EXHIBIT D
Conformed Copy
GUARANTEE AGREEMENT (this "Agreement") dated as of December 1, 1998
between TELENOR AS, a corporation organized and existing under the laws of
Norway (the "Guarantor"), and OPEN JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS",
an open joint stock company organized and existing under the laws of the Russian
Federation (the "Issuer").
WITNESSETH
WHEREAS, Telenor East Invest AS, a corporation organized and existing
under the laws of Norway (the "Purchaser") and the Issuer are parties to a
Primary Agreement dated as of December 1, 1998 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Primary Agreement"),
pursuant to which the Issuer has agreed to issue and the Purchaser has agreed to
purchase 8,902,201 shares of the Issuer's common stock, in each case, on the
terms and subject to the conditions of the Primary Agreement; and
WHEREAS, to induce the Issuer to enter into and perform the Primary
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor has agreed (to the
extent hereinafter provided) to procure to secure the performance of the
Purchaser's obligations under the other Principal Agreements to which it is a
party;
NOW, THEREFORE the parties hereto agree as follows:
Section 1 Definitions
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Unless otherwise defined herein, terms defined in the Primary Agreement
are used herein as defined therein.
Section 2 The Guarantee
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2.01 Guarantee
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Subject to the limitation set forth in Section 2.02 hereof, the
Guarantor hereby procures to secure to the Issuer the performance of all of the
obligations of the Purchaser under the Primary Agreement and the other Principal
Agreements to which the Purchaser is a Party (other than the obligation of the
Purchaser to pay the Purchase Price pursuant to Article II of the Primary
Agreement), in each case, strictly in accordance with the terms thereof.
2.02 Limitation
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Notwithstanding the foregoing provisions of this Section 2, the
aggregate amount for which the Guarantor shall be liable under this Agreement,
if any, shall not exceed an amount equal to the Initial Purchase Price (as
defined in the Primary Agreement).
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Section 3 Undertaking of Guarantor
------------------------
3.01 Transfers
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The Guarantor hereby covenants and agrees not to transfer (by merger
or otherwise), sell or otherwise dispose of any shares of capital stock of the
Purchaser to any Person other than a Controlled Affiliate of the Guarantor
without the prior written consent of the Issuer.
Section 4 Representations and Warranties
------------------------------
The Guarantor represents and warrants to the Issuer that, as of the date
hereof:
4.01 Organization; Ability to Consummate Transactions
------------------------------------------------
The Guarantor is a corporation duly organized and validly existing under
the Laws of the Kingdom of Norway. The Guarantor has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
4.02 Authority
---------
The execution and delivery by the Guarantor of this Agreement, and the
performance by the Guarantor of its obligations hereunder, have been duly and
validly authorized by authorized signatories of the Guarantor, no other
corporate action on the part of the Guarantor or its stockholder being
necessary. This Agreement has been duly and validly executed and delivered by
the Guarantor and constitutes the legal, valid and binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with their terms.
4.03 No Conflicts
------------
The execution, delivery and performance by the Guarantor of this
Agreement will not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the charter (vedtekter) of the Guarantor; or
(b) to the Knowledge of the Guarantor, conflict with or result in a
violation or breach of any term or provision of any Norwegian Law or Order
applicable to the Guarantor or any of its material Assets and Properties.
4.04 Governmental Approvals and Filings
----------------------------------
To the Knowledge of the Guarantor, no consent, approval or action of,
filing with or notice to any Norwegian Governmental or Regulatory Authority on
the part of the Guarantor is required in connection with the execution, delivery
and performance of this Agreement.
4.05 Legal Proceedings
-----------------
There are no Actions or Proceedings pending or, to the knowledge of the
Guarantor, threatened, against the Guarantor or any of its Assets and Properties
which could reasonably be expected to result in the issuance of an Order
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement.
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4.06 Ownership of the Purchaser
--------------------------
All of the outstanding Equity Interests of the Purchaser are wholly
owned by the Guarantor, free and clear of any Liens (other than Permitted
Liens).
Section 5 Miscellaneous
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5.01 No Waiver
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No failure on the part of the Issuer or any of its agents to exercise,
and no course of dealing with respect to, and no delay in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Issuer or any of its agents of any right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
5.02 Governing Law; Arbitration; Waiver of Sovereign Immunity
----------------------------------------------------------
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of Norway.
