REGISTRATION RIGHTS AGREEMENT
Dated as of August 19, 2003
between and among
Golden Telecom, Inc.,
Alfa Telecom Limited,
Xxx Telenor East Invest AS,
OAO Rostelecom,
Capital International Global Emerging Markets Private Equity Fund, L.P.,
Cavendish Nominees Limited
and
First NIS Regional Fund SICAV
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................1
1.1 DEFINITIONS...........................................................1
1.2 INTERPRETATION........................................................4
2. SECURITIES SUBJECT TO THIS AGREEMENT.....................................5
3. DEMAND REGISTRATION......................................................5
3.1 DEMAND REQUESTS.......................................................5
3.2 CERTAIN COMPANY OBLIGATIONS...........................................5
3.3 EFFECTIVE REGISTRATION STATEMENT......................................6
3.4 NUMBER OF, AND LIMITATIONS ON, REGISTRATIONS..........................6
3.5 EXPENSES..............................................................6
3.6 SELECTION OF UNDERWRITERS.............................................6
3.7 CIRCUMSTANCES AND EFFECT OF WITHDRAWAL OF DEMAND REGISTRATION.........6
4. INCIDENTAL REGISTRATION..................................................7
4.1 REQUEST FOR REGISTRATION..............................................7
4.2 EXPENSES..............................................................8
5. REGISTRATION PROCEDURES..................................................8
6. EXPENSES................................................................12
7. INDEMNIFICATION.........................................................13
7.1 INDEMNIFICATION BY THE COMPANY.......................................13
7.2 INDEMNIFICATION BY SHAREHOLDERS......................................13
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS...............................13
7.4 CONTRIBUTION.........................................................14
8. TRANSFER OF REGISTRATION RIGHTS.........................................15
9. NO INCONSISTENT AGREEMENTS..............................................15
10. TERM AND TERMINATION.................................................15
11. MISCELLANEOUS........................................................16
11.1 SPECIFIC PERFORMANCE.................................................16
11.2 WAIVERS; REMEDIES....................................................16
11.3 AMENDMENTS...........................................................16
11.4 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES..........16
11.5 SEVERABILITY.........................................................16
11.6 FURTHER ASSURANCES...................................................16
11.7 ENTIRE AGREEMENT.....................................................17
11.8 NOTICES..............................................................17
11.9 GOVERNING LAW........................................................21
11.10 ARBITRATION; WAIVER OF SOVEREIGN IMMUNITY............................21
11.11 COUNTERPARTS; LANGUAGE...............................................23
REGISTRATION RIGHTS AGREEMENT dated as of August 19, 2003 (this
"AGREEMENT") between and among Golden Telecom, Inc., a corporation
organized under the laws of the State of Delaware, United States of America
(the "COMPANY"), Alfa Telecom Limited, a company organized under the laws
of the British Virgin Islands ("ALFA"), Xxx Telenor East Invest AS, a
company organized under the laws of Norway ("TELENOR"), OAO Rostelecom, an
open joint stock company organized under the laws of the Russian Federation
("RTK"), Capital International Global Emerging Markets Private Equity Fund,
L.P., a limited partnership organized under the laws of the State of
Delaware, United States of America ("CIG"), Cavendish Nominees Limited, a
limited liability company organized under the laws of Guernsey
("CAVENDISH"), and First NIS Regional Fund SICAV, a private institutional
fund organized under the laws of Luxembourg ("FIRST NIS" and, together with
Cavendish, collectively, "BARINGS").
WITNESSETH
WHEREAS, Telenor has agreed to sell to the Company, and the Company
has agreed to purchase from Telenor, all of the shares of capital stock of
Open Joint Stock Company "Comincom" pursuant to the Share Exchange
Agreement dated as of the date hereof between the Company and Telenor (the
"SHARE EXCHANGE AGREEMENT"); and
WHEREAS, it is a condition precedent to the obligations of the
Company and Telenor under the Share Exchange Agreement that the Company and
the Shareholders enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"ADVICE" has the meaning specified in the last paragraph of Section
5.
"AFFILIATE" means, with respect to any Person, any other Person who
directly or indirectly controls, or is under common control with, or is
controlled by, such Person, including, if such Person is an individual, any
relative or spouse of such Person, or any relative of such spouse of such
Person, any one of whom has the same home as such Person, and also
including any trust or estate for which any such Person or Persons
specified herein, directly or indirectly, serves as a trustee, executor or
in a similar capacity (including, without limitation, any protector or
settlor of a trust) or in which any such Person or Persons specified
herein, directly or indirectly, has a substantial beneficial interest, and
any Person who is controlled by any such trust or estate; provided always
that, in the case of CIG, an Affiliate of CIG shall include only those
Affiliates in which Capital International, Inc. holds, directly or
indirectly, through one or more intermediaries, more than a majority of the
outstanding economic ownership interests of that Person. As used in this
definition, "CONTROL" (including, with its correlative meanings,
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means, with respect to any
Person, the 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 a Person.
"AGENTS" means any Person authorized to act and who acts on behalf
of a Shareholder with respect to the transactions contemplated by this
Agreement.
"AGREEMENT" has the meaning specified in the preamble hereto.
"ALFA" has the meaning specified in the preamble hereto.
"BARINGS" has the meaning specified in the preamble hereto.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or any
day on which banks located in Moscow, Russia, Oslo, Norway, London, England
or New York, New York are authorized or obliged to close.
