EXHIBIT F
GUARANTY
THIS GUARANTY (as may be amended from time to time, this
"Guaranty"), dated as of [________], 2003 is made by and among Telenor ASA, a
company incorporated under the laws of Norway (the "Guarantor"), Golden Telecom,
Inc., a corporation duly organized and validly existing under the laws of the
State of Delaware, United States of America ("GTI"), and SFMT-CIS, Inc., a
corporation duly organized and validly existing under the laws of the State of
Delaware, United States of America ("SFMT" and, together with Guarantor and GTI,
each, individually, a "Party" and, collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, Xxx Telenor East Invest AS, a Norwegian corporation
("Telenor"), GTI and SFMT have entered into a Share Exchange Agreement dated as
of August 19, 2003 (as the same may be amended, modified or supplemented from
time to time, the "Share Exchange Agreement"), which contemplates the execution
and delivery of this Guaranty;
WHEREAS, the Guarantor owns indirectly all of the issued and
outstanding capital stock of Telenor;
WHEREAS, SFMT is a wholly-owned subsidiary of GTI; and
WHEREAS, the Guarantor will derive direct and indirect benefit
from the acquisition by SFMT of all of the outstanding shares of capital stock
in OAO Comincom, a Russian open joint stock company ("Comincom") owned by
Telenor, from Telenor as provided for in the Share Exchange Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
other benefits accruing to the Guarantor, and in order to induce GTI and SFMT to
enter into the Share Exchange Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
1. Definitions.
Unless otherwise defined herein, any capitalized term used
herein shall have the meaning ascribed to such term in the Share Exchange
Agreement. In addition, the following terms shall have the following meanings:
"Buyer Group" means collectively GTI and SFMT;
"Comincom" has the meaning assigned to such term in the fourth
recital hereto;
"Guaranteed Obligations" has the meaning assigned to such term
in Section 2.1;
"Guaranty Period" has the meaning assigned to such term in
Section 2.3; and
"Transfer Agreements" means the Share Exchange Agreement and
any certificate, instrument or agreement executed or issued by Telenor or its
representatives in connection therewith.
2. Guaranty.
2.1 Guaranty Unconditional. Subject to the limitations set
forth in Section 2.2(a) and (b), the Guarantor hereby unconditionally and
irrevocably guarantees, as a primary obligor and not merely as a surety, to each
member of the Buyer Group and its successors and permitted assigns, the prompt
and complete payment when due, and the prompt and complete performance when
owing, of each and every covenant, agreement and other obligation of Telenor
under the Transfer Agreements that is not paid or performed when due or owing
(collectively referred to as the "Guaranteed Obligations").
2.2 Guaranty is Limited.
(a) Notwithstanding anything herein to the contrary, the
aggregate liability of the Guarantor hereunder shall not exceed (i) the
Notional Price; plus (ii) all costs and expenses incurred by each
member of the Buyer Group in connection with entering into the Transfer
Agreements and consummating the transactions contemplated thereby, as
well as enforcing any of their rights and remedies hereunder and
thereunder, including, without limitation, fees and expenses of all
outside advisors and any amounts expended in pursuing any claim as a
result of, or arising out of, a breach of a representation or a
warranty by Telenor or non-compliance with, or nonperformance by
Telenor, of obligations or covenants or other terms under any of the
Transfer Agreements.
(b) It is understood and agreed that, without prejudice
to Sections 2.5 and 8 below, nothing herein shall require the Guarantor
to make any payment or perform any obligation under any circumstances
in which Telenor would not be required, pursuant to the terms of the
relevant Transfer Agreement, to perform such obligation or make such
payment by reason of a breach or misrepresentation by any other party
to such Transfer Agreement or the failure of any condition to such
performance or payment to be satisfied.
(c) The Guarantor agrees that the Guaranteed Obligations
may at any time and from time to time exceed the amount of its
liability hereunder without impairing this Guaranty or affecting the
rights and remedies of the Buyer Group hereunder.
