Contract
EXHIBIT 99.1
CONFORMED COPY
CONFORMED COPY
FIRST AMENDMENT TO SETTLEMENT AGREEMENT dated as of January 12, 2010 (this “Amendment”)
between and among Crown Finance Foundation, a foundation organized under the laws of Xxxxxxxxxxxx,
CTF Holdings Limited, a company organized under the laws of Gibraltar, Altimo Holdings &
Investments Ltd., a company organized under the laws of the British Virgin Islands, Eco Telecom
Limited, a company organized under the laws of Gibraltar, Rightmarch Limited, a company organized
under the laws of Cyprus, Alpren Limited, a company organized under the laws of Cyprus, Hardlake
Limited, a company organized under the laws of Cyprus, and Storm LLC, a limited liability company
organized under the laws of Ukraine (collectively, the “Alfa Parties” and each, individually, an
"Alfa Party”), and Telenor Mobile Communications AS, a company organized under the laws of Norway,
Telenor East Invest AS, a company organized under the laws of Norway, and Telenor Consult AS, a
company organized under the laws of Norway (collectively, the “Telenor Parties” and each,
individually, a “Telenor Party” and, together with the Alfa Parties, collectively, the “Parties”
and, each, individually, a “Party”).
WITNESSETH
WHEREAS, the Parties have entered into the Settlement Agreement dated as of October 4, 2009
(the “Agreement”); and
WHEREAS, following receipt of responses to submissions filed with certain courts pursuant to
the Agreement, the Parties have determined that it is advisable to amend certain provisions of the
Agreement to reflect such responses;
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree, in accordance with Section 10 of the Agreement, as follows:
1. Telenor Mobile Communications AS v. Storm LLC, et al., 07-4974-CV (L); 08-6184-CV
(CON); 08-6188-CV (CON) (the “Appeal”).
(a) Notwithstanding the Escrow Agent’s filing with the
United States Court of Appeals for the
Second Circuit (the “Court of Appeals”) on October 5, 2009 of a stipulation in the form of
Exhibit D-1 to the Agreement (the “Appeal Stipulation”) requesting the withdrawal from
active consideration of appeals by certain of the Alfa Parties, the Court of Appeals rejected the
Appeal Stipulation and issued decisions affirming the decisions of the United States District Court
for the Southern District of New York (the “District Court”) that were the subject of such appeals.
The Parties hereby acknowledge and agree that they will not receive a file-stamped copy of the
Appeal Stipulation and do not anticipate any further action occurring with respect to the Appeal
prior to the Closing or the earlier termination of the Agreement in accordance with its terms.
(b) Exhibit G and Exhibit J to the
Agreement and all references to Exhibit
G and Exhibit J therein are hereby deleted.
2. Telenor East Invest AS v. Farimex Products, Inc., et al., 08-CV-5623 (PKC) (the
“Farimex Case”).
(a) Notwithstanding the Escrow Agent’s delivery on
October 5, 2009 of a letter to the District
Court in the form of Exhibit B-2 to the Agreement (the “Farimex Case Letter”) requesting a
stay of proceedings in the Farimex Case, the District Court rejected the request contained in the
Farimex Case Letter. The Parties then filed with the District Court a stipulation attached hereto
as Exhibit B-3, which shall become new Exhibit B-3 to the Agreement. The Parties
hereby acknowledge and agree that they do not anticipate any further action occurring with respect
to the Farimex Case prior to the Closing or the earlier termination of the Agreement in accordance
with its terms.
(b) Exhibit E-2 and Exhibit H-3 to the
Agreement and all references to
Exhibit E-2 and Exhibit H-3 therein are hereby deleted in their entirety.
3. Telenor Mobile Communications AS v. Storm LLC, et al., 07-CV-06929 (GEL) (the “Storm
Case”).
