EXHIBIT G
[Execution Version]
SUPPLEMENTAL SHARE TRANSFER AGREEMENT
THIS SUPPLEMENTAL SHARE TRANSFER AGREEMENT (this "Supplemental
Agreement"), dated as of August 19, 2003 (the "Execution Date"), is made by and
among SFMT-RUSNET, INC., a corporation duly organized and validly existing under
the laws of the State of Delaware, USA ("Buyer's Designee"), ▇▇. ▇▇▇▇▇▇▇▇▇ V.
KOZHANOV, a citizen of the Russian Federation ("Seller's Designee"), and ▇▇▇
TELENOR EAST INVEST AS, a corporation duly organized and validly existing under
the laws of Norway ("▇▇▇ Telenor"). (▇▇▇ Telenor, Buyer's Designee and Seller's
Designee are referred to collectively as the "Parties", and each individually as
a "Party").
W I T N E S S E T H :
WHEREAS:
(A) Golden Telecom, Inc., a Delaware corporation ("GTI"), and
SFMT-CIS, Inc., a Delaware corporation ("SFMT-CIS"), each affiliated with the
Buyer's Designee, have entered into that certain Share Exchange Agreement, dated
of even date herewith (the "Share Exchange Agreement"), with ▇▇▇ Telenor
pursuant to which all of the issued and outstanding shares of capital stock of
OAO Comincom, an open joint stock company duly registered and validly existing
under the laws of the Russian Federation (the "Company"), except for the five
(5) shares of the Company's common stock owned as of the date hereof by the
Seller's Designee (the "Supplemental Shares"), are to be acquired by and
transferred to SFMT-CIS;
(B) On June 17, 2003, Seller's Designee entered into a Share
Purchase Agreement with ▇▇▇ Telenor in respect of all of the outstanding shares
of capital stock owned by the Seller's Designee (the "Kozhanov Purchase
Agreement"), a copy of which is attached hereto as Exhibit A;
(C) In furtherance of the transactions envisioned by the Share
Exchange Agreement, the Seller's Designee and ▇▇▇ Telenor entered into a letter
agreement, dated June 17, 2003 (the "Kozhanov Letter Agreement", and together
with the Kozhanov Purchase Agreement, the "Kozhanov Agreements"), a copy of
which is attached hereto as Exhibit B, pursuant to which it was agreed that the
Seller's Designee would retain legal ownership of the Supplemental Shares and
continue to remain as the duly registered owner thereof in the shareholders'
register of the Company until such time as the Seller's Designee has executed a
share transfer order in favor of GTI or an affiliated entity thereof for the
transfer of the Supplemental Shares pursuant to the instructions of ▇▇▇ Telenor;
(D) Under Article 10.2 of the Russian Federal Law No. 208-FZ "On
Joint Stock Companies", the Company must have at least two shareholders as it
directly owns, inter alia, 100% of the issued and outstanding shares in OAO
Combellga, a Russian closed joint stock company, and in order to comply with
this requirement of Russian law, the parties to the Share Exchange Agreement,
together with the Buyer's Designee and the Seller's Designee, have agreed that
in furtherance of the transactions contemplated by the Share Exchange Agreement,
the Supplemental Shares shall be transferred to the Buyer's Designee in
accordance with this Supplemental Agreement;
(E) ▇▇▇ Telenor, in consideration of the shares of GTI's common
stock being delivered to ▇▇▇ Telenor pursuant to the Share Exchange Agreement,
wishes to instruct the Seller's Designee that prior to the Closing (as defined
in the Share Exchange Agreement), the Seller's Designee shall execute a share
transfer order for the Supplemental Shares in favor of Buyer's Designee such
that, as of the Closing, the Buyer's Designee shall be duly registered as the
sole and exclusive legal, record and beneficial owner of the Supplemental
Shares; and
(F) It is one of the conditions precedent to the Closing under the
Share Exchange Agreement that this Supplemental Agreement be entered into by all
of the Parties;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements hereinafter contained, the
Parties agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized
terms shall have the meanings ascribed to such terms in the Share Exchange
Agreement.