2.3 Limitation on Duration of Guaranty.
(a) Subject to the provisions of Section 2.3(b) hereof,
the obligations of the Guarantor with respect to any liability for
breach of representations and warranties made (or repeated) under the
Transfer Agreements shall expire on the last day of the eighteen (18)
month period following the Closing Date, except that, with respect to
any liability for breach of representations and warranties made (or
repeated) under Sections 3.5 and 3.19 of the Share Exchange Agreement,
the obligations of the Guarantor hereunder shall expire on the second
anniversary of the Closing Date (each such period referred to as a
"Guaranty Period"), unless reinstated pursuant to the terms of Section
2.7 hereof.
(b) Notwithstanding the foregoing Section 2.3(a), and
without prejudice to Section 2.7, in the event that at the end of the
relevant Guaranty Period an Action is pending or threatened with
respect to the breach of a representation or warranty or covenant of
Telenor made or repeated or required to be made or repeated under any
Transfer Agreement then, without the need for any action on the part of
the Guarantor or any member of the Buyer Group, the Guaranty Period
shall be automatically extended until such time as such Action is
dismissed with prejudice or is fully and finally resolved and, subject
to the provisions of Section 2.2, any and all amounts arising as a
result thereof constituting the Guaranteed Obligations hereunder shall
have been satisfied in full.
2.4 No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by Telenor, until all amounts due to any member of the Buyer Group for
or on account of the Guaranteed Obligations as limited under Section 2.2(a) and
(b) are paid in full, the Guarantor shall not (a) be entitled to be subrogated
to any of the rights of any member of the Buyer Group against Telenor or any
other guarantor or in any collateral security or guaranty or right of offset
held by any member of the Buyer Group with respect to the payment or performance
of any Guaranteed Obligation, or (b) seek any reimbursement or contribution from
Telenor or any other guarantor in respect of any payment, set-off or application
of funds made by the Guarantor hereunder.
2.5 No Effect on Guaranty. The obligations of the Guarantor
under this Guaranty shall not be altered, limited, impaired or otherwise
affected by:
(a) any rescission of any demand for payment or performance of
any of the Guaranteed Obligations or any failure by any member of the Buyer
Group to make any such demand on Telenor, the Guarantor or any other guarantor
or to collect any payments from Telenor or any other guarantor or any release of
the Guarantor, Telenor or any other guarantor;
(b) any renewal, extension, modification, amendment,
acceleration, compromise, waiver, indulgence, rescission, discharge, surrender
or release, in whole or in part, of the Transfer Agreements or the Guaranteed
Obligations or any other instrument or agreement evidencing, relating to,
securing or guaranteeing any of the Guaranteed Obligations, or the liability of
any Person to any of the foregoing or for any part thereof or any collateral
security therefor or guaranty thereof;
(c) the validity, regularity or enforceability of any of the
Guaranteed Obligations or of any of the Transfer Agreements or any other
instrument or agreement evidencing, relating to, securing or guaranteeing any of
the Guaranteed Obligations at any time or from time to time held by any member
of the Buyer Group or the Guarantor;
(d) any failure by any member of the Buyer Group to protect,
secure, perfect, record, insure or enforce any security document or collateral
subject thereto at any time constituting security for the Guaranteed
Obligations;
(e) any act or omission of any member of the Buyer Group
relating in any way to the Guaranteed Obligations or to Telenor or the
Guarantor, including, without limitation, any failure to bring an action against
any Person liable on the Guaranteed
Obligations, or any Person liable on any guaranty of the Guaranteed Obligations,
or any Person which has furnished security for the Guaranteed Obligations, or to
apply any funds of any such Person held by any member of the Buyer Group, or to
resort to any collateral or collateral of any other guarantor;
(f) any defense, set-off or counterclaim which may at any time
be available to or be asserted by or on behalf of any member of the Buyer Group
against Telenor or the Guarantor or any circumstance which constitutes, or might
be construed to constitute, an equitable or legal discharge of Telenor or the
Guarantor or any other guarantor for any of the Guaranteed Obligations, in
bankruptcy or in any other instance;
(g) any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement
of Telenor or the Guarantor or any other guarantor or any defense which Telenor
or the Guarantor or any other guarantor may have by reason of the order, decree
or decision of any court or administrative body resulting from any such
proceeding; or
(h) any change, whether direct or indirect, in the Guarantor's
relationship to Telenor, including, without limitation, any such change by
reason of any merger or any sale, transfer, issuance, or other disposition of
any stock of Telenor, the Guarantor or any other Person.