(a) Notwithstanding the Escrow Agent’s delivery on
October 5, 2009 of a letter to the District
Court in the form of Exhibit B-1 to the Agreement (the “Storm Case Letter”) requesting a
stay of proceedings in the Storm Case, the District Court rejected the request contained in the
Storm Case Letter and, in a telephone call made by the District Court to counsel for the Telenor
Parties, stated that the Storm Case was no longer an active case and that the District Court did
not intend to take any further action in relation to the Storm Case. The Parties hereby
acknowledge and agree that they will not receive a file-stamped copy of the Storm Case Letter and
do not anticipate any further action occurring with respect to the Storm Case prior to the Closing
or the earlier termination of the Agreement in accordance with its terms.
(b) Exhibit E-1 and Exhibit H-2 to the
Agreement and all references to
Exhibit E-1 and Exhibit H-2 are hereby deleted in their entirety.
4. Telenor East Invest AS v. Altimo Holdings & Investments Limited, et al., 07-CV-4829
(DC) (the “Securities Case”).
(a) Notwithstanding the Escrow Agent’s delivery on
October 5, 2009 of a letter to the District
Court in the form of Exhibit B-1 to the Agreement (the “Securities Case Letter”) requesting
a stay of proceedings in the Securities Case, the District Court rejected the request contained in
the Securities Case Letter. The Parties then filed with the District Court a stipulation in
substantially in the form attached hereto as Exhibit B-4, which shall become new
Exhibit B-4 to the Agreement. The Parties hereby acknowledge and agree that they will not
receive a file-stamped copy of the Securities Case Letter and do not anticipate any further action
occurring with respect to the Securities Case prior to the Closing or the earlier termination of
the Agreement in accordance with its terms.
(b) Exhibit H-1 to the Agreement and all references
to Exhibit H-1 therein are
hereby deleted in their entirety.
5. Settlement Escrow Agreement
The Parties agree that (a) the Escrow Agent shall not incur any
liability under the Settlement
Escrow Agreement in respect of the United States Court of Appeals for the Second Circuit and the
United States District Court for the Southern District of New York’s rejection of any stipulation
or letter filed with such Court by the Escrow Agent prior to the date of this Amendment, (b) the
Escrow Agent shall be an express third party beneficiary of this Amendment and (c) all references
to the Agreement in the Settlement Escrow Agreement shall be references to the Agreement as amended
by this Amendment.
6. Governing Law.
This Amendment, and any dispute, controversy or claim arising out of,
relating to or in
connection with this Amendment, or for the breach or alleged breach thereof, whether in contract,
in tort or otherwise, shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to any conflicts of laws or other principles thereof that would
result in the application of the laws of another jurisdiction.
7. Full Force and Effect.
The Agreement, as amended by this Amendment, remains in full force and
effect notwithstanding
the execution by the Parties of this Amendment.
8. Defined Terms.
All capitalized terms used herein without definition shall have the
meanings assigned to such
terms in the Agreement.
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9. Incorporation by Reference.
The provisions of Sections 8 through 17 (inclusive) of the
Agreement shall be incorporated
herein by reference, mutatis mutandis, as if set forth in full herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have executed this First Amendment to Settlement Agreement as
of date first above written.
| The Alfa Parties Crown Finance Foundation |
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| By | /s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Power of Attorney dated 29 September 2009 | ||||
| CTF Holdings Limited |
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| By | /s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Director | ||||
| Altimo Holdings & Investments Ltd. |
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| By | /s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Director | ||||
| Eco Telecom Limited |
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| By | /s/ Xxxxx Xxxx | |||
| Name: Xxxxx Xxxx | ||||
| Title: Director | ||||
| Rightmarch Limited |
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| By | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Attorney | ||||
| Alpren Limited |
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| By | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Attorney | ||||
| Hardlake Limited |
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| By | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Attorney | ||||
| Storm LLC |
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| By | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Representative under Power of Attorney | ||||
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| The Telenor Parties Telenor East Invest AS |
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| By | /s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx | ||||
| Title: Authorized Signatory | ||||
| Telenor Mobile Communications AS |
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| By | /s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx | ||||
| Title: Authorized Signatory | ||||
| Telenor Consult AS |
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| By | /s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx | ||||
| Title: Authorized Signatory | ||||
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Exhibit B-3
[REQUEST FOR STIPULATION AND ORDER DISMISSING ACTION
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Farimex Products, Inc. (09-CV-5623-PKC)]
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Farimex Products, Inc. (09-CV-5623-PKC)]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SOUTHERN DISTRICT OF NEW YORK
| 00 Xxx. 0000 (XXX) | |||||
| Plaintiff, | ECF Case | ||||
-against- |
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FARIMEX PRODUCTS, INC.,
|
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| Defendant. | |||||
STIPULATION AND ORDER DISMISSING ACTION
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned attorneys of record for all
parties herein, that the above-entitled case (the “Action”) be, and it hereby is, dismissed without
prejudice and without costs to any party as against any other, pursuant to Federal Rule of Civil
Procedure 41(a), provided, however, that either party has the right to restore the
Action to the Court’s docket in its status as of the date of this stipulation, including the rights
of the parties to pursue all the claims and remedies sought in the Action, if the Closing of the
Transaction (as such terms are defined in the parties’ joint letter to the Court dated October 5,
2009) does not occur within one year of the date of this stipulation.