2. Instructions to Seller's Designee. (a) As required by the
terms of the Kozhanov Letter Agreement and in consideration of the GTI Shares to
be issued to ▇▇▇ Telenor pursuant to the terms of the Share Exchange Agreement,
▇▇▇ Telenor hereby instructs the Seller's Designee to execute and deliver a
share transfer order (the "Supplemental Share Transfer Order") to the
Shareholders' Registrar ordering the re-registration of the Supplemental Shares
into the name of the Buyer's Designee in the Shareholders' Register. The
Supplemental Share Transfer Order shall be delivered to the Shareholder's
Registrar simultaneously with the delivery of the Share Transfer Order to be
executed by ▇▇▇ Telenor and delivered to the Shareholder's Registrar in
accordance with the terms of the Share Exchange Agreement with the effect that,
as of the Closing, the Buyer's Designee shall be duly registered as the sole and
exclusive legal, record and beneficial owner of the Supplemental Shares.
(b) In furtherance of the obligations of the Seller's Designee
under the Kozhanov Agreements and in exchange for the consideration paid
thereunder, the Seller's Designee hereby covenants and agrees with the other
Parties to take all steps necessary to deliver the Supplemental Share Transfer
Order in accordance with the terms hereof, which Supplemental Share Transfer
Order shall be similar in form and substance to the Share Transfer Order to be
delivered by ▇▇▇ Telenor pursuant to the Share Exchange Agreement, and to
execute and deliver (or cause to be delivered) all documents and instruments in
form reasonably satisfactory to Buyer's Designee as may be required under
applicable Law, including the Laws of the Russian Federation, or reasonably
necessary in the opinion of Buyer's Designee, in order for the transfer from the
Seller's Designee to the Buyer's Designee of full and exclusive ownership rights
to the Supplemental Shares to occur on the Closing Date.
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3. Acknowledgement of Payment, No Further Claims and Assignment
of Rights.
(a) The Seller's Designee covenants and agrees with the Buyer's
Designee that (i) pursuant to the Kozhanov Purchase Agreement and subject to the
terms thereof, he has received payment in full for the Supplemental Shares in
accordance with the Laws of the Russian Federation and has no further claim for
payment of any amount, or receipt of any other consideration, from the Buyer's
Designee, and (ii) in connection with, or subsequent to, the transfer of the
Supplemental Shares to the Buyer's Designee, the Buyer's Designee shall not be
obligated to make any payment or take any action to or for the benefit of the
Seller's Designee (contingent or otherwise) relating to the Supplemental Shares
(other than as expressly provided for under this Supplemental Agreement).
(b) ▇▇▇ Telenor covenants and agrees that (i) it is issuing the
instruction to the Seller's Designee set forth in Section 2 above in furtherance
of the transactions contemplated by the Share Exchange Agreement, (ii)
concurrently with the transfer of legal ownership to the Supplemental Shares
from the Seller's Designee to the Buyer's Designee, and re-registration thereof
in the name of the Buyer's Designee in the Shareholders' Register of the
Company, as contemplated hereby and by the Share Exchange Agreement, ▇▇▇ Telenor
shall be deemed to have assigned, transferred and conveyed the entirety of its
rights, title and interest in and to the Supplemental Shares to the Buyer's
Designee, and (iii) the Buyer's Designee is, and shall remain, under no
obligation to make any payment or take any action to or for the benefit of ▇▇▇
Telenor (contingent or otherwise) relating to the Supplemental Shares (other
than as expressly provided for under this Supplemental Agreement).
4. Representations and Warranties of Seller's Designee. The
Seller's Designee hereby represents and warrants to the Buyer's Designee as
follows:
(a) Authorization. Seller's Designee is a citizen of the Russian
Federation with full mental and legal capacity and authority to execute and
deliver this Supplemental Agreement, to perform his obligations hereunder and to
consummate the transactions contemplated hereby. Seller's Designee affirms that
he is entering into this Supplemental Agreement of his own volition. The spouse
of the Seller's Designee has fully consented to the maximum extent permissible
under the Laws of the Russian Federation to the transactions contemplated by the
Kozhanov Agreements, and any such consent is currently valid and in full force
and effect and has not been withdrawn or otherwise repudiated. As promptly as
practicable after the date hereof, but in any event prior to the transfer of the
Supplemental Shares, the Seller's Designee agrees to cause his spouse to deliver
such additional written consent as may be requested by the Buyer's Designee in
respect of the transactions contemplated hereby.
(b) Due Authorization; Binding Obligation. This Supplemental
Agreement has been duly and validly executed and delivered by the Seller's
Designee. This Supplemental Agreement constitutes the valid and binding
obligations of Seller's Designee, enforceable against Seller's Designee in
accordance with its terms.
