TERMINATION AGREEMENT dated as of May 30, 2001 between and among OPEN JOINT
STOCK COMPANY "VIMPEL-COMMUNICATIONS", an open joint stock company organized and
existing under the laws of the Russian Federation (the "Issuer"), VIMPELCOM
FINANCE B.V., a company organized and existing under the laws of the Netherlands
("VimpelCom Finance"), VIMPELCOM B.V., a company organized and existing under
the laws of the Netherlands ("VIP BV"), VC LIMITED, a company organized and
existing under the laws of the British Virgin Islands ("VC Limited"), TELENOR
EAST INVEST AS, a corporation organized and existing under the laws of Norway
("Telenor"), TELENOR COMMUNICATION AS, a corporation organized and existing
under the laws of Norway (formerly known as Telenor AS) ("Telenor
Communication"), XX. XXXXXX XXXXXXXXXX XXXXX, a Russian citizen ("Xx. Xxxxx"),
"BEE LINE" NON-PROFIT FUND (known in Russian and formerly known in English as
THE FUND FOR NON-COMMERCIAL PROGRAMS "BEE LINE"), a non-commercial organization
organized and existing under the laws of the Russian Federation (the "Bee Line
Fund"), and GLAVSOTKOM LLC, a limited liability company organized and existing
under the laws of the Russian Federation ("Glavsotkom" and, together with the
Issuer, VimpelCom Finance, VIP BV, VC Limited, Telenor, Telenor Communication,
Xx. Xxxxx and the Bee Line Fund, collectively, the "Parties" and each,
individually, a "Party").
WHEREAS, Telenor and the Issuer are party to the Primary Agreement dated as
of December 1, 1998 and the Share Purchase Agreement dated as of May 28, 1999
(collectively, the "Existing Primary Agreement");
WHEREAS, Telenor, Xx. Xxxxx, Glavsotkom and the Bee Line Fund are party to
the Shareholders Agreement dated as of December 1, 1998 (the "Existing
Shareholders Agreement");
WHEREAS, Telenor, Xx. Xxxxx, Glavsotkom, the Bee Line Fund and the Issuer
are party to the Registration Rights Agreement dated as of December 1, 1998 (the
"Existing Registration Rights Agreement");
WHEREAS, Telenor Communication and the Issuer are party to the Guarantee
Agreement dated as of December 1, 1998 (the "Existing Guarantee Agreement");
WHEREAS, (i) Telenor and the Issuer are party to the Working Capital Bridge
Facility dated as of June 23, 2000 (the "Working Capital Bridge Facility") and
the Guarantee Agreement dated as of June 23, 2000 (the "VimpelCom Finance
Guarantee"); (ii) Telenor, VimpelCom Finance, VIP BV and VC Limited are party to
the Primary Agreement (Financing Vehicles) dated as of June 23, 2000 (the
"VimpelCom Finance Primary Agreement"); (iii) Telenor and VC Limited are party
to the Purchase Agreement dated as of July 28, 2000 (the "VC Limited Purchase
Agreement"); (iv) pursuant to the Working Capital Bridge Facility, the Issuer
delivered to Telenor a Disbursement Application dated as of June 27, 2000 and a
Disbursement Application dated July 5, 2000 (collectively, the "Disbursement
Applications"); and (v) Telenor, the Issuer, VC Limited, VimpelCom Finance and
VIP BV are party to the Notice of Mandatory Exercise of Option Requirement and
Waiver dated as of June 23, 2000 (the "Notice of Exercise" and, together with
the Working Capital Bridge Facility, the VimpelCom Finance Guarantee, the
VimpelCom Finance Primary Agreement, the VC
Limited Purchase Agreement, and the Disbursement Applications, collectively, the
"Existing Financing Agreements"); and
WHEREAS, Telenor and VimpelCom intend to enter into a Primary Agreement
dated as of the date hereof (the "New Primary Agreement") between and among
Telenor, the Issuer and Eco Telecom Limited, a company organized and existing
under the laws of Gibraltar ("Eco Telecom"), and certain other Principal
Agreements, and wish to provide for the waiver of certain of the Parties'
respective rights and obligations under the Existing Agreements (as hereinafter
defined) and for the termination of the Existing Agreements upon the
consummation of the transactions contemplated by the New Primary Agreement;
NOW, THEREFORE, to induce each Party to enter into and consummate the
transactions contemplated by the Principal Agreements to which it is a party and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
ARTICLE I DEFINITIONS AND INTERPRETATION
1.01 Definitions
-----------
Unless otherwise defined herein, terms defined in the New Primary Agreement
are used herein as therein defined. In addition, as used herein, the following
terms shall have the following meanings:
"Agreement" shall mean this Termination Agreement.
