EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
Dated as of August 19, 2003
between and among
Golden Telecom, Inc.,
Alfa Telecom Limited,
▇▇▇ Telenor East Invest AS,
OAO Rostelecom,
Capital International Global Emerging Markets Private Equity Fund, L.P.,
Cavendish Nominees Limited
and
First NIS Regional Fund SICAV
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...................................... 1
1.1 DEFINITIONS...................................................... 1
1.2 INTERPRETATION................................................... 4
2. SECURITIES SUBJECT TO THIS AGREEMENT................................ 5
3. DEMAND REGISTRATION................................................. 5
3.1 DEMAND REQUESTS.................................................. 5
3.2 CERTAIN COMPANY OBLIGATIONS...................................... 5
3.3 EFFECTIVE REGISTRATION STATEMENT................................. 6
3.4 NUMBER OF, AND LIMITATIONS ON, REGISTRATIONS..................... 6
3.5 EXPENSES ........................................................ 6
3.6 SELECTION OF UNDERWRITERS........................................ 6
3.7 CIRCUMSTANCES AND EFFECT OF WITHDRAWAL OF DEMAND REGISTRATION.... 6
4. INCIDENTAL REGISTRATION............................................. 7
4.1 REQUEST FOR REGISTRATION......................................... 7
4.2 EXPENSES......................................................... 8
5. REGISTRATION PROCEDURES............................................. 8
6. EXPENSES............................................................ 12
7. INDEMNIFICATION..................................................... 13
7.1 INDEMNIFICATION BY THE COMPANY................................... 13
7.2 INDEMNIFICATION BY SHAREHOLDERS.................................. 13
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS........................... 13
7.4 CONTRIBUTION..................................................... 14
8. TRANSFER OF REGISTRATION RIGHTS..................................... 15
9. NO INCONSISTENT AGREEMENTS.......................................... 15
10. TERM AND TERMINATION............................................. 15
11. MISCELLANEOUS.................................................... 15
11.1 SPECIFIC PERFORMANCE............................................. 15
11.2 WAIVERS; REMEDIES................................................ 15
11.3 AMENDMENTS....................................................... 16
11.4 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES...... 16
11.5 SEVERABILITY..................................................... 16
11.6 FURTHER ASSURANCES............................................... 16
11.7 ENTIRE AGREEMENT................................................. 16
11.8 NOTICES.......................................................... 16
11.9 GOVERNING LAW.................................................... 20
11.10 ARBITRATION; WAIVER OF SOVEREIGN IMMUNITY........................ 20
11.11 COUNTERPARTS; LANGUAGE........................................... 22
REGISTRATION RIGHTS AGREEMENT dated as of August 19, 2003 (this "AGREEMENT")
between and among Golden Telecom, Inc., a corporation organized under the laws
of the State of Delaware, United States of America (the "COMPANY"), Alfa Telecom
Limited, a company organized under the laws of the British Virgin Islands
("ALFA"), ▇▇▇ Telenor East Invest AS, a company organized under the laws of
Norway ("TELENOR"), OAO Rostelecom, an open joint stock company organized under
the laws of the Russian Federation ("RTK"), Capital International Global
Emerging Markets Private Equity Fund, L.P., a limited partnership organized
under the laws of the State of Delaware, United States of America ("CIG"),
Cavendish Nominees Limited, a limited liability company organized under the laws
of Guernsey ("CAVENDISH"), and First NIS Regional Fund SICAV, a private
institutional fund organized under the laws of Luxembourg ("FIRST NIS" and,
together with Cavendish, collectively, "BARINGS").
WITNESSETH
WHEREAS, Telenor has agreed to sell to the Company, and the Company has
agreed to purchase from Telenor, all of the shares of capital stock of Open
Joint Stock Company "Comincom" pursuant to the Share Exchange Agreement dated as
of the date hereof between the Company and Telenor (the "SHARE EXCHANGE
AGREEMENT"); and
WHEREAS, it is a condition precedent to the obligations of the Company
and Telenor under the Share Exchange Agreement that the Company and the
Shareholders enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADVICE" has the meaning specified in the last paragraph of Section 5.
"AFFILIATE" means, with respect to any Person, any other Person who
directly or indirectly controls, or is under common control with, or is
controlled by, such Person, including, if such Person is an individual, any
relative or spouse of such Person, or any relative of such spouse of such
Person, any one of whom has the same home as such Person, and also including any
trust or estate for which any such Person or Persons specified herein, directly
or indirectly, serves as a trustee, executor or in a similar capacity
(including, without limitation, any protector or settlor of a trust) or in which
any such Person or Persons specified herein, directly or indirectly, has a
substantial beneficial interest, and any Person who is controlled by any such
trust or estate; provided always that, in the case of CIG, an Affiliate of CIG
shall include only those Affiliates in which Capital International, Inc. holds,
directly or indirectly, through one or more intermediaries, more than a majority
of the outstanding economic ownership interests of that Person. As used in this
definition, "CONTROL" (including, with its correlative meanings, "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH") means, with respect to any Person, the
possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise) of a
Person.