(c) Non-Contravention. The execution, delivery and performance of
this Supplemental Agreement, and the consummation of the transactions
contemplated hereby,
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do not and will not, with or without the giving of notice or the lapse of time,
or both, violate, conflict with, result in the breach of or constitute a default
under, or give rise to any right of termination under any of the terms,
conditions or provisions of (1) the Charter or other charter documents or
by-laws or other constitutive documents of the Company, or (2) any covenant,
agreement or understanding to which Seller's Designee or the Company is a party
or by which the property or assets of Seller's Designee or the Company are
bound, or (3) any Law in respect of which the Seller's Designee or the Company
is subject, other than, in the case of clauses (2) and (3) above, any such items
that, individually or in the aggregate, would not have a material adverse effect
on the ability of Seller's Designee to consummate the transactions contemplated
hereby.
(d) Ownership of the Supplemental Shares. As of the Execution
Date, Seller's Designee is the legal and record owner of the Supplemental Shares
and shall remain the legal and record owner of the Supplemental Shares until the
consummation of the transfer of the Supplemental Shares on or prior to the
Closing Date (as determined in accordance with the terms and conditions of the
Share Exchange Agreement). Seller's Designee is duly reflected as the registered
owner of the Supplemental Shares in the Shareholders' Register and such
ownership is free and clear of any Liens. Upon transfer of the Supplemental
Shares on or prior to the Closing Date, Seller's Designee will convey to Buyer's
Designee all of its rights, title and interest in and to the Supplemental
Shares, and as of the Closing Date, the Buyer's Designee shall be the sole and
exclusive owner of the Supplemental Shares free and clear of any Liens other
than those Liens or rights created or caused by Buyer's Designee.
(e) Legal Proceedings. (i) There are no Actions pending or, to the
best knowledge of Seller's Designee, threatened against, relating to or
affecting Seller's Designee and/or the Supplemental Shares which may result in
the issuance of an order restraining, enjoining or otherwise prohibiting or
making illegal the transfer of the Supplemental Shares to Buyer's Designee as
contemplated by this Supplemental Agreement, or any of the other transactions
contemplated by the Share Exchange Agreement or any of the other Related
Agreements; and
(ii) To the best knowledge of Seller's Designee, no facts or
circumstances exist that may give rise to any Action that would be required to
be disclosed pursuant to paragraph (i) above.
5. Representations and Warranties of Buyer's Designee. The
Buyer's Designee hereby represents and warrants to the Seller's Designee as
follows:
(a) Authorization. Buyer's Designee is a corporation duly
organized and validly existing under the Laws of the State of Delaware, with
full power and authority to execute and deliver this Supplemental Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby.
(b) Due Authorization; Binding Obligation. The execution, delivery
and performance by Buyer's Designee of this Supplemental Agreement, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of Buyer's Designee. This
Supplemental Agreement has been duly and validly executed and delivered by
Buyer's Designee. This Supplemental
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Agreement constitutes the valid and binding obligation of Buyer's Designee,
enforceable against Buyer's Designee 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 principles of equity (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.
(c) Non-Contravention. The execution, delivery and performance of
this Supplemental Agreement, and the consummation of the transactions
contemplated hereby, do not and will not, with or without the giving of notice
or the lapse of time, or both, violate, conflict with, result in the breach of
or constitute a default under, or give rise to any right of termination under
any of the terms, conditions or provisions of (1) the charter documents or
by-laws or other constitutive documents of the Buyer's Designee, or (2) any
covenant, agreement or understanding to which Buyer's Designee is a party or by
which the property or assets of Buyer's Designee are bound, or (3) any Law in
respect of which the Buyer's Designee is subject, other than, in the case of
clauses (2) and (3) above, any such items that, individually or in the
aggregate, would not have a material adverse effect on the ability of Buyer's
Designee to consummate the transactions contemplated hereby.
(d) Legal Proceedings. (i) There are no Actions pending or, to the
best knowledge of Buyer's Designee, threatened against, relating to or affecting
Buyer's Designee which may result in the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the transfer of the
Supplemental Shares to Buyer's Designee as contemplated by this Supplemental
Agreement, or any of the other transactions contemplated by the Share Exchange
Agreement or any of the other Related Agreements; and
(ii) To the best knowledge of Buyer's Designee, no facts or
circumstances exist that may give rise to any Action that would be required to
be disclosed pursuant to paragraph (i) above.