2.6 Continuing Guaranty. This Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment and performance when
due, and not of collection only, and the obligations of the Guarantor hereunder
shall not be conditioned or contingent upon the pursuit by any member of the
Buyer Group at any time of any right or remedy against Telenor or against any
other Person which may be or become liable in respect of all or any part of the
Guaranteed Obligations or against any collateral security or guaranty therefor.
This Guaranty shall remain in full force and effect until the Guaranteed
Obligations, subject always to the limitation contained in Section 2.2(a) and
(b), shall have been satisfied by payment or performance in full or released by
the Buyer Group.
2.7 Reinstatement of Guaranty. This Guaranty shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of the Guaranteed Obligations is avoided, rescinded or must
otherwise be restored or returned by any member of the Buyer Group or their
representatives or to any other guarantor for any reason including as a result
of any insolvency, bankruptcy or reorganization proceeding with respect to
Telenor or the Guarantor, all as though such payment had not been made.
3. Representations and Warranties of the Guarantor. The
Guarantor hereby represents and warrants to each member of the Buyer Group, as
follows:
(a) The Guarantor is a corporation duly organized and
validly existing under the laws of Norway and has full power and
authority to execute and deliver this Guaranty, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby;
(b) The execution, delivery and performance by the
Guarantor of this Guaranty have been duly authorized by all necessary
corporate action on the part of the Guarantor. This Guaranty has been
duly and validly executed and delivered by
the Guarantor. This Guaranty constitutes the valid and binding
obligations of the Guarantor, enforceable in accordance with its terms
subject to the qualification, however, that the enforcement of the
rights and remedies created hereby is subject to bankruptcy and other
similar laws of general application relating to or affecting the rights
and remedies of creditors and by general equitable principles (whether
applied by a court of law or equity), and that the availability of the
remedy of specific enforcement or of injunctive relief is subject to
the discretion of the court before which any proceeding therefor may be
brought; and
(c) The execution, delivery and performance of this
Guaranty by the Guarantor does not and will not (i) conflict with, or
result in a breach of any provision of, the Guarantor's charter
(vedtekter), or (ii) conflict with, result in a breach of any provision
of, or constitute a default under, any agreement or instrument by which
the Guarantor or any of its assets or properties is bound, or (iii)
conflict with, or result in a breach or violation of any law,
regulation, decree or order by which the Guarantor or any of its assets
or properties is bound, or (iv) require any Authorization of any
Governmental Entity; except, in the case of clauses (ii), (iii) and
(iv) above, where such conflicts, breaches, defaults or violations or
such failure to obtain Authorizations would not have a material adverse
effect on the Guarantor's ability to perform its obligations hereunder.
4. Expenses and Indemnity. Subject to the limitations set
forth in Section 2.2(a) and (b), the Guarantor shall indemnify each member of
the Buyer Group and their respective officers, directors, employees,
representatives and agents from and against any and all damages, losses,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of or resulting from, or incurred
in connection with, this Guaranty and the enforcement hereof.
5. Election and Exercise of Remedies. Each and every right,
power and remedy herein given to the members of the Buyer Group or any of them,
or otherwise existing shall be cumulative and not exclusive, and be in addition
to all other rights, powers and remedies now or hereafter granted or otherwise
existing and may be exercised by the Buyer Group in its discretion, and any such
exercise shall be binding upon Telenor or the Guarantor without need for any
additional action on the part of any of them. Each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
any member of the Buyer Group.
6. Effect of Delay or Omission to Pursue Remedy. No single or
partial waiver by any member of the Buyer Group of any right, power or remedy,
or delay or omission by any member of the Buyer Group in the exercise of any
right, power or remedy which it may have shall impair any such right, power or
remedy or operate as a waiver thereof or of any other right, power or remedy
then or thereafter existing. Any waiver given by any member of the Buyer Group
of any right, power or remedy in any one instance shall only be effective in
that specific instance and only for the purpose for which given, and will not be
construed as a waiver of any right, power or remedy on any future occasion.
