EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of September 5, 2002 by and between Golden Telecom, Inc., a Delaware
corporation (the "Company"), and OAO ROSTELECOM, a Russian open joint stock
company ("Investor").
RECITALS
(A) In connection with the transfer by Investor of approximately 21.5%
ownership of OOO EDN Sovintel, a limited liability company duly
registered and existing under the Laws of the Russian Federation, to
SFMT-CIS, Inc., a Delaware corporation, the Company desires to grant to
Investor certain registration rights with respect to an aggregate of
4,024,067 shares of common stock of the Company.
(B) The parties hereto desire to set forth the terms and conditions of the
Company's covenants and agreements in respect of the registration of such
shares with the Securities and Exchange Commission and all applicable
state securities agencies.
(C) In consideration of the premises and the mutual agreements contained
herein, the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Advice" has the meaning set forth in the last paragraph of Section 5
hereof.
"Agents" means any Person authorized to act and who acts on behalf of
Investor with respect to the transactions contemplated by this Agreement.
"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.
"Demand Registration" has the meaning set forth in Section 3(a) hereof.
"Effective Date" means the date on which the shares to be issued to the
Investor under the terms of the Subscription Agreement, are issued to the
Investor.
"Exchange Act" means The Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder as in effect from time to time.
"Person" means an individual, partnership, corporation trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"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 (i) the 4,024,067 shares of Common Stock to
be issued to the Investor under the terms of the Subscription Agreement
and (ii) any securities issued or issuable with respect to 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, until such shares of Common Stock or other
securities are not Restricted Securities as defined in Section 2,
provided, however, that Registrable Securities shall not include any such
securities as may be transferred pursuant to an exemption from the
registration requirements of the Securities Act provided by Rule 144 under
the Securities Act.
"Registration Expenses" has the meaning set forth in Section 6 hereof.
"Registration Statement" means any registration statement of the Company
which covers Registrable Securities pursuant to the provisions of this
Agreement, including (i) the Prospectus, (ii) amendments and supplements
to such Registration Statement, (iii) post-effective amendments, (iv) all
exhibits and all material incorporated by reference in such Registration
Statement and (v) any registration statement pursuant to a Demand
Registration.
"Restricted Securities" means the Registrable Securities upon original
issuance thereof, subject to the provisions of Section 2 hereof.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"SEC" means the Securities and Exchange Commission.
"Subscription Agreement" means the agreement to purchase 4,024,067 shares
of Common Stock of the Company entered into by the Investor and the
Company and dated September 5, 2002.
"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 arrangements with an underwriter.
Unless the context otherwise requires: (i) "or" is not exclusive; and (ii)
words in the singular include the plural and in the plural include the
singular.
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2. SECURITIES SUBJECT TO THIS AGREEMENT
Registrable Securities. The securities entitled to the benefits of this
Agreement are the Registrable Securities but, with respect to any
particular Registrable Security, only so long as such security continues
to be a Restricted Security. A Registrable Security ceases to be a
Restricted Security when (i) it has been effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it, (ii) it has been distributed pursuant to Rules 144
or 144A under the Securities Act (or any similar provision then in force),
(iii) it has otherwise been transferred and a new certificate or other
evidence of ownership for it 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 or (iv) such security may be transferred pursuant to any
other exemption from the registration requirements of the Securities Act
provided under the Securities Act.
3. DEMAND REGISTRATION
(a) Requests for Registration. At any time six months after the
Effective Date (the "Six-Month Lock-Up"), Investor may make a
written request for registration with the SEC under and in
accordance with the provisions of the Securities Act of all or part
of its Registrable Securities (a "Demand Registration"). A request
made pursuant to this Section 3(a) shall specify the number of
Registrable Securities to be registered and the intended methods of
disposition thereof. All such requests shall be delivered to the
Company in accordance with the provisions of Section 9(d) of this
Agreement.
(b) Number of, and Limitations on, Registrations. Investor will be
entitled to request 2 (two) Demand Registrations. The Company will
not be obligated to register any Registrable Securities pursuant to
such a Demand Registration unless there is requested to be included
in such registration at least 1,000,000 shares of Common Stock
(subject to such adjustments as may be necessary by reason of the
occurrence of an event contemplated by clause (ii) of the definition
of Registrable Securities) (unless, at the time of such request,
Investor holds less than 1,000,000 shares of Common Stock, in which
case such request must be for such entire lesser amount).
(c) Expenses. In any registration initiated as a Demand Registration,
the Company will pay all Registration Expenses, whether or not the
Registration Statement has become effective.