"CAVENDISH" has the meaning specified in the preamble hereto.
"CIG" has the meaning specified in the preamble hereto.
"COMMON STOCK" means shares of the Company's common stock, par
value $.01 per share, as the same may be constituted from time to time.
"COMPANY" has the meaning specified in the preamble hereto.
"CONTROLLED AFFILIATE" means, with respect to any Person, any
Affiliate of such Person in which such Person owns or controls, directly or
indirectly, more than fifty percent (50%) of the securities having ordinary
voting power for the election of directors or other governing body thereof
or more than fifty percent (50%) of the partnership or other ownership
interests therein (other than as a limited partner).
"CONTROLLING PERSON" means, with respect to any Person, any other
Person which owns or controls, directly or indirectly, more than fifty
percent (50%) of the securities having ordinary voting power for the
election of directors or other governing body of such first Person or more
than fifty percent (50%) of the partnership or other ownership interests
therein (other than as a limited partner of such first Person).
"DEMAND REGISTRATION" has the meaning specified in Section 3.1.
"DEMAND REQUEST" has the meaning specified in Section 3.1.
"EFFECTIVE DATE" means the latter to occur of (a) the date on which
the board of directors of RTK has ratified and approved RTK's execution of
this Agreement and the other Principal Agreements to which RTK is a party
and (b) the date on which the Closing under (and as defined in) the Share
Exchange Agreement has occurred.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"EXISTING REGISTRATION RIGHTS AGREEMENTS" means (a) the
Registration Rights Agreement, dated as of October 5, 1999 between GTI and
First NIS Regional Fund SICAV, as amended by the Assignment and Amendment
Agreement dated as of May 11, 2001 among GTI, Baring Vostok Private Equity
Fund L.P., Cavendish and First NIS, (b) the Registration Rights Agreement
dated as of October 5, 1999 between GTI and Global TeleSystems Group, Inc.,
as assigned by the Shareholders Agreement dated as of May 11, 2001 among
GTI, Global TeleSystems Europe Holdings, B.V., Alfa, CIG, Cavendish and
First NIS, (c) the Registration Rights Agreement dated as of October 5,
1999 between GTI and Baring Vostok Private Equity Fund, L.P., as amended by
the Assignment and Amendment Agreement dated as of May 11, 2001 among GTI,
Baring Vostok Private Equity Fund, L.P., Cavendish and First NIS, (d) the
Shareholders and Registration Rights Agreement dated as of December 23 1999
among GTI, Global TeleSystems Group, Inc. and CIG, as assigned by the
Shareholders Agreement dated as of May 11, 2001 among GTI, Global
TeleSystems Europe Holdings, B.V., Alfa, CIG, Cavendish and First NIS and
(e) the Registration Rights Agreement dated September 5, 2002 between RTK
and GTI.
"FIRST NIS" has the meaning specified in the preamble hereto.
"PARTICIPATING SHAREHOLDER" has the meaning specified in Section
5(a).
"PARTIES" means the Company, Alfa, Telenor, RTK, CIG, Cavendish and
First NIS, provided that a Shareholder shall cease to be a Party when such
Shareholder ceases to hold any Registrable Securities.
"PERMITTED TRANSFEREE" means, with respect to any Shareholder, any
Controlling Person of such Shareholder, or any Controlled Affiliate of any
such Controlling Person or Shareholder; provided that (a) in the case of
Cavendish, Baring Vostok Private Equity Fund, L.P.1, Baring Vostok Private
Equity Fund, L.P.2, Baring Vostok Private Equity Fund L.P.3, Baring Vostok
Fund Co-Investment L.P., the NIS Restructuring Facility and First NIS
Regional Fund SICAV shall also constitute Permitted Transferees, and (b) in
the case of RTK, if the conditions set forth in Section 4.2(b) of the
Shareholders Agreement have been satisfied (as determined by a majority of
the Disinterested Directors, in their sole discretion), any RTK Transferee
shall also constitute a Permitted Transferee.
"PERSON" means any natural person, corporation, partnership,
limited liability company, proprietorship, other business organization,
trust, union, association or Governmental or Regulatory Authority, whether
incorporated or unincorporated.
"PRINCIPAL AGREEMENTS" means this Agreement, the Share Exchange
Agreement, the Shareholders Agreement and the Standstill Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and all other amendments
and supplements to the Prospectus, including post-effective amendments and
all material incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means (a) in aggregate, the 10,840,647
shares of Common Stock held by Alfa, the 4,024,067 shares of Common Stock
held by RTK, the 2,166,405 shares of Common Stock held by CIG, the
2,569,676 shares of Common Stock held by Barings, and the shares of Common
Stock to be acquired by Telenor pursuant to the Share Exchange Agreement,
(b) any shares of Common Stock acquired in connection with the exercise by
any of such Parties of its rights under Section 3.4 of the Shareholders
Agreement, and (c) any securities issued or issuable with respect to any
such shares of Common Stock by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"REGISTRATION EXPENSES" has the meaning specified in Section 6.
"REGISTRATION STATEMENT" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including (a) the Prospectus, (b) any amendments and
supplements to such Registration Statement, (c) any post-effective
amendments, (d) all exhibits and all material incorporated by reference in
such Registration Statement and (e) any registration statement pursuant to
a Demand Registration.