6. Representations and Warranties of Telenor. The representations
and warranties of ▇▇▇ Telenor set forth in Sections 3.1 through 3.5 of the Share
Exchange Agreement solely as they relate to this Supplemental Agreement are
deemed to be incorporated in this Supplemental Agreement as if set out in full
herein and made in favor of the Buyer's Designee.
7. Further Assurances.
(a) Governmental Approvals. Each of Seller's Designee and Buyer's
Designee agrees to use its reasonable best efforts to comply promptly with all
requests or requirements which applicable Law or any Governmental Entity may
impose on them with respect to the transactions which are the subject of this
Supplemental Agreement. The reasonable best efforts of Seller's Designee and
Buyer's Designee shall include, but shall not be limited to, a good faith
response, in cooperation with one another, to all requests for information,
documentary or otherwise, by any Governmental Entity; provided, however, that
neither the Buyer's Designee nor any of its Affiliates shall be required to
divest any
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operations, assets or business in connection with the receipt of clearance of
the transactions contemplated hereunder.
(b) Confidentiality. (i) Seller's Designee agrees to keep
confidential all information related to this Supplemental Agreement and shall
not disclose such information to any third party unless the prior written
consent of Buyer's Designee has been obtained (which consent may be withheld at
its sole discretion), unless he is legally mandated to do so, and in such case
only to the extent necessary to fulfill such legal requirement.
(ii) None of the Parties shall make any press release or public
announcement with respect to the transactions contemplated hereby without
obtaining the prior written approval of the other Parties hereto, except in each
case as may be required by law or regulations of securities exchanges. Approvals
under this Section 7(b) shall not be unreasonably withheld or delayed.
(c) Best Efforts; Execution of Additional Documents. (i) Subject
to the terms and conditions of this Supplemental Agreement, each Party shall use
its reasonable best efforts to cause the transactions contemplated hereby to be
consummated at the Closing.
(ii) Without further consideration, within a reasonable period of
time after the Closing, as and when requested by any Party, each Party shall
execute and deliver, or cause to be executed and delivered, to the other Party
or Parties all such documents and instruments, and shall take, or cause to be
taken, all such other actions, as the first Party may reasonably deem necessary
or desirable to evidence the consummation of the transactions contemplated by
this Supplemental Agreement and carry out any post-closing matters provided for
hereunder.
(d) Cooperation in Defense of Action. In the event that on or
before the Closing Date, Seller's Designee shall become aware that the Company,
any Company Subsidiary or any of the Supplemental Shares are threatened by,
subject to or are liable to be subject to an Action, Seller's Designee agrees to
promptly notify Buyer's Designee and to cooperate fully and in good faith with
Buyer's Designee and its Affiliates in defending against or bringing a
counterclaim in respect of such Action. In such event, Seller's Designee further
agrees to take all necessary steps in furtherance of defending the Company, any
Company Subsidiary or the Supplemental Shares or bringing a counterclaim in
respect of such Action.
(e) No Encumbrances. Seller's Designee agrees not to sell, assign,
transfer, pledge, create any encumbrance on, or otherwise dispose of, or grant
any option to sell, assign, transfer or otherwise dispose of, any of the
Supplemental Shares to or for the benefit of any Person other than the Buyer's
Designee. ▇▇▇ Telenor agrees not to sell, assign, transfer, pledge, create any
encumbrance on, or otherwise dispose of, or grant any option to sell, assign,
transfer or otherwise dispose of, any of its rights, title and interest in the
Supplemental Shares to or for the benefit of any Person other than the Buyer's
Designee.
(f) Foreign Corrupt Practices Act. The Parties represent and
acknowledge that certain applicable Laws of both the Russian Federation and of
the United States of
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America shall apply to the transactions contemplated by this Supplemental
Agreement. Each Party represents that it is familiar with the Foreign Corrupt
Practices Act of 1977, as amended (the "Act"), and, in particular, with the
provisions of the Act which prohibit the payment or giving anything of value
either directly or indirectly by a representative of a company formed in a
jurisdiction of the United States of America to an official of a foreign
government (including political party officials and candidates for public
office) for the purpose of influencing an act or decision in his or her official
capacity, or inducing him or her to use his or her influence with the foreign
government or any Governmental Entity thereof, to assist a company in obtaining
or retaining business for or with, or directing business, to any Person.
8. Termination
(a) Automatic Termination. This Agreement shall terminate without
any further action of any of the Parties hereto in the event that the Share
Exchange Agreement is terminated in accordance with the terms and conditions
thereof.