(d) 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
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jointly by the Investor and the Company. If Investor disapproves of
the terms and conditions of the underwriting, Investor may elect to
withdraw all its Registrable Securities by written notice to the
Company and the managing underwriter, but for the avoidance of doubt
such demand for registration and subsequent withdrawal shall count
as one of the Investor's Demand Registrations provided for under
Section 3(b).
4. INCIDENTAL REGISTRATION
(a) Request for Registration. After the Six-Month Lock-Up, 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 each such time give
prompt notice in accordance with the provisions of Section 9(d) of
this Agreement to Investor 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
Investor delivered to the Company within 30 days after such notice
shall have been given to Investor (which request shall specify the
Registrable Securities intended to be disposed of by such holder 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 Investor, to the extent requisite to permit the sale of
the Registrable Securities to be so registered; provided, however,
that:
(i) if, at any time after giving such written notice of its
intention to register any 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 Common Stock, the Company
shall, at its election, give written notice of such
determination to Investor, 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(b)); and
(ii) 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
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because the inclusion of Registrable Securities is likely to
adversely impact the purchase price obtained for the Common
Stock proposed to be included in such offering, then the
Company shall promptly advise Investor thereof and may
require, by written notice to Investor 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 Common Stock
in such offering shall share pro-rata in the number 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 Common Stock so
requested to be registered by such holders) until the
completion of the distribution of such Common Stock and any
other securities by such underwriters.
(b) Expenses. In any registration initiated pursuant to this Section 4,
the Company will pay all Registration Expenses, whether or not the
Registration Statement has become effective.
5. REGISTRATION PROCEDURES
Whenever Investor 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 Section 3, use its
reasonable best efforts to prepare and file with the SEC not later
than 60 days after receipt of such request (which 60-day period may
be extended by the Company for up to an additional 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
Investor 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 Investor
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(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 Section 3 or any
amendment thereto or any Prospectus or any supplement thereto
(including such documents incorporated by reference) to which
Investor 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 days before filing, furnish to Investor 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 Investor 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 Investor 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 150 days, or
such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or
withdrawn or such Registrable Securities cease to be Restricted
Securities; 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 Investor thereof set forth in such Registration
Statement or supplement to the Prospectus;
(d) notify Investor and the managing underwriters, if any, promptly, and
(if requested by any such Person) confirm such advice in writing,
(1) 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, (2) of any request by the SEC for
amendments or supplements to the Registration
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Statement or the Prospectus or for additional information, (3) 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, (4) if at any time the representations
and warranties of the Company contemplated by paragraph (o) below
cease to be true and correct, (5) 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
(6) of the happening 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 Investor
and to the managing underwriters;
(g) provide to Investor 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 Investor 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 Investor 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 Investor 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
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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 Investor 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 Investor agrees
to do so;
(j) cooperate with Investor 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 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)(6)
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 each
securities exchange or the Nasdaq National Market on which similar
securities issued by the Company are then listed if requested by
Investor 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 Investor 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 (1) make such representations
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and warranties to Investor 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;
(2) 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
Investor and the underwriters, if any, covering the matters
customary in underwritten primary offerings and such other matters
as may be reasonably requested by Investor and underwriters, if any;
(3) obtain "comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to Investor 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; (4) if an underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and
procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to said Section; and (5) the Company shall
deliver such documents and certificates as may be requested by
Investor and the managing underwriters, if any, to evidence
compliance with clause (1) 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
Investor, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney,
accountant or other agent retained by Investor 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 Investor 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 45 days after the end of any 12-month period (1) 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 (2) beginning with the first month of the Company's
first
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fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 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 Investor to furnish to the Company such
information and documents regarding Investor and the distribution of the
Registrable Securities as the Company may from time to time reasonably
request in writing.
Investor agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of
the kind described in Section 5(d)(6) hereof, Investor will forthwith
discontinue disposition of Registrable Securities until Investor's receipt
of the copies of the supplemented or amended Prospectus contemplated by
Section 5(l) hereof, 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, Investor 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 Investor'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)(6) to and including the date when Investor shall have received the
copies of the supplemented or amended prospectus contemplated by Section
5(l) hereof 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 Investor so requires,
the reasonable
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fees and expenses of any special experts retained by Investor 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
Investor (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.
Investor shall be liable for the cost and expense of the time spent by its
officers, employees and Agents, including Investor's counsel, incurred in
connection with the registration of Registrable Securities owned by it.