"Bee Line Fund" shall have the meaning specified in the preamble hereto.
"Disbursement Applications" shall have the meaning specified in the fifth
recital hereto.
"Xx. Xxxxx" shall have the meaning specified in the preamble hereto.
"Eco Telecom" shall have the meaning specified in the sixth recital hereto.
"Existing Agreements" shall mean, collectively, the Existing Guarantee
Agreement, the Existing Primary Agreement, the Existing Registration Rights
Agreement, the Existing Shareholders Agreement and the Existing Financing
Agreements.
"Existing Financing Agreements" shall have the meaning specified in the
fifth recital hereto.
"Existing Guarantee Agreement" shall have the meaning specified in the
fourth recital hereto.
"Existing Primary Agreement" shall have the meaning specified in the first
recital hereto.
2
"Existing Registration Rights Agreement" shall have the meaning specified
in the third recital hereto.
"Existing Shareholders Agreement" shall have the meaning specified in the
second recital hereto.
"Glavsotkom" shall have the meaning specified in the preamble hereto.
"Issuer" shall have the meaning specified in the preamble hereto.
"New Primary Agreement" shall mean the Primary Agreement dated as of the
date hereof between and among the Issuer, Telenor and Eco Telecom.
"New Registration Rights Agreement" shall mean the Registration Rights
Agreement dated as of the date hereof between and among the Issuer, Telenor and
Eco Telecom.
"New Shareholders Agreement" shall mean the Shareholders Agreement dated as
of the date hereof between Telenor and Eco Telecom.
"Party" and "Parties" shall have the meanings specified in the preamble
hereto.
"Surety Agreement" shall mean the Surety Agreement dated as of the date
hereof between Eco Telecom and Xx. Xxxxx.
"Telenor" shall have the meaning specified in the preamble hereto.
"Telenor Communication" shall have the meaning specified in the preamble
hereto.
"UNCITRAL Rules" shall have the meaning specified in Section 5.10(a).
1.02 Interpretation
--------------
Unless the context of this Agreement otherwise requires, the following
rules of interpretation shall apply to this Agreement:
(a) the singular shall include the plural, and the plural shall include
the singular;
(b) words of any gender shall include the other gender;
(c) the words "hereof', "herein", "hereby", "hereto" and similar words
refer to this entire Agreement and not to any particular Section or any other
subdivision of this Agreement;
(d) a reference to any "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;
3
(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.
ARTICLE II REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants that on and as of the date hereof:
(a) (i) If not a natural Person, such Party has all necessary corporate
power to enter into this Agreement, and this Agreement has been duly authorized
by all necessary corporate action on the part of such Party, (ii) this Agreement
constitutes the legal, valid and binding obligation of such Party, enforceable
against it in accordance with its terms, (iii) such Party's execution, delivery
and performance of this Agreement will not violate or conflict with any
agreement to which such Party is a party or which may be binding on such Party
and (iv) such Party has received all consents and approvals which may be
required for such Party to execute, deliver and perform its obligations under
this Agreement.
(b) Such Party has not sold, assigned, transferred or pledged any of its
rights or delegated any of its obligations under any of the Existing Agreements
to which it is a party.
ARTICLE III WAIVERS
3.01 Existing Primary Agreement
--------------------------
Subject to Section 3.06, solely for the purpose of permitting Telenor and
the Issuer to execute, deliver and perform their respective obligations under
the New Primary Agreement and the other Principal Agreements to which each is a
party, Telenor and the Issuer hereby waive all of their respective rights under
and the obligations of the other party to the Existing Primary Agreement, other
than their respective rights and obligations arising under Article X, Section
11.04 and Article XIII of the Existing Primary Agreement.
3.02 Existing Shareholders Agreement
-------------------------------
(a) Subject to Section 3.06, solely for the purpose of permitting Telenor
to execute, deliver and perform its obligations under the New Shareholders
Agreement and other Principal Agreements to which it is a party, Telenor, Xx.
Xxxxx, Glavsotkom and the Bee Line Fund hereby waive all of their respective
rights under and the obligations of each other party to the Existing
Shareholders Agreement.