"REQUESTING SHAREHOLDER" has the meaning specified in Section 3.1.
"RTK" has the meaning specified in the preamble hereto.
"RTK TRANSFEREES" means RTC-Leasing OJSC, RosTelecComLeasing Ltd.,
Zurich, RosTeleComLeasing (Cyprus) Limited and Russian Telecommunications
Development Corporation.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"SEC" means the United States Securities and Exchange Commission.
"SHARE EXCHANGE AGREEMENT" has the meaning specified in the first
recital hereto.
"SHAREHOLDERS" means Alfa, Telenor, RTK, CIG and Barings.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement dated as
of the date hereof between and among the Company and the Shareholders.
"TELENOR" has the meaning specified in the preamble hereto.
"TERMINATION AGREEMENT" means the Termination Agreement dated as of
the date hereof between and among the Company, Alfa, RTK, CIG, First NIS
and Cavendish.
"UNCITRAL RULES" has the meaning specified in Section 11.10(a).
"UNDERWRITTEN OFFERING" means the offering and sale of securities
of the Company covered by any Registration Statement pursuant to a firm
commitment underwriting to an underwriter at a fixed price for reoffering
or pursuant to agency or best efforts arrangement with an underwriter.
1.2 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 "Article" or "Section" is a reference to a
specific Article or Section of 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.
2. SECURITIES SUBJECT TO THIS AGREEMENT
The securities entitled to the benefits of this Agreement are the
Registrable Securities but, with respect to any particular Registrable
Security, only until (a) it has been effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it, (b) it has been distributed pursuant to Rules 144 or
144A under the Securities Act (or any similar provision then in force) or
(c) it has otherwise been transferred and a new certificate or other
evidence of ownership thereof not bearing a legend restricting transfer
under the Securities Act and not subject to any stop transfer order has
been delivered by or on behalf of the Company and no other restriction on
transfer exists.
3. DEMAND REGISTRATION
3.1 DEMAND REQUESTS
Each Shareholder shall have the right to request (each, a
"REQUESTING Shareholder") in writing that the Company effect a registration
under the Securities Act with respect to all or part of the Registrable
Securities held by such Requesting Shareholder(s) (a "DEMAND
REGISTRATION"). The Requesting Shareholder(s) shall deliver to the Company
in accordance with Section 11.8 a written request for a Demand Registration
(a "DEMAND REQUEST") specifying the number of Registrable Securities to be
registered, the intended method of distribution and other relevant facts.
3.2 CERTAIN COMPANY OBLIGATIONS.
Following delivery of a Demand Request, and subject to the
conditions of this Article 3, the Company shall:
(a) give prompt written notice of such Demand Request to all other
Shareholders in accordance with Section 11.8, and such Shareholders shall
have thirty (30) days from receipt thereof to respond in order to have any
Registrable Securities owned by such Shareholders included in such
registration;
(b) use all reasonable efforts to effect such registration as
promptly as practicable (including, without limitation, by filing a
Registration Statement (and executing an undertaking to file any amendments
thereto) covering the Registrable Securities so requested to be registered
and complying with applicable regulations issued under the Securities Act
and any other governmental requirements or regulations) or as may be so
requested; and
(c) refrain from filing any other Registration Statements, other
than pursuant to a Registration Statement on Form S-4 or S-8 (or successor
forms), with respect to any securities, including Registrable Securities,
of the Company until such date that is ninety (90) days following
effectiveness of the Registration Statement filed in connection with such
Demand Registration.
3.3 EFFECTIVE REGISTRATION STATEMENT
Subject to Section 3.7, a Demand Registration shall not be deemed
to have been effected unless a Registration Statement with respect thereto
has become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement for the
period of time required pursuant to Section 5(c).
3.4 NUMBER OF, AND LIMITATIONS ON, REGISTRATIONS
Each of Alfa, Telenor and RTK shall be entitled to request 2 (two)
Demand Registrations. Each of Barings and CIG shall be entitled to request
1 (one) Demand Registration. The Company shall not be obligated to register
any Registrable Securities pursuant to any Demand Registration unless there
is requested to be included in such registration by the Requesting
Shareholder(s) at least 500,000 shares of Common Stock (subject to such
adjustments as may be necessary by reason of the occurrence of an event
contemplated by clause (b) of the definition of Registrable Securities).
3.5 EXPENSES
Except as provided in Section 3.7, in any registration initiated as
a Demand Registration, the Company will pay all Registration Expenses,
whether or not the Registration Statement has become effective.
3.6 SELECTION OF UNDERWRITERS
If any of the Registrable Securities covered by a Demand
Registration are to be sold in an underwritten offering, or in a best
efforts underwritten offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected
jointly by the Requesting Shareholder(s) and the Company.