7. INDEMNIFICATION
(a) Indemnification by Company. The Company will indemnify and hold harmless,
to the full extent permitted by law, Investor, its officers and directors,
their Agents and each Person who controls Investor (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 Investor, expressly for use therein. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of Investor, Investor's directors and officers, their Agents or
a controlling Person, and shall survive the transfer of such securities by
Investor. 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 Investor of Registrable Securities.
(b) Indemnification by Investor. Investor 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
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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 Investor specifically for inclusion therein. In no
event shall the liability of Investor hereunder be greater in amount than
the dollar amount of the proceeds received by Investor 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.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
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 Section, 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 Section.
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(d) Contribution. 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 the Investor hereunder shall not exceed the dollar
amount of the proceeds received by the Investor upon the sale of the
Registrable Securities giving rise to such contribution obligation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) 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 Investor under this Agreement with respect to
any Registrable Securities may be transferred to any transferee of such
Registrable Securities, including any affiliate of Investor; provided,
however, that (i) Investor 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, (ii) 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 (iii) the
terms of such transfer make clear how the Investor and the transferee
shall utilize the two Demand Registrations provided to the Investor
hereunder.
9. MISCELLANEOUS
(a) Remedies. Investor shall be entitled to exercise all rights provided
herein or granted by law, including recovery of damages, and each
will be entitled
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to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to Investor
in this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained
the written consent of Investor.
(d) 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
given at the time when mailed in any general or branch office of the
postal service, enclosed in a registered or certified postpaid
envelope, or sent by Federal Express or other similar overnight
courier service, 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 Investor:
OAO Rostelecom
Russian Federation, 125047,
Moscow, xx. 0xx Xxxxxxxxx-Xxxxxxxx, 00
Telephone: 0-000-000-0000
Facsimile: 7-095-787-2850
(ii) If to the Company:
Golden Telecom, Inc.
0000 XxxXxxxxx Xxxxxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx X.X. 00000, X.X.X.
Telephone: 0 (000) 000 0000
Facsimile: 0 (000) 000 0000
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(e) Assignment. Neither party shall assign or transfer any of its rights
under this Agreement without the prior written consent of the other
party, except for a transfer in accordance with section 8. If any
transferee of a holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such transferee shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such transferee shall be entitled
to receive the benefits hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
State of New York. Each of the parties hereby consents to the
non-exclusive jurisdiction of the courts of the State of New York,
and to service of process by regular mail.
(g) Entire Agreement. This Agreement, together with any other agreements
between the parties, constitutes the entire understanding between
the parties and supersedes all proposals, commitments, writings,
negotiations and understandings, oral and written, and all other
communications between the parties relating to the subject matter of
this Agreement.
(h) Counterparts and Effectiveness. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same document,
and shall become effective on the Effective Date and shall have no
force and effect prior thereto. This Agreement is executed in
Russian and in English, with 1 (one) copy in each language for each
party hereto. In the event of any discrepancies between the English
and Russian versions, the English shall prevail.
(i) Severability. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the
validity of the remaining portions or provisions of this Agreement
shall not be affected thereby, and the illegal or unenforceable
portions of this Agreement shall be and hereby are redrafted to
conform with applicable law, while leaving the remaining portions of
this Agreement intact.
(j) Force Majeure. No party shall be deemed to have breached this
Agreement or be held liable for any failure or delay in the
performance of all or any portion of its obligations under this
Agreement if prevented from doing so by a cause or causes beyond its
control. Without limiting the generality of the foregoing, such
causes include acts of God or the public enemy, fires, floods,
storms, earthquakes, riots, strikes, lock-outs, wars and
war-operations, restraints of government power or communication line
failure or other circumstances beyond such party's control, or by
reason of the
15
judgment, ruling or order of any court or agency of competent
jurisdiction or change of law or regulation subsequent to the
execution of this Agreement.
(k) Successors and Assigns. Subject to the provisions of Section 9(e),
this Agreement is solely for the benefit of the parties and their
respective successors and assigns. Nothing herein shall be construed
to provide any rights to any other entity or individual.
(l) Headings. Section headings are for convenience only and do not
control or affect the meaning or interpretation of any terms or
provisions of this Agreement.
(m) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall
be entitled to recover reasonable attorneys fees in addition to any
other available remedy.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OAO ROSTELECOM
By:____________________________
Name: Xxxxxx Xxxxxxxxxx
Title: General Director
By:____________________________
Name: Xxxxxxxxx Xxxxxx
Title: Chief Accountant
GOLDEN TELECOM, INC.
By:____________________________
Name: Xxxxxxxxx Xxxxxxxxxx
Title: President and Chief
Executive Officer
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