(b) Subject to Section 3.06, solely for the purpose of permitting each of
Xx. Xxxxx, Glavsotkom and the Bee Line Fund to execute, deliver and perform his
and its obligations under (i) the Zimin Principal Agreements to which he or it
is a party, as the case may be, and (ii) the share purchase agreements between
the Bee Line Fund and Codan Trust Company
4
Limited, between Codan Trust Company Limited and Overture and between Xx. Xxxxx
and Overture, each to ensure that Overture will own at least such number of
shares of Common Stock or Preferred Stock as are required to allow it to fulfill
its obligations under the Zimin Principal Agreements to which it is a party,
Telenor, Xx. Xxxxx, Glavsotkom and the Bee Line Fund hereby waive all of their
respective rights under and the obligations of each other party to the Existing
Shareholders Agreement.
3.03 Existing Registration Rights Agreement
--------------------------------------
(a) Subject to Section 3.06, solely for the purpose of permitting Telenor
and the Issuer to execute, deliver and perform their respective obligations
under the New Registration Rights Agreement and the other Principal Agreements
to which each is a party, Telenor, the Issuer, Xx. Xxxxx, Glavsotkom and the Bee
Line Fund hereby waive all of their respective rights under and the obligations
of each other party to the Existing Registration Rights Agreement.
(b) Subject to Section 3.06, solely for the purpose of permitting each of
Xx. Xxxxx, Glavsotkom and the Bee Line Fund to execute, deliver and perform his
and its obligations under (i) the Zimin Principal Agreements to which he or it
is a party, as the case may be, and (ii) the share purchase agreements between
the Bee Line Fund and Codan Trust Company Limited, between Codan Trust Company
Limited and Overture and between Xx. Xxxxx and Overture, each to ensure that
Overture will own at least such number of shares of Common Stock or Preferred
Stock as are required to allow it to fulfill its obligations under the Zimin
Principal Agreements to which it is a party, Telenor, the Issuer, Xx. Xxxxx,
Glavsotkom and the Bee Line Fund hereby waive all of their respective rights
under and the obligations of each other party to the Existing Registration
Rights Agreement.
3.04 Existing Guarantee Agreement
----------------------------
Subject to Section 3.06, solely for the purpose of permitting Telenor and
the Issuer to execute, deliver and perform their respective obligations under
the New Primary Agreement and the other Principal Agreements to which each is a
party, Telenor Communication and the Issuer hereby waive all of their respective
rights under and the obligations of the other party to the Existing Guarantee
Agreement.
3.05 Existing Financing Agreements
-----------------------------
Subject to Section 3.06, solely for the purpose of permitting Telenor and
the Issuer to execute, deliver and perform their respective obligations under
the New Primary Agreement and the other Principal Agreements to which each is a
party, Telenor, the Issuer, VimpelCom Finance, VIP BV and VC Limited hereby
waive all of their respective rights under and the obligations of each other
party to the Existing Financing Agreements.
3.06 Effectiveness of Waivers
------------------------
The waivers specified in this Article III shall take effect on the date
hereof and remain in effect until the earlier of:
(a) the termination of the Existing Agreements in accordance with Article
IV; and
5
(b) the termination of the New Primary Agreement, the New Shareholders
Agreement, the New Registration Rights Agreement and the other Principal
Agreements in accordance with their respective terms.
ARTICLE IV TERMINATION OF EXISTING AGREEMENTS
(a) Subject to clauses (b) and (c) of this Article IV, upon the occurrence
of the Closing, each of the Existing Agreements, including all rights and
obligations thereunder, shall be terminated and of no further force or effect,
and, with effect from the occurrence of the Closing, each Party which is a party
to an Existing Agreement hereby irrevocably releases and discharges each other
party to such Existing Agreement from any and all obligations and liabilities
thereunder.
(b) If the Closing does not occur, the Existing Agreements shall remain in
full force and effect, and, except for the waivers set forth in Article III,
none of the rights, obligations or liabilities of the parties thereto shall be
affected by this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, the rights
and obligations of Telenor and the Issuer under Section 8.01 and Section 8.06 of
the Working Capital Bridge Facility, together with any claim accruing thereunder
on the date of this Agreement, shall survive the termination of the Working
Capital Bridge Facility; provided, however, that Telenor's rights and the
Issuer's obligations under Section 8.01 and Section 8.06 of the Working Capital
Bridge Facility, together with any claim accruing thereunder on the date of this
Agreement, shall be limited pursuant to Article X and Article XI of the New
Primary Agreement; provided that, for the avoidance of doubt, Telenor and the
Issuer acknowledge that the US Dollar limitation specified in Section 11.03(b)
of the New Primary Agreement is an aggregate limitation with respect to all
claims under the New Primary Agreement and the Working Capital Bridge Facility.