(b) Effect of Termination. If this Supplemental Agreement is
validly terminated pursuant to the terms hereof, this Supplemental Agreement
will forthwith become null and void, and there shall be no further liability or
obligation on the part of any Party (or any of their respective officers,
directors, employees, agents or other representatives or Affiliates), provided,
that the provisions with respect to expenses in Section 10(i) and
confidentiality in Section 7(b) will continue to apply following any such
termination.
9. Indemnification. Subject to the limitations and exceptions
contained in Section 9.1 of the Share Exchange Agreement and Section 10(d)
hereof, ▇▇▇ Telenor will indemnify, defend, save and hold Buyer's Designee and
its Affiliates (including after the Closing, the Company and any Company
Subsidiary) and any of its and their respective directors, officers, employees
or agents (the "Buyer's Affiliates") harmless from and against any and all
damage, liability, loss, penalty, expense, assessment, judgment or deficiency of
any nature whatsoever (including, without limitation, reasonable attorneys' fees
and expenses, consultants' and investigators' fees and expenses and other costs
and expenses incident to any suit, action or proceeding) actually incurred or
sustained by Buyer's Designee or any Buyer's Affiliate which shall arise out of
or result from (a) any breach of any representation and warranty given or made
by Seller's Designee in Section 4 herein or in any certificate delivered under
this Supplemental Agreement, or (b) the noncompliance with or nonperformance of
any agreement, obligation or covenant of Seller's Designee under this
Supplemental Agreement.
10. Miscellaneous.
(a) Severability. It is expressly understood and agreed that any
condition or provision of this Supplemental Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the
enforceability of the remaining terms and provisions hereof nor shall it affect
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
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(b) Integration. This Supplemental Agreement (including the
Exhibits attached hereto), together with the Share Exchange Agreement,
constitutes the entire agreement and understanding of the Parties relating to
the subject matter hereof and thereof and supersedes all prior agreements and
understandings, whether oral or written, relating to the subject matter hereof
and thereof.
(c) Assignment. This Supplemental Agreement shall be binding upon,
and inure to the benefit of, the Parties hereto and their respective successors
and permitted assigns. This Supplemental Agreement may not be assigned by any of
the Parties without the prior written consent of each of the other Parties
hereto.
(d) Survival. The representations and warranties set forth in this
Agreement are deemed repeated on each of the Execution Date and the Closing Date
under the Share Exchange Agreement (unless specific dates are otherwise
indicated in the text of such provisions and taking into account all of the
facts and circumstances existing as of such dates). All representations and
warranties contained in this Supplemental Agreement will be deemed to be
representations and warranties under this Supplemental Agreement as to the
matters covered thereby. The representations, warranties and covenants set forth
in this Supplemental Agreement shall survive the Closing Date, and the liability
for breach of any representations and warranties (other than breach of the
representations and warranties in Section 4(d)) shall survive for a period of
eighteen (18) months following the Closing Date, and the liability for breach of
the representations and warranties in Section 4(d) shall survive for a period of
two (2) years following the Closing Date; provided, that if at end of the
relevant survival period any Action is ongoing with respect to the breach of a
representation or warranty, the validity of which would otherwise have expired,
then the applicable survival period solely with respect to the disputed
representation or warranty shall be automatically extended until the Action is
fully and finally resolved.
(e) Counterparts. This Supplemental Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
(f) Headings; Construction Rules. In this Supplemental Agreement,
(a) the headings are included for convenience of reference only and shall not in
any way affect the meaning or interpretation of this Agreement; (b) the words
"herein", "hereby", "hereunder", "hereof" and other equivalent words shall refer
to this Supplemental Agreement as an entirety and not solely to the particular
portion of this Supplemental Agreement in which any such word is used; and (c)
any references herein to a particular Section or Exhibit means a Section of, or
an Exhibit to, this Supplemental Agreement unless another agreement is
specified.
(g) Waiver; Requirement of Writing. This Supplemental Agreement
cannot be changed or any performance, term or condition waived in whole or in
part except by a writing signed by the Party against whom enforcement of the
change or waiver is sought. Other than with respect to receipt of any
Authorization required under applicable Law, any term or condition of this
Supplemental Agreement may be waived at any time by the Party hereto entitled to
the benefit thereof. No delay or failure on the part of any Party in exercising
any rights hereunder, and no partial or single exercise thereof, will constitute
a waiver of such rights or of any other rights hereunder.