3.7 CIRCUMSTANCES AND EFFECT OF WITHDRAWAL OF DEMAND REGISTRATION
Upon the request of any Requesting Shareholder or if a sufficient
number of Requesting Shareholders withdraw from a Demand Registration such
that the number of Registrable Securities to be included in such Demand
Registration fails to meet the threshold specified in Section 3.4, the
Company shall have the right to cease proceeding with a Demand Registration
requested by such Requesting Shareholder(s). In such event, (a) the
Requesting Shareholder(s) shall bear all Registration Expenses incurred in
connection with such Demand Registration, in which event such Demand
Registration shall not count as a Demand Registration for purposes of
Section 3.4 or (b) the Company shall bear all such Registration Expenses,
in which event such withdrawn Demand Registration shall count as a Demand
Registration for purposes of Section 3.4; provided that a Requesting
Shareholder shall be entitled to withdraw from a Demand Registration and
neither (i) pay any Registration Expenses in connection therewith nor (ii)
forfeit the right to such Demand Registration for purposes of Section 3.4
if (A) such Requesting Shareholder learned of a material adverse change in
the financial condition, business or prospects of the Company that was not
known to such Requesting Shareholder on the date of such Requesting
Shareholder's Demand Request and (B) the Company failed to disclose such
material adverse change to such Requesting Shareholder at the time such
Demand Request was delivered.
4. INCIDENTAL REGISTRATION
4.1 REQUEST FOR REGISTRATION
If the Company at any time proposes to register any of its
authorized but unissued shares of Common Stock on its own behalf for the
purposes of raising capital (other than on Form S-4 or Form S-8 or any
successor or similar form to Form S-4 or Form S-8), or any of its
unregistered and issued shares of Common Stock on behalf of other
stockholders, under the Securities Act on a form and in a manner that would
permit registration of Registrable Securities under the Securities Act for
sale to the public, it shall, in each such case, give prompt notice in
accordance with the provisions of Section 11.8 to each Shareholder of its
intention to do so, specifying the form and manner and the other relevant
facts involved in such proposed registration (including, without
limitation, the identity of the managing underwriter, if any). Upon the
written request of a Shareholder delivered to the Company within thirty
(30) days after such notice shall have been given to such Shareholder
(which request shall specify the number of Registrable Securities intended
to be disposed of by such Shareholder and the intended method of
disposition thereof), the Company will use its reasonable best efforts to
effect the registration under the Securities Act, as expeditiously as is
reasonable, of all the Registrable Securities that the Company has been so
requested to register by such Shareholder, to the extent requisite to
permit the sale of the Registrable Securities to be so registered;
provided, however, that:
(a) if, at any time after giving such written notice of its
intention to register any shares of Common Stock proposed to be registered
by the Company and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register such shares of Common Stock, the
Company shall, at its election, give written notice of such determination
to each Shareholder, and thereupon the Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
in connection therewith to the extent provided in Section 4.2); and
(b) if the managing underwriter of such offering shall advise the
Company that, in its judgment, the number of shares of Common Stock
proposed to be included in such offering should be limited because the
inclusion of Registrable Securities is likely to adversely impact the
purchase price obtained for the shares of Common Stock proposed to be
included in such offering, then the Company shall promptly advise each
Shareholder thereof and may require, by written notice to such Shareholder
accompanying such advice, that, to the extent necessary to meet such
limitation, all holders of Registrable Securities and of other shares of
Common Stock proposing to sell shares of Common Stock in such offering
shall share pro rata in the number of shares of Common Stock to be excluded
from such offering, such sharing to be based on the respective numbers of
Registrable Securities and other shares of Common Stock as to which
registration has been requested by such holders, and that the distribution
of such Registrable Securities and other shares of Common Stock as are so
excluded be deferred (in case of a deferral as to a portion of such
Registrable Securities and other shares of Common Stock, such portion to be
allocated among such holders in proportion to the respective numbers of
shares of Common Stock so requested to be registered by such holders) until
the completion of the distribution of such shares of Common Stock and any
other securities by such underwriters.
4.2 EXPENSES
In any registration initiated pursuant to this Article 4, the
Company will pay all Registration Expenses, whether or not the Registration
Statement has become effective.
5. REGISTRATION PROCEDURES
Whenever a Shareholder has requested that any Registrable
Securities be registered pursuant to this Agreement, the Company shall
promptly take all such actions as may be necessary or desirable to permit
the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement
covering Registrable Securities made pursuant to Article 3, use its
reasonable best efforts to prepare and file with the SEC not later than
sixty (60) days after receipt of the relevant Demand Request (which sixty
(60) day period may be extended by the Company for up to an additional
sixty (60) days if at the time of such request the Company is engaged in
negotiations in anticipation of its participation in a material merger,
acquisition or other form of business combination or, if by reason of such
transaction, the Company is not in a position to timely prepare and file
the Registration Statement and the Company furnishes to each Shareholder
participating, or electing to participate, in such registration of
Registrable Securities (the "PARTICIPATING SHAREHOLDER") a certificate
signed by the president or a vice president of the Company stating that in
the good faith opinion of the board of directors of the Company such
registration would interfere with such transaction then being pursued by
the Company) a Registration Statement on a form for which the Company then
qualifies which is satisfactory to the Company and the Participating
Shareholders (unless the offering is made on an underwritten basis,
including on a best efforts underwriting basis, in which event the managing
underwriter or underwriters may determine the form to be used) and which
form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof, and
use its reasonable best efforts to cause such Registration Statement to
become effective; the Company shall not file any Registration Statement
pursuant to Article 3 or any amendment thereto or any Prospectus or any
supplement thereto (including such documents incorporated by reference) to
which the Participating Shareholders or the underwriters, if any, shall
reasonably object in light of the requirements of the Securities Act or any
other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (excluding documents to be incorporated
by reference therein, except in the case of the preparation of the initial
Registration Statement), the Company shall, at least five (5) days before
filing, furnish to each Participating Shareholder and the underwriters, if
any, copies of all such documents in substantially the form proposed to be
filed (including documents incorporated therein by reference), to enable
such Participating Shareholders and the underwriters, if any, to review
such documents prior to the filing thereof, and the Company shall make such