ARTICLE V MISCELLANEOUS
5.01 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.
5.02 Entire Agreement
----------------
This Agreement supersedes all other prior discussions and agreements among
the Parties with respect to the subject matter hereof, and contains the sole
and entire agreement among the parties with respect to the subject matter
hereof.
6
5.03 No Waiver
---------
No failure on the part of any Party to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.
5.04 Binding Agreement; No Third Party Beneficiaries
-----------------------------------------------
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 its respective successors or permitted assigns, and it is not the intention
of the Parties to confer third party beneficiary rights upon any other Person.
5.05 Assignment
----------
No Party may assign any of its rights under this Agreement without the
prior written consent of each other Party.
5.06 Expenses
--------
Each Party shall pay its own expenses and costs incidental to its execution
and delivery of this Agreement.
5.07 Notice
------
All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by facsimile or by hand in writing and
transmitted by facsimile or courier and delivered to the "Address for Notices''
for any Party specified in the Existing Agreement(s) to which such Party is a
party. Except as otherwise provided in any Existing Agreement, all such
communications shall be deemed to have been duly given and shall be effective
when transmitted by facsimile, personally delivered or, in the case of any
notice delivered by courier, upon receipt, in each case, given or addressed as
aforesaid.
5.08 Counterparts
------------
This Agreement may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
5.09 Amendment
---------
This Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each Party.
7
5.10 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 Geneva, Switzerland.
(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 of 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
appointments(s) within thirty (30) Business Days of the date of the notice of
arbitration, all appointments shall be made by 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 5.10(a), no
action, lawsuit or other proceeding (other than the enforcement of an
arbitration decision, an action to compel arbitration or an application for
interim or provisional 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.
8
(c) Each Party irrevocably appoints CT Corporation System, located on the
date hereof at 000 Xxxxxx Xxxxxx, 13th Floor, New York, New York 10011, USA,
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 Section 5.10(b), 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 each other Party by facsimile as specified in
Section 5.07. 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 5.10 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 Section 5.10(b).
(e) Each Party hereby represents and acknowledges that it is acting solely
in its commercial capacity in executing and delivering this Agreement and each
of the other Principal Agreements to which it is a party and in performing its
obligations hereunder and thereunder, and 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 or any of the other Principal Agreements and any other document or
instrument contemplated hereby or thereby, all immunity it may otherwise have as
a sovereign, quasi-sovereign or state-owned entity (or similar entity) from any
and all proceedings (whether legal, equitable, arbitral, administrative or
otherwise), attachment of assets, and enforceability of judicial or arbitral
awards.
5.11 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.
5.12 Invalid Provisions
------------------
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any recent or future Law, and if the rights or obligations
of any Party under this Agreement
9
will not be materially and adversely affected thereby, (a) such provision will
be fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
10
IN WITNESS WHEREOF, this Termination Agreement has been duly executed and
delivered by each Party as of the day and year first above written.
OPEN JOINT STOCK COMPANY
"VIMPEL-COMMUNICATIONS"
By /s/ Xx Xxxxxx
---------------------------------------------
Name: Xx Xxxxxx
Title: Chief Executive Officer and General
Director
By /s/ Xxxxxxxx Bychenkov
---------------------------------------------
Name: Xxxxxxxx Bychenkov
Title: Chief Accountant
VIMPELCOM FINANCE B.V.
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Person
VIMPELCOM B.V.
By /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Person
VC LIMITED
By /s/ Xxxxx Shmatova
---------------------------------------------
Name: Xxxxx Shmatova
Title: Authorized Person
11
TELENOR EAST INVEST AS
By /s/ Tron Xxxxx
---------------------------------------------
Name: Tron Xxxxx
Title: Attorney-in-Fact
TELENOR COMMUNICATION AS
By /s/ Tron Xxxxx
---------------------------------------------
Name: Tron Xxxxx
Title: Attorney-in-Fact
/s/ Xx. Xxxxxx Xxxxxxxxxx Xxxxx
------------------------------------------------
XX. XXXXXX XXXXXXXXXX XXXXX
"BEE LINE" NON-PROFIT FUND
By /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
By /s/ Xxxxxxxx Bychenkov
---------------------------------------------
Name: Xxxxxxxx Bychenkov
Title: Chief Accountant
GLAVSOTKOM LLC
By /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:
By /s/ Xxxxxxxx Bychenkov
---------------------------------------------
Name: Xxxxxxxx Bychenkov
Title: Chief Accountant
12