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(h) Finder's Fees; Brokers. Each of the Parties hereby represents
and warrants that there are no claims (or any basis for any claims) for
brokerage commissions, finder's fees or like payments in connection with this
Supplemental Agreement or the transactions contemplated hereby resulting from
any action taken by it or on its behalf. Each Party agrees to indemnify and hold
harmless the other Parties hereto with respect to their respective
representations and warranties set forth in this Section 10(h).
(i) Expenses. Each of the Parties hereto shall pay, without right
of reimbursement (except for the rights of indemnification provided in Section
9) from another Party or from the Company, its own costs, Taxes as well as all
the costs incurred by it incident to the preparation, execution and delivery of
this Supplemental Agreement and the performance of its obligations hereunder,
whether or not the transactions contemplated by this Supplemental Agreement
shall be consummated.
11. Notices. Any notice, request, consent, waiver or other
communication required or permitted hereunder shall be effective only if it is
in writing and personally delivered or sent by facsimile or sent, postage
prepaid, by registered or certified mail, return receipt requested, or by
recognized overnight courier service, postage or other charges prepaid, and
shall be deemed given when so delivered by hand or facsimile, or when received
if sent by mail or by courier, as follows:
IF TO BUYER'S DESIGNEE:
SFMT-Rusnet, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇.▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Representation Office of Golden TeleServices, Inc.
1 Kozhevnichesky Proezd
2nd Floor
Moscow 115114
Russian Federation
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
and to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
IF TO SELLER'S DESIGNEE:
▇▇▇▇▇▇▇▇▇ ▇. Kozhanov
OAO "Comincom"
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. Kozhanov
with a copy to:
Coudert Brothers LLP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
IF TO TELENOR:
▇▇▇ Telenor East Invest AS
Snaroyveien 30
N1331 Fornebu
Norway
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Advokatene i ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
and to:
Coudert Brothers LLP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
or such other person or address as the addressee may have specified in a notice
duly given to the sender as provided herein.
12. Applicable Law and Dispute Resolution.
(a) Applicable Law.
This Supplemental Agreement will be construed and interpreted in
accordance with and governed by the laws of the State of New York, United States
of America.
(b) Dispute Resolution.
(i) Any dispute, controversy or claim arising out of or relating
to this Supplemental Agreement, 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:
(1) In the event of any conflict between the Rules and
the provisions of this Supplemental Agreement, the provisions of this
Supplemental Agreement shall prevail.
(2) The place of the arbitration shall be New York, New
York, United States of America.
(3) Where there is only one claimant party and one
respondent party, each 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. 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 appointment(s) within thirty (30) Business Days of the
date of the notice of arbitration, all appointments shall be made by
the Chairman of the International Court of Arbitration of the
International Chamber of Commerce.
(4) The English language shall be used as the written and
spoken language for the arbitration and all matters connected to the
arbitration.
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(5) 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 Supplemental 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.
(6) The award of the arbitrators shall be final and
binding on the Parties.
(7) 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.
(ii) Except for arbitration proceedings pursuant to Section
12(b)(i), 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 Supplemental Agreement.
(iii) Each Party irrevocably appoints CT Corporation System, located
on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 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 this Section 12(iii), 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 11. 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 12(iii) 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
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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 this Section 12(iii).
(iv) Each Party hereby represents and acknowledges that it is
acting solely in its commercial capacity in executing and delivering this
Supplemental Agreement 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 Supplemental Agreement 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.
13. No ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. If any Party obtains material, nonpublic
information about another Party or any of its Affiliates, businesses,
subsidiaries or ventures in the course of the transaction contemplated by this
Supplemental Agreement, the Party in receipt of such information (the
"Recipient") agrees that neither the Recipient nor its representatives will
trade, and that the Recipient will undertake reasonable precautions to disallow
its representatives from trading, in the other Party's securities (or the
securities of any Affiliate of another Party) during such time as such
information is material and nonpublic.
14. No Third-Party Beneficiaries. Nothing in this Supplemental
Agreement will be construed as giving any Person, other than the Parties hereto
and, as provided in Section 9, the Buyer's Affiliates, their respective
successors and permitted assigns, any right, remedy or claim under or in respect
of this Supplemental Agreement or any provision hereof
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Supplemental Share Transfer Agreement has been
validly executed and delivered by the duly authorized representatives of the
Parties as of the Execution Date.
▇▇. ▇▇▇▇▇▇▇▇▇ V. KOZHANOV SFMT-RUSNET, INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. Kozhanov By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------- -----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇ TELENOR EAST INVEST AS
By: /s/ Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
14