reasonable changes thereto (including changes to, or the filing of
amendments reflecting such changes to, documents incorporated by reference)
as may be reasonably requested by such Participating Shareholders and the
managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC
such amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement continuously
effective for a period of not less than ninety (90) days; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended methods of
disposition by the Participating Shareholders set forth in such
Registration Statement or supplement to the Prospectus;
(d) notify the Participating Shareholders and the managing
underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing, (i) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
the Registration Statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (iv) if at any time any of
the representations or warranties of the Company contemplated by paragraph
(o) below cease to be true and correct, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, and (vi) of the
occurrence of any event which makes any statement made in the Registration
Statement, the Prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference
in order to make the statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(f) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement
or the Prospectus (after initial filing of the Registration Statement),
provide copies of such document to counsel to the Participating
Shareholders and to the managing underwriters;
(g) provide to the Participating Shareholders and each managing
underwriter, without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference) and a
reasonable number of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the underwriters,
if any, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons may
reasonably request; the Company consents to the use of the Prospectus or
any amendment or supplement thereto by the Participating Shareholders and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(i) prior to the date on which the Registration Statement is
declared effective, use its reasonable best efforts to register or qualify,
or cooperate with the Participating Shareholders and the underwriters, if
any, and their respective counsel in connection with the registration or
qualification of, such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any seller or
underwriter reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or taxes in any such jurisdiction where it is not then so
subject; provided, further, that the Company will not be required to
qualify such Registrable Securities in any jurisdiction in which the
securities regulatory authority requires that the Participating
Shareholders submit any shares of its Registrable Securities to the terms,
provisions and restrictions of any escrow, lock-up or similar agreement(s)
for consent to sell Registrable Securities in such jurisdiction unless the
Participating Shareholders agrees to do so;
(j) cooperate with the Participating Shareholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters may request at least two (2) Business Days prior to any sale
of Registrable Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the
United States as may be necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such
Registrable Securities;
(l) upon the occurrence of any event contemplated by paragraph
(d)(vi) above, prepare a supplement or post-effective Amendment to the
Registration Statement or the Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(m) use its reasonable best efforts to cause all Registrable
Securities covered by the Registration Statement to be listed on the Nasdaq
National Market and each other exchange on which similar securities issued
by the Company are then listed if requested by Shareholder or the managing
underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable
Securities;
(o) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith as
Participating Shareholders or the managing underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration (i) make such representations and
warranties to the Participating Shareholders and the underwriters, if any,
in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings (including, without
limitation, an agreement to not sell equity securities during a customary
lock-up period) and confirm the accuracy of the same if and when requested,
and matters relating to the compliance of the Registration Statement and
the Prospectus with the Securities Act; (ii) obtain opinions of counsel to
the Company, and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters) addressed to Participating Shareholders and the underwriters,
if any, covering the matters customary in underwritten primary offerings
and such other matters as may be reasonably requested by the Participating
Shareholders and underwriters, if any; (iii) obtain "comfort" letters and
updates thereof from the Company's independent certified public
accountants, subject to such accountants' customary procedures, addressed
to the Participating Shareholders and the underwriters, if any, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters by underwriters in connection with
primary underwritten offerings; (iv) if an underwriting agreement is
entered into, the same shall set forth in full the indemnification
provisions and procedures of Article 7 with respect to all parties to be
indemnified pursuant to said Section; and (v) the Company shall deliver
such documents and certificates as may be requested by the Participating
Shareholders and the managing underwriters, if any, to evidence compliance
with clause (i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(p) make available for inspection during normal business hours by
the Participating Shareholders, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by the Participating Shareholders or any
such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by
the Participating Shareholders or any such underwriter, attorney,
accountant or agent in connection with such registration statement;
provided that any records, information or documents that are designated by
the Company in writing as confidential shall be kept confidential by such
Persons;
(q) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available
to its security holders, earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days
after the end of any twelve (12)-month period (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters
in a firm or best efforts underwriting offering, and (ii) beginning with
the first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall cover
said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or
advisable to permit the sale of such Registrable Securities.
The Company may require the Participating Shareholders to furnish
to the Company such information and documents regarding the Participating
Shareholders and the distribution of the Registrable Securities as the
Company may from time to time reasonably request in writing.
Each Shareholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
5(d)(vi) hereof, such Shareholder will forthwith discontinue disposition of
Registrable Securities until such Shareholder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5(l), or
until it is advised in writing (the "ADVICE") by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, each Participating
Shareholder will, or will request the underwriters to, deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies then in such Shareholder's possession, of the Prospectus covering
such Registrable Securities current at the time of receipt of such notice.
If the Company shall give such notice, the time periods mentioned in
Section 5(c) hereof shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5(d)(vi) to and including the date when such Participating
Shareholder shall have received the copies of the supplemented or amended
prospectus contemplated by Section 5(l) or the Advice.