7. Guarantor's Waivers.
(a) The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by any member of the
Buyer Group upon this Guaranty or acceptance of this Guaranty, and the
Guaranteed Obligations, and any of them, shall conclusively be deemed
to have been created, contracted, incurred, renewed, extended, amended
or waived in reliance upon this Guaranty, and all dealings between the
Guarantor and the members of the Buyer Group shall likewise be
conclusively presumed to have been had or consummated in reliance upon
this Guaranty. The Guarantor waives presentment, demand, notice, and
protest of all instruments included in or evidencing any of the
Guaranteed Obligations and all other demands and notices in connection
with the delivery, acceptance, performance, default or enforcement of
any such instrument or this Guaranty.
(b) The Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require any member
of the Buyer Group to: (i) proceed against Telenor or any other
guarantor of the Guaranteed Obligations or any other Person; (ii)
proceed against or exhaust any security held from Telenor or the
Guarantor, any other guarantor of the Guaranteed Obligations or any
other Person; or (iii) pursue any other remedy in the power of any
member of the Buyer Group whatsoever. The Guarantor waives any defense
based on or arising out of any defense of Telenor, any other guarantor
of the Guaranteed Obligations or any other Person other than payment in
full of the Guaranteed Obligations, including, without limitation, any
defense based on or arising out of the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of Telenor other than payment
in full of the Guaranteed Obligations in cash. Any member of the Buyer
Group may, at its election, foreclose upon any security held by it by
one or more judicial or non-judicial sales, whether or not every aspect
of any such sale is commercially reasonable, or exercise any other
right or remedy any such member of the Buyer Group may have against
Telenor or any other Person, or any security, without affecting or
impairing in any way the liability of the Guarantor hereunder except to
the extent that the Guaranteed Obligations have been paid in full in
cash. The Guarantor waives any defense arising out of any such election
by any member of the Buyer Group.
(c) The Guarantor assumes all responsibility for being
and keeping itself informed of the financial condition and assets of
Telenor, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which the Guarantor assumes and incurs hereunder,
and agrees that no member of the Buyer Group shall have any duty to
advise the Guarantor of information known to them regarding such
circumstances or risks.
8. Amendment. This Guaranty may not be modified, amended,
terminated or revoked, in whole or in part, except by an agreement in writing
signed by each member of the Buyer Group and the Guarantor. No waiver of any
term, covenant or provision of this Guaranty, or consent given hereunder, shall
be effective unless given in writing by each member of the Buyer Group.
9. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been
sufficiently given to any party hereto if personally delivered or if sent by
telecopy, or by registered or certified mail, return receipt requested, or by
recognized courier service, postage or other charges prepaid, addressed as
follows:
(a) IF TO THE GUARANTOR:
Telenor ASA
30 Snaroyveien
N-1331 Fornebu
Norway
Attn: General Counsel
Telephone: x00 00 000000
Facsimile: x00 000 00000
with a copy to:
Coudert Brothers LLP
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxx X'Xxxxxxxx
Telephone: x00 00 0000 0000
Facsimile: x00 00 0000 0000
(b) IF TO ANY MEMBER OF THE BUYER GROUP:
Golden Telecom, Inc.
0000 XxxXxxxxx Xxxxxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx X.X. 00000, X.X.X.
Attention: General Counsel
Telephone: x0 (000) 000 0000
Facsimile: x0 (000) 000 0000
with a copy to:
Representation Office of Golden TeleServices, Inc.
1 Kozhevnichesky Proezd
2nd Floor
Moscow 115114
Russian Federation
Facsimile No.: x0 (000) 000 0000
Attention: General Counsel
and to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxx X. Xxxxx
Facsimile: x0 (000) 000-0000
or to such other address as may be specified from time to time by the Guarantor
or GTI in a notice to the other party given as herein provided. Such notice or
communication will be deemed to have been given as of the date so personally
delivered, telecopied, or when received if sent by mail or by courier.
