms of the Guaranteed Agreements.
4.3 Notwithstanding any other provision in this Agreement, Xx. Xxxxx shall
not be liable under this Agreement for any obligation or liability of
Overture to the extent that such obligation or liability is or would be
illegal.
5. TERMINATION
5.1 The surety provided in this Agreement shall be terminated with the
termination of the Guaranteed Obligations.
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6. CONTINUING SURETY
6.1 This Agreement shall be a continuing surety and remain in force
notwithstanding any intermediate settlement of account or payment or
any change in the constitution or control of Overture, or the
appointment of a receiver, administrative receiver or administrator of
any of Overture's assets, insolvency or any bankruptcy, winding-up,
reorganisation, amalgamation, reconstruction or analogous matter or
proceedings relating to Overture.
6.2 Notwithstanding any matter referred to in Clause 6.1, each assurance,
security or payment made hereunder which may be avoided under any
enactment relating to bankruptcy or insolvency from time to time shall
remain in force or payable, as appropriate.
6.3 No single exercise of any right, power or privilege conferred by this
Agreement shall preclude any other or future exercise thereof or the
exercise of any other right, power or privilege.
7. AMENDMENTS TO GUARANTEED AGREEMENTS
Xx. Xxxxx hereby authorises Overture and Eco Telecom to make any
amendment or variation to the Guaranteed Agreements. The full and due
performance and observance of any such amendment or variation shall be
likewise guaranteed by Xx. Xxxxx in accordance with the terms of this
Agreement; provided, however, that the obligations of Xx. Xxxxx under
this Agreement shall not be increased without his prior consent.
8. ENFORCEMENT
This Agreement may be enforced without first taking any steps or
proceedings against Overture. This Agreement is in addition to and not
in substitution for any present and future guarantee, lien or other
security held by Eco Telecom. Eco Telecom's rights hereunder are in
addition to and not exclusive of those provided by law.
9. ALIENATION
9.1 Eco Telecom shall be entitled at any time to assign the benefit of this
Agreement to any person to whom Eco Telecom is entitled to assign and
actually assigns the benefit of the Guaranteed Agreements.
9.2 Xx. Xxxxx may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of Eco Telecom.
10. LIMITATION PERIOD
No action or proceedings under this Agreement may be commenced against
Xx. Xxxxx after the date upon which the claim which is the subject of
such proceedings would, if it had been made the subject of proceedings
under the relevant Guaranteed Agreements, have been subject to a
statutory limitation period under that Guaranteed Agreements.
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11. REPRESENTATION AND WARRANTY
Xx. Xxxxx represents and warrants to Eco Telecom that he has full
power, authority and right to enter into this Agreement and, subject to
any restrictions which may exist under Russian currency laws and
regulations (including the need to obtain permission from the Central
Bank of the Russian Federation), to perform its obligations hereunder
and that this Agreement constitutes Xx. Xxxxx'x valid and legally
binding obligations.
12. INDEMNITY
As a separate, additional, continuing and primary obligation Xx. Xxxxx
hereby unconditionally and irrevocably undertakes with Overture that it
will fully indemnify Eco Telecom on an after-tax basis upon demand
against all losses, claims, costs, charges and expenses (and any taxes
or charges thereon) to which Eco Telecom may be subject or which Eco
Telecom may incur as a result of any default or breach by Overture of
its liabilities or the Guaranteed Obligations under or pursuant to the
Guaranteed Agreements or any default in respect of any of such
Obligations or liabilities by Xx. Xxxxx under or pursuant to this
Agreement.
13. SEVERABILITY
If any of the provisions of this Agreement become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
effected or impaired.
14. WITHHOLDINGS AND DEDUCTIONS
14.1 All payments made by any party under this Agreement shall be made in
full without deduction or withholding whatsoever (whether in respect of
any set off, counterclaim, duties, taxes, charges or otherwise) unless
such deduction or withholding is required by law. If such a deduction
or withholding in respect of tax is required by law in respect of any
payments made by Xx. Xxxxx to Eco Telecom under this Agreement:
14.1.1 Xx. Xxxxx shall ensure that the deduction or withholding does
not exceed the minimum amount legally required;
14.1.2 Xx. Xxxxx shall pay to the relevant taxation or other
authorities within the period for payment permitted by the
applicable law the full amount of the deduction or
withholding;
14.1.3 Xx. Xxxxx shall furnish to Eco Telecom within the period for
payment permitted by the relevant law, either:
(A) an official receipt of the relevant taxation or other
authorities involved in respect of all amounts so
deducted or withheld; or
(B) if such receipts are not issued by the taxation or
other authorities concerned on payment to them of
amounts so deducted or withheld, a certificate of
deduction or equivalent evidence of the relevant
deduction or withholding, and
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14.1.4 Xx. Xxxxx shall pay to Eco Telecom an additional amount
calculated to ensure that the net amount received by Eco
Telecom (taking into account any deduction or withholding
required on such additional amount) will equal the full amount
which would have been received by it had no such deduction or
withholding been made.