6. EXPENSES
Except as otherwise provided herein, all expenses incident to the
Company's performance of or compliance with this Agreement including
without limitation all registration and filing fees, including with respect
to filings required to be made with the National Association of Securities
Dealers, fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the
laws of such jurisdictions as the managing underwriters or holders of a
majority of the Registrable Securities being sold may designate), printing
expenses, messenger, telephone and delivery expenses, and fees and
disbursements of counsel for the Company, and of all independent certified
public accountants (including the expenses of any special audit and
"comfort" letters required by or incident to such performance), the fees
and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities
issued by the Company are then listed, rating agency fees, securities acts
liability insurance if any Shareholder so requires, the reasonable fees and
expenses of any special experts retained by the Participating Shareholders
or by the Company at the request of the managing underwriters in connection
with such registration and fees and expenses of other Persons retained by
such Participating Shareholders (all such expenses being herein called
"REGISTRATION Expenses") will be borne by the Company. The Company shall,
in any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties) and the expense of any annual audit which are not
Registration Expenses for purposes of this Agreement. In no event shall the
Company be liable for the payment of any discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar industry
professionals relating to the distribution of the Registrable Securities.
The Participating Shareholders shall be liable for the cost and expense of
the time spent by their respective officers, employees and Agents,
including such Participating Shareholders' counsel, in connection with the
registration of Registrable Securities owned by them.
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY
The Company will indemnify and hold harmless, to the full extent
permitted by law, each Shareholder, its officers and directors, their
Agents and each Person who controls such Shareholder (within the meaning of
the Securities Act) against all losses, claims, damages, liabilities (or
actions in respect thereto) and expenses to which any such Person may be
subject, under the Securities Act or otherwise, and reimburse all such
Persons for any legal or other expenses incurred with investigating or
defending against any such losses, claims, damages or liabilities, insofar
as such losses, claims, damages or liabilities arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in
a Registration Statement, Prospectus or preliminary prospectus or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as the same arise out of or are based upon an
untrue statement of a material fact or omission of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, which statement or omission is made therein in reliance upon
and in conformity with information furnished in writing to the Company by
such Shareholder, expressly for use therein. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf
of any Shareholder, such Shareholder's directors and officers, their Agents
or a controlling Person, and shall survive the transfer of such securities
by any Shareholder. The Company will also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and each
Person who controls such Persons (with the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of
each Shareholder.
7.2 INDEMNIFICATION BY SHAREHOLDERS
Each Shareholder will indemnify and hold harmless, to the full
extent permitted by law, the Company, its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities (or actions in respect
thereto) and expenses to which any such Person may be subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in a Registration Statement or
Prospectus or preliminary prospectus or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only if and to the
extent, that such untrue or alleged untrue statement or omission or alleged
omission is made therein in reliance upon and in conformity with the
information furnished in writing by such Shareholder specifically for
inclusion therein. In no event shall the liability of any Shareholder
hereunder be greater in amount than the dollar amount of the proceeds
received by such Shareholder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
information so furnished in writing by such Persons.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS
Any Person entitled to indemnification hereunder will (a) give
prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (b) unless in such indemnified party's
reasonable judgment a conflict of interest may exist between such
indemnified and indemnifying parties with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party and in that case the
indemnified party shall have the right to participate in the conduct of
such defense provided that it will pay for the fees of its own counsel.
Whether or not such defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim,
in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. The failure to notify
an indemnifying party promptly of the commencement of any such action, if
and to the extent prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
under this Article 7, but the omission so to notify the indemnifying party
will not relieve it of any liability that it may have to any indemnified
party otherwise than under this Article 7.
7.4 CONTRIBUTION
(a) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified party in
connection with the actions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of material fact
or omission or alleged omission to state a material fact, has been made, or
relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. In any event, the amount of contribution
payable by any Shareholder hereunder shall not exceed the dollar amount of
the proceeds received by such Shareholder upon the sale of the Registrable
Securities giving rise to such contribution obligation.
(b) The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
8. TRANSFER OF REGISTRATION RIGHTS
The registration rights of each Shareholder under this Agreement
with respect to any Registrable Securities may be transferred to Permitted
Transferees or to another Shareholder; provided, however, that (a) the
transferring Shareholder shall give the Company written notice at or prior
to the time of such transfer stating the name and address of the transferee
and identifying the securities with respect to which the rights under this
Agreement are being transferred, (b) such transferee shall agree in
writing, in form and substance reasonably satisfactory to the Company, to
be bound by the provisions of this Agreement, and (c) the terms of such
transfer shall make clear how the transferor Shareholder and the transferee
shall utilize the Demand Registrations provided to each Shareholder
hereunder.
9. NO INCONSISTENT AGREEMENTS
The Company shall not enter into any agreement or arrangement of
any kind with any Person that is inconsistent with any of the rights
granted to the Shareholders in this Agreement or otherwise conflicts with
any of the provisions hereof.
10. TERM AND TERMINATION
This Agreement shall become effective on the Effective Date and
remain in effect until the date on which all of the Parties agree in
writing to the termination of this Agreement. Promptly following the date
on which its board of directors has ratified and approved RTK's execution
of this Agreement, RTK shall provide each other Party with a certified copy
of an extract from the protocol of the meeting of RTK's board of directors
containing such ratification and approval.
11. MISCELLANEOUS
11.1 SPECIFIC PERFORMANCE
The Parties hereby declare that it is impossible to measure in
money the damages that will accrue to a Party by reason of a failure by
another Party to perform any of the obligations under this Agreement.