IT IS FURTHER STIPULATED AND AGREED that, upon the Closing, a stipulation pursuant to Fed. R.
Civ. P. 41(a), in the form previously agreed by the parties, providing for dismissal of the Action
with prejudice and without costs, will be filed with the Court.
| XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP |
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| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
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Exhibit B-3 to Settlement Agreement
| Attorneys for Plaintiff Telenor East Invest AS |
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| XXXXXXXX KILL & OLICK, P.C. |
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| By: | ||||
| Xxxxxxx X. Xxxx | ||||
| 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
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| Attorneys for Defendant Farimex Products, Inc. |
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SO ORDERED:
Exhibit B-3 to Settlement Agreement
Exhibit B-4
[REQUEST FOR STIPULATION AND ORDER DISMISSING ACTION
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Altimo Holdings & Investments Ltd. et al. (07-CV-4829-DC)]
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Altimo Holdings & Investments Ltd. et al. (07-CV-4829-DC)]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SOUTHERN DISTRICT OF NEW YORK
Plaintiff, |
STIPULATION DISMISSING PROCEEDINGS |
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-against- |
07-CV-4829 (DC)(DCF) ECF CASE |
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ALTIMO HOLDINGS & INVESTMENTS LIMITED, ECO TELECOM LIMITED, CTF HOLDINGS LIMITED, CROWN FINANCE FOUNDATION and RIGHTMARCH LIMITED, |
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Defendants. |
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STIPULATION AND ORDER DISMISSING ACTION
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE
WITHOUT PREJUDICE AND WITH RIGHT TO RESTORE
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned attorneys of record for all
parties herein, that the above-entitled case (the “Action”) be, and it hereby is, dismissed without
prejudice and without costs to any party as against any other, pursuant to Federal Rule of Civil
Procedure 41(a), provided, however, that either party has the right to restore the
Action to the Court’s docket in its status as of the date of this stipulation, including the rights
of the parties to pursue all the claims and remedies sought in the Action, if the Closing of the
Transaction (as such terms are defined in the parties’ joint letter to the Court dated October 5,
2009) does not occur within one year of the date of this stipulation.
IT IS FURTHER STIPULATED AND AGREED that, upon the Closing, a stipulation pursuant to Fed. R.
Civ. P. 41(a), in the form previously agreed by the parties, providing for dismissal of the Action
with prejudice and without costs, will be filed with the Court.
Exhibit B-4 to Settlement Agreement
| XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP |
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| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
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| Attorneys for Plaintiff Telenor East Invest AS CRAVATH, SWAINE & XXXXX LLP |
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| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| Worldwide Plaza 000 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
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| Attorneys for Defendants Altimo Holdings & Investments Limited, Crown Finance Foundation and Rightmarch Limited LOVELLS LLP |
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| By: | ||||
| Xxxxxx X. Xxxxxx | ||||
| 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
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| Attorneys for Defendants Eco Telecom Limited and CTF Holdings Limited |
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SO ORDERED:
Xxx. Xxxxx Xxxx, U.S.D.J.
Exhibit B-4 to Settlement Agreement