14.2 If and to the extent that Eco Telecom pays any additional amount under
Clause 14.1.4 and Eco Telecom receives and retains the benefit of a
refund of tax or credit against tax on its overall net income which is
identified by Eco Telecom as attributable to the tax that was withheld
or deducted, then Eco Telecom shall reimburse to Xx. Xxxxx such amount
as Eco Telecom shall determine as to leave Eco Telecom, after the
reimbursement, in no better or worse position than it would have been
in if payment of the relevant additional amount had not been required.
15. NOTICE
15.1 All notices, requests and other communications hereunder including any
request for arbitration must be in writing and will be deemed to have
been duly given only if delivered personally or by facsimile
transmission or sent by courier to the parties at the following
addresses or facsimile numbers:
(a) If to Eco Telecom:
Eco Telecom Limited
Xxxxx 0, 0 Xxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxxx No.: x000-00000
Attention: Xxxxx Xxxx
with a copy to:
OOO Alfa-Eco
21 Ulitsa Novy Arbat
121019 Moscow
Russian Federation
Facsimile No.: x0000-000-0000
Attention: Stanislav Shekshnya
and a copy to:
Xxxxxxx Xxxxx CIS Legal Services
00 Xxxxxxxxxxxx Xxxxxxxx
000000 Xxxxxx
Russian Federation
Facsimile No.: + 0-000-000-00-00
Attention: Xxxxxxxx Xxxxxxx
(b) If to Xx. Xxxxx, to:
Xx. Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx 0-xxx Xxxxxxxxx-Xxxxxxxx Xxx 0, Xxxxxxxx 0
0
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125147 Moscow, Russian Federation
Facsimile No.: +(7) (095) 721 0017
Attention: Xx. Xxxxxx X. Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxxxxxxxx Xxxxxxxx 0, Xxxxxxxx 0
000000 Xxxxxx, Russian Federation
Facsimile: + (7) (095) 797 4601
Attention: Xxxxx Xx Xxxx, Esq.
15.2 All such notices, requests and other communications including any
request for arbitration will: (a) if delivered personally to the
address as provided in this section, be deemed given and effective upon
delivery, (b) if delivered by facsimile transmission to the facsimile
number as provided in this section, be deemed given and effective upon
receipt, and (c) if delivered by courier in the manner described above
to the address as provided in this section, be deemed given and
effective upon confirmed receipt (in each case, regardless of whether
such notice, request or other communication is received by any other
person to whom a copy of such notice is to be delivered pursuant to
this section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to
that party by giving written notice specifying such change to the other
party.
16. GOVERNING LAW; DISPUTE RESOLUTION; CONSENT TO JURISDICTION
16.1 This Agreement shall be governed by and construed in accordance with
the laws of the Russian Federation. With respect to any and all
disputes, controversies or claims arising under, relating to or in
connection with this Agreement or the breach, termination or validity
thereof ("Disputes"), a Party initiating any suit, action or
arbitration or other proceeding in connection with any Dispute (a
"claimant") may at its sole discretion elect to settle such Dispute (i)
by arbitration, in which case such Dispute shall be finally and
exclusively settled by arbitration in accordance with the procedures
set forth in Clauses 16.2 and 16.3 or (ii) by bringing such suit,
action or other proceeding in a court of any competent jurisdiction.
16.2 If a claimant elects (as provided in Clause 16.1) to settle any Dispute
by arbitration, such Dispute shall be finally and exclusively settled
by arbitration in accordance with the Arbitration Rules of the
International Chamber of Commerce ("ICC") then in effect (the " ICC
Rules") by a panel of three (3) arbitrators with the following terms
and conditions:
(a) In the event of any conflict between the ICC Rules and the
provisions of this Agreement, the provisions of this Agreement
shall prevail.