Therefore, if any Party shall, in accordance with Section 11.10, institute
any proceeding to enforce specifically the provisions hereof, any Party
against whom such proceeding is brought hereby waives the claim or defense
therein that the Party instituting such proceeding has an adequate remedy
at law or in damages, and the Party against whom such proceeding is brought
shall not urge in any such proceeding the claim or defense that such remedy
at law or in damages exists.
11.2 WAIVERS; REMEDIES
Any term or condition of this Agreement may be waived at any time
by the Party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed
by or on behalf of the Party waiving such term or condition. No waiver by
any Party of any term or condition of this Agreement, in one or more
instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise afforded, will
be cumulative and not alternative.
11.3 AMENDMENTS
This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each Party.
11.4 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES
Except as expressly provided in Article 8, neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any
Party without the prior written consent of the other Parties and any
attempt to do so will be void. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is enforceable by
the Parties and their respective successors and assigns. The terms and
provisions of this Agreement are intended solely for the benefit of each
Party and their respective successors or permitted assigns, and, except as
specified in Article 7, it is not the intention of the Parties to confer
third party beneficiary rights upon any other Person.
11.5 SEVERABILITY
If any provision of this Agreement is or shall become invalid,
illegal or unenforceable in any jurisdiction, the invalidity, illegality or
unenforceability of such provision in such jurisdiction shall not affect or
impair the validity, legality or enforceability of (a) any other provision
of this Agreement or any such other document in such jurisdiction or (b)
such provision or any other provision of this Agreement or any such other
document in any other jurisdiction.
11.6 FURTHER ASSURANCES
From time to time, at any Party's reasonable request and without
further consideration, each Party 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.
11.7 ENTIRE AGREEMENT
This Agreement and the other Principal Agreements will, from and
after the Effective Date, supersede all prior discussions and agreements
among the Parties with respect to the subject matter hereof and thereof and
contain the sole and entire agreement between the Parties with respect to
the subject matter hereof and thereof. For the avoidance of doubt, the
Parties acknowledge that the Existing Registration Rights Agreements shall
remain in full force and effect until the Effective Date, whereupon the
Existing Registration Rights Agreements shall terminate and be of no
further force and effect.
11.8 NOTICES
All notices, requests, demands and other communications provided
for by this Agreement shall be in writing (including telecopier or similar
writing) and shall be deemed to have been duly given only if delivered
personally or by facsimile transmission or sent by courier, addressed to
the address of the parties stated below or to such changed address as such
party may have fixed by notice or, if given by telecopier, when such
telecopy is transmitted and the appropriate answerback is received.
(i) If to Alfa:
Alfa Telecom Limited
X.X. Xxx 0000
Xxxxxx Xxxxx
0xx Xxxxx
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Facsimile No.: x000 00 000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Squire, Xxxxxxx & Xxxxxxx
2/2 Paveletskaya Square
115054 Moscow Russian Federation
Facsimile No.: x0 (000) 000-0000
Attention: Xxxxx Xxxx
(ii) If to Telenor:
Xxx Telenor East Invest AS
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
Facsimile No.: x00 0000 0000
Attention: Kjell Xxxxxx Xxxxxxx
with a copy to:
Advokatene i Xxxxxxx
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
Facsimile No.: x00 00 00 0000
Attention: Xxxxx Xxxxxxx
and to:
Coudert Brothers LLP
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (000) 000 0000
Attention: Xxxxx X'Xxxxxxxx
(iii) If to CIG:
c/o Capital International Global Emerging Markets
Private Equity Fund, L.P.
000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx,
Xxxx, XX 00000-0000
Facsimile No.: x0 (000) 000-0000
Attention: Xxx Xxxxx
with a copy to:
Capital International Limited
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000-0000
Attention: Xxx Xxxxxx
and to:
Capital Research International Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxxx Xxxxxxx
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxxxx
(iv) If to Cavendish Nominees Limited:
c/o International Private Equity Services
00-00 Xxxxxxxx Xxxx
XX Xxx 000
Xx. Xxxxx Xxxx XX0 0XX, Guernsey
Facsimile No.: x00 (0) 0000 000 000
Attention: Xxx. Xxxxxx Xxxxxx
with a copy to:
Baring Vostok Capital Partners
0 Xxxxxxx Xxxxxx
Xxxxx Xxxxx XX, Xxxxx 000
000000 Xxxxxx
Xxxxxx
Facsimile No.: x0 (000) 000 0000
Attention: Xxxxxxx Xxxxxx
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxxxx
(v) If to First NIS Regional Fund SICAV:
x/x Xxxx xx Xxxxxxx Xxxxxxxxxx
00 Xxx Xxxxxx X-0000, Xxxxxxxxxx
Facsimile No.: x00 0 00 00 00 000
Attention: Xxxxxxxxx Tourney
with a copy to:
Baring Vostok Capital Partners
0 Xxxxxxx Xxxxxx
Xxxxx Xxxxx XX, Xxxxx 000
000000 Xxxxxx
Xxxxxx
Facsimile No.: x0 (000) 000 0000
Attention: Xxxxxxx Xxxxxx
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxxxx
(vi) If to the Company:
Golden Telecom, Inc.
0000 XxxXxxxxx Xxxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
X.X.X.
Facsimile No.: x0 (000) 000-0000
Attention: General Counsel
with a copy to:
Representation Office of Golden TeleServices, Inc.