(b) 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 in force (the "UNICITRAL 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) Either party to this Agreement may refer a matter to
arbitration by written notice to the other party.
(iii) The place of the arbitration shall be Stockholm, Sweden.
(iv) The claimant party shall appoint one (1) arbitrator and the
respondent party shall appoint one (1) arbitrator, and the two (2) arbitrators
so appointed shall appoint the third arbitrator, in accordance with the UNCITRAL
Rules. In the event of an inability to agree on a third arbitrator, the
appointing authority shall be the Arbitration Institute of the Sweden Chamber of
Commerce, Stockholm.
(v) The English language shall be used as the written and spoken
language for the arbitration and all matters connected with all references to
arbitration.
(vi) The decision of the arbitrators shall be made by majority
vote and shall be in writing.
(vii) The decision of the arbitrators shall be final and binding
on the parties to this Agreement, save in the event of fraud, manifest mistake
or failure by any of the arbitrators to disclose any conflict of interest.
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(viii) The decision 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 jurisdiction.
(c) In the event any dispute is submitted to arbitration pursuant to
Section 5.02(b), the panel of arbitrators may, if it deems such award
appropriate, award a party costs and expenses incurred by such party in
enforcing its rights. Except as so awarded, each party shall bear its own costs
and expenses of enforcing its rights to arbitrate under this Section 5.02.
(d) Except for arbitration proceedings pursuant to Section 5.02(b)
above, no action, lawsuit or other proceeding (other than a proceeding to compel
arbitration or to enforce any arbitration decision) shall be brought by or
between the parties to this Agreement and/or any of their affiliates in
connection with any matter arising out of or in connection with this Agreement.
(e) Telenor hereby represents and warrants 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 Telenor 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, or enforceability of judicial or arbitral
awards.
5.03 Notices
-------
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or sent by courier to the parties at the following
addresses or facsimile numbers:
If to the Guarantor, to:
Telenor AS
Xxxxxxxxxxxxxxxxx 0
0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-000000
Attn: Xxxxx Xxxx
with a copy to:
Advokatene i Telenor
Xxxxxxxxxxxxxxxxx 0
0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-000000
Attn: Xxxxx X. Risung
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If to the Issuer, to:
Vimpel-Communications
10-12, Xxxxxx 0-Xxxxx
000000, Xxxxxx
Xxxxxxx Federation
Facsimile No.: x0000 000-0000
Attn: Xxxxxx Xxxxxxxxxx
General Counsel
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Dukat Place II
7, Ulitsa Gasheka
123056, Moscow
Russian Federation
Facsimile No. x0000-000-0000
Attn: Xxxxxxx X. Xxxxxxxx
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section 5.03, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5.03, be deemed given upon receipt, and (c) if
delivered by courier in the manner described above to the address as provided in
this Section 5.03, be deemed given upon confirmed receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section 5.03). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving written notice specifying such change to the other parties hereto.
5.04 Waivers, etc.
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The terms of this Agreement may be waived, altered or amended only by
an instrument in writing duly executed by the Guarantor and Issuer. Any such
amendment or waiver shall be binding upon the Issuer and the Guarantor.
5.05 Term
----
This Agreement shall take effect on the date hereof and remain in
effect until the date which is one (1) year after the date on which each of the
other Principal Agreements to which the Issuer and the Purchaser are parties has
terminated.
5.06 No Assignment; Binding Effect
------------------------------
Neither this Agreement nor any right, interest or obligation hereunder
may be assigned by either party hereto and any attempt to do so will be void,
except for assignments and transfers in accordance with the terms of this
Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the Guarantor and the Issuer.
5.07 Counterparts
------------
This Agreement may be executed in any number of counterparts, all of
which together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
Agreement to be duly executed as of the day and year first above written.
TELENOR AS,
as Guarantor
By /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Attorney-in-Fact
OPEN JOINT STOCK COMPANY
"VIMPEL-COMMUNICATIONS"
By /s/ X. X. Xxxxx
--------------------------
Name: X. X. Xxxxx
Title: President and Chief
Executive Officer