(b) The place of the arbitration shall be Geneva, Switzerland.
(c) The claimant and respondent shall each nominate one arbitrator
in accordance with the ICC Rules. The two party-appointed
arbitrators shall have thirty (30) days from the date of the
nomination of the second arbitrator to agree on the
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nomination a third arbitrator who shall serve as chair of the
tribunal. Any arbitrator not timely nominated, shall, on the
request of any Party, be appointed by the ICC Court of
Arbitration in accordance with the ICC Rules.
(d) The English language shall be used as the written and spoken
language for the arbitration, the award and all matters
connected with the arbitration.
(e) The award of the arbitrators shall be final and binding on the
Parties may be enforced by any court of competent jurisdiction
and may be executed against the person and assets of the
losing Party in any competent jurisdiction.
16.3 To the extent related to any arbitration initiated in accordance with
Clauses 16.1(i) and 16.2, each Party unconditionally and irrevocably
agrees to submit to the non-exclusive jurisdiction of the courts
located in Geneva, Switzerland (the "Geneva Courts"), for the purpose
of any proceedings in aid of arbitration and for interim or
conservatory measures before an arbitral tribunal is duly constituted
under this Agreement, and for proceedings arising out of or relating to
the enforcement of any award or order of an arbitral tribunal duly
constituted under this Agreement. Each Party unconditionally and
irrevocably waives any objections that they may have now or in the
future to such jurisdiction including without limitation objections by
reason of lack of personal jurisdiction, improper venue, or
inconvenient forum.
16.4 Except for arbitration proceedings pursuant to Clause 16.2 and except
as set forth in Clause 16.3, no action, lawsuit or other proceeding
(other than the enforcement of an arbitration decision, an action to
compel arbitration or an application for interim, provisional, or
conservatory measures in connection with the arbitration), 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, in two originals as of the date first above written.
XX. XXXXXX X. XXXXX
/s/ Xx. Xxxxxx X. Xxxxx
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ECO TELECOM LIMITED
By /s/ Serge Barychkov
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Name: Serge Barychkov
Title: Attorney-in-Fact
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SPOUSE CONSENT
to the other spouse owning, using and disposing of the common property of the
spouses and to the consummation of the transactions with such property,
including those which require notarization and/or registration
Moscow, May 30, 2001
I, Maya Pavlovna Zimina, born 1936, passport: series X-NA, No. 694061, issued on
November 8, 1995 by OVD MO Khovrino, Moscow, registered and residing at: Russian
Federation, Moscow, xx. Xxxxxxxxxxxx, 00, xxxx. 3, appt. 269, have been legally
married to Xxxxxx Xxxxxxxxxx Xxxxx, born in 1933, since November 16, 1961
(marriage certificate series II--DA No. 345632). During our marriage we have
acquired certain property, including 6,426,600 (six million four hundred twenty
six thousand six hundred) registered preferred shares of the Open Joint Stock
Company Vimpel-Communications ("VimpelCom") and 181,739 (one hundred eighty-one
thousand seven hundred thirty-nine) ordinary shares of VimpelCom ("Property").
Such property is our common property and is not owned together with us by our
grown-up children of age or any other persons on any grounds contemplated by the
Russian law.
As required by Article 35 of the Family Code of the Russian Federation, I hereby
give consent to the performance by my husband Xxxxxx Xxxxxxxxxx Xxxxx of any
actions in connection with the ownership, use and disposal of all or any part of
the aforementioned Property, and to the consummation by him of transactions,
including those which require notarisation and/or registration, including:
(i) I confirm by consent, both as of the time of the consummation of the
relevant transactions and execution of the relevant documents, and as of now, to
the signing by Xxxxxx X. Xxxxx of:
- Share Purchase Agreement with Overture Limited dated as of May 30,
2001;
- Share Purchase Agreement with Eco Telecom Limited dated as of May 30,
2001;
- Surety Agreement with Eco Telecom Limited dated as of May 30, 2001;
- Other contracts, agreements, letters and other documents issued in
connection with the said transaction;
- Any amendments to the said agreements;
(ii) I consent to the execution by Xxxxxx X. Xxxxx of any transactions and
documents and performance of any actions with respect to the aforementioned
shares in future.
The content of Article 35 of the Family Code of the Russian Federation was
explained to me and I understand it.
Signature
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Maya Pavlovna Zimina