1 Xxxxxxxxxxxxxx Xxxxxx,
0xx Xxxxx
000000 Xxxxxx
Xxxxxx
Facsimile No.: x0 (000) 000-0000
Attention: General Counsel
(vii) If to RTK:
OAO Rostelecom Moscow,
xx. 0xx Xxxxxxxxx-Xxxxxxxx, 00
000000 Xxxxxx
Xxxxxx
Facsimile No.: x0 (000) 000-0000
Attention: Xxxxxxxxxx Xxxxxx Ivanovich
with a copy to:
Xxxxxxxx Chance CIS Limited,
xx. Xxxxxxxx-Xxxxxxxxxxxx 00/00
000000 Xxxxxx,
Xxxxxxx Federation
Facsimile No.: x0 (000) 000-0000
Attention: Xxxxxx Xxxxxxx
11.9 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, without
giving effect to any conflicts of laws principles thereof which would
result in the application of the laws of another jurisdiction.
11.10 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 then in force (the
"UNCITRAL 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) The place of the arbitration shall be New York, New York,
United States of America.
(iii) Where there is only one claimant party and one
respondent party, each shall appoint one arbitrator in accordance
with the UNCITRAL Rules, and the two arbitrators so appointed shall
appoint the third (and presiding) arbitrator in accordance with the
UNCITRAL Rules within thirty (30) days from the appointment of the
second arbitrator. In the event of an inability to agree on a third
arbitrator, the appointing authority shall be the International
Court of Arbitration of the International Chamber of Commerce,
acting in accordance with such rules as it may adopt for this
purpose. Where there is more than one claimant party, or more than
one respondent party, all claimants and/or all respondents shall
attempt to agree on their respective appointment(s). In the event
that all claimants and all respondents cannot agree upon their
respective appointment(s) within thirty (30) Business Days of the
date of the notice of arbitration, all appointments shall be made
by the Chairman of the International Court of Arbitration of the
International Chamber of Commerce.
(iv) The English language shall be used as the written and
spoken language for the arbitration and all matters connected to
the arbitration.
(v) The arbitrators shall have the power to grant any remedy
or relief that they deem just and equitable and that is in
accordance with the terms of this Agreement, including specific
performance, and including, but not limited to, injunctive relief,
whether interim or final, and any such relief and any interim,
provisional or conservatory measure ordered by the arbitrators may
be specifically enforced by any court of competent jurisdiction.
Each Party retains the right to seek interim, provisional or
conservatory measures from judicial authorities and any such
request shall not be deemed incompatible with the agreement to
arbitrate or a waiver of the right to arbitrate.
(vi) The award of the arbitrators shall be final and binding
on the Parties.
(vii) The award 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 competent
jurisdiction.
(b) Except for arbitration proceedings pursuant to Section
11.10(a), no action, lawsuit or other proceeding (other than the
enforcement of an arbitration decision, an action to compel arbitration or
an application for injunctive relief or other interim, provisional or
conservatory measures in connection with the arbitration) shall be brought
by or between the Parties in connection with any matter arising out of or
in connection with this Agreement.
(c) Each Party other than CIG irrevocably appoints CT Corporation
System, located on the date hereof at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXX, and CIG irrevocably appoints Capital
International Research, Inc., located on the date hereof at 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10111, USA, Attn: General Counsel,
as its true and lawful agent and attorney to accept and acknowledge service
of any and all process against it in any judicial action, suit or
proceeding permitted by this Section 10.10, 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 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 on the date of such service to the other
Parties by facsimile as specified in Section 11.8. Each Party 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 connection with any such
action, suit or proceeding, and agrees that any such action, suit or
proceeding may be brought in such court, provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this
Section 11.10 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 any other Party in any other jurisdiction in a manner not
inconsistent with this Section 11.10.
(d) Each Party hereby represents and acknowledges that it is acting
solely in its commercial capacity in executing and delivering this
Agreement and in performing its obligations hereunder, and each such Party
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 and any other document or
instrument contemplated hereby, 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, and enforceability of judicial or
arbitral awards.
11.11 COUNTERPARTS; LANGUAGE
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement is being executed in
both an English language version and a Russian language version. In the
event of any discrepancy between the English language version and the
Russian language version of this Agreement or any disagreement among the
Parties as to the meaning or interpretation of any part of this Agreement,
the English language version of this Agreement shall prevail.
IN WITNESS WHEREOF, the Parties have executed this Registration
Rights Agreement as of the date first written above.
The Shareholders
----------------
ALFA TELECOM LIMITED
By
-------------------------------
Name:
Title:
XXX TELENOR EAST INVEST AS
By
-------------------------------
Kjell Xxxxxx Xxxxxxx
Attorney-in-Fact
OPEN JOINT STOCK COMPANY
ROSTELECOM
By
-------------------------------
Name:
Title:
CAPITAL INTERNATIONAL GLOBAL
EMERGING MARKETS PRIVATE EQUITY
FUND, L.P.
By
-------------------------------
Name:
Title:
FIRST NIS REGIONAL FUND SICAV
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
CAVENDISH NOMINEES LIMITED
By
-------------------------------
Name:
Title:
The Company
-----------
GOLDEN TELECOM, INC.
By
-------------------------------
Xxxxxxxxx Xxxxxxxxxx
President and Chief Executive
Officer