10. Successors and Assigns. This Guaranty shall be binding
upon and shall inure to the benefit of the Guarantor and each member of the
Buyer Group and their respective successors and permitted assigns.
Notwithstanding the foregoing, the Guarantor shall not have the right to assign
its rights or obligations hereunder (whether by operation of law or otherwise)
without the prior written consent of each member of the Buyer Group. Each member
of the Buyer Group may, in its sole discretion, assign this Guaranty to a
permitted assignee of its rights under the Share Exchange Agreement.
11. Payments. All payments made by the Guarantor hereunder
shall be made without setoff, counterclaim or other defense.
12. Section Headings. The section headings used in this
Guaranty are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York, United States
of America.
14. Dispute Resolution. Any dispute, controversy or claim
arising out of or relating to this Guaranty, or the breach, termination or
invalidity hereof, shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules then in force (the "Rules") by a panel of three (3)
arbitrators in accordance with the following terms and conditions:
(a) In the event of any conflict between the Rules and
the provisions of this Guaranty, the provisions of this Guaranty shall
prevail.
(b) The place of the arbitration shall be New York, New
York, United States of America.
(c) Each member of the Buyer Group acting jointly (or
either of them acting individually if only one of them is a party to
any dispute), on the one hand, and the Guarantor, on the other hand,
shall appoint one arbitrator in accordance with the Rules, and the two
arbitrators so appointed shall appoint the third (and presiding)
arbitrator in accordance with the Rules within thirty (30) days from
the appointment of the second arbitrator. In the event of an inability
to agree on a third arbitrator, the appointing authority shall be the
International Court of Arbitration of the International Chamber of
Commerce, acting in accordance with such rules as it may adopt for this
purpose.
(d) The English language shall be used as the written and
spoken language for the arbitration and all matters connected to the
arbitration.
(e) 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 Guaranty, 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.
(f) The award of the arbitrators shall be final and
binding on the Parties.
(g) 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.
(h) Except for arbitration proceedings pursuant to this
Section 14, no action, lawsuit or other proceeding (other than the
enforcement of an arbitration decision, an action to compel arbitration
or an application for interim, provisional or conservatory measures in
connection with the arbitration) shall be brought by or between the
Parties in connection with any matter arising out of or in connection
with this Guaranty.
15. Appointment of Agents of Service of Process; Consent to
Jurisdiction. 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 14, with the same effect as if such Party were a resident
of the State of New York and had been lawfully served with such process in such
jurisdiction, and waives all claims of error by reason of such service, provided
that the Party effecting such service shall also deliver a copy thereof on the
date of such service to the other Parties by facsimile as specified in Section
9. 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 15 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 14 and this Section 15.
16. Waiver of Sovereign Immunity. Each Party hereby represents
and acknowledges that it is acting solely in its commercial capacity in
executing and delivering this Guaranty and in performing its obligations
hereunder, and each such Party hereby irrevocably waives with respect to all
disputes, claims, controversies and all other matters of any nature whatsoever
that may arise under or in connection with this Guaranty and any other document
or instrument contemplated hereby, all immunity it may otherwise have as a
sovereign, quasi-sovereign or state-owned entity (or similar entity) from any
and all proceedings (whether legal, equitable, arbitral, administrative or
otherwise), attachment of assets, and enforceability of judicial or arbitral
awards.
17. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction and the remaining provisions hereof
shall be liberally construed in favor of the members of the Buyer Group or any
of them in order to carry out the provisions hereof. The invalidity or
unenforceability of any provision of this Guaranty in any jurisdiction shall not
affect the validity or enforceability of any such provision in any other
jurisdiction.
IN WITNESS WHEREOF, this Guaranty has been validly executed and
delivered by the duly authorized representatives of the Parties as of the
Execution Date.
GOLDEN TELECOM, INC. TELENOR ASA
By:____________________________ By: __________________________
Name: Xxxxxxxxx Xxxxxxxxxx Name: Xxx Fredrik Baksaas
Title: President and Chief Title: President and Chief
Executive Officer Executive Officer
SFMT-CIS, INC.
By: ____________________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and General Counsel