"AGENTS" means any Person authorized to act and who acts on behalf of a
Shareholder with respect to the transactions contemplated by this Agreement.
"AGREEMENT" has the meaning specified in the preamble hereto.
"ALFA" has the meaning specified in the preamble hereto.
"BARINGS" has the meaning specified in the preamble hereto.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or any day
on which banks located in Moscow, Russia, Oslo, Norway, London, England or New
York, New York are authorized or obliged to close.
"CAVENDISH" has the meaning specified in the preamble hereto.
"CIG" has the meaning specified in the preamble hereto.
"COMMON STOCK" means shares of the Company's common stock, par value
$.01 per share, as the same may be constituted from time to time.
"COMPANY" has the meaning specified in the preamble hereto.
"CONTROLLED AFFILIATE" means, with respect to any Person, any Affiliate
of such Person in which such Person owns or controls, directly or indirectly,
more than fifty percent (50%) of the securities having ordinary voting power for
the election of directors or other governing body thereof or more than fifty
percent (50%) of the partnership or other ownership interests therein (other
than as a limited partner).
"CONTROLLING PERSON" means, with respect to any Person, any other
Person which owns or controls, directly or indirectly, more than fifty percent
(50%) of the securities having ordinary voting power for the election of
directors or other governing body of such first Person or more than fifty
percent (50%) of the partnership or other ownership interests therein (other
than as a limited partner of such first Person).
"DEMAND REGISTRATION" has the meaning specified in Section 3.1.
"DEMAND REQUEST" has the meaning specified in Section 3.1.
"EFFECTIVE DATE" means the latter to occur of (a) the date on which the
board of directors of RTK has ratified and approved RTK's execution of this
Agreement and the other Principal Agreements to which RTK is a party and (b) the
date on which the Closing under (and as defined in) the Share Exchange Agreement
has occurred.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXISTING REGISTRATION RIGHTS AGREEMENTS" means (a) the Registration
Rights Agreement, dated as of October 5, 1999 between GTI and First NIS Regional
Fund SICAV, as amended by the Assignment and Amendment Agreement dated as of May
11, 2001 among GTI, Baring Vostok Private Equity Fund L.P., Cavendish and First
NIS, (b) the Registration
2
Rights Agreement dated as of October 5, 1999 between GTI and Global TeleSystems
Group, Inc., as assigned by the Shareholders Agreement dated as of May 11, 2001
among GTI, Global TeleSystems Europe Holdings, B.V., Alfa, CIG, Cavendish and
First NIS, (c) the Registration Rights Agreement dated as of October 5, 1999
between GTI and Baring Vostok Private Equity Fund, L.P., as amended by the
Assignment and Amendment Agreement dated as of May 11, 2001 among GTI, Baring
Vostok Private Equity Fund, L.P., Cavendish and First NIS, (d) the Shareholders
and Registration Rights Agreement dated as of December 23 1999 among GTI, Global
TeleSystems Group, Inc. and CIG, as assigned by the Shareholders Agreement dated
as of May 11, 2001 among GTI, Global TeleSystems Europe Holdings, B.V., Alfa,
CIG, Cavendish and First NIS and (e) the Registration Rights Agreement dated
September 5, 2002 between RTK and GTI.
"FIRST NIS" has the meaning specified in the preamble hereto.
"PARTICIPATING SHAREHOLDER" has the meaning specified in Section 5(a).
"PARTIES" means the Company, Alfa, Telenor, RTK, CIG, Cavendish and
First NIS, provided that a Shareholder shall cease to be a Party when such
Shareholder ceases to hold any Registrable Securities.
"PERMITTED TRANSFEREE" means, with respect to any Shareholder, any
Controlling Person of such Shareholder, or any Controlled Affiliate of any such
Controlling Person or Shareholder; provided that (a) in the case of Cavendish,
Baring Vostok Private Equity Fund, L.P.1, Baring Vostok Private Equity Fund,
L.P.2, Baring Vostok Private Equity Fund L.P.3, Baring Vostok Fund Co-Investment
L.P., the NIS Restructuring Facility and First NIS Regional Fund SICAV shall
also constitute Permitted Transferees, and (b) in the case of RTK, if the
conditions set forth in Section 4.2(b) of the Shareholders Agreement have been
satisfied (as determined by a majority of the Disinterested Directors, in their
sole discretion), any RTK Transferee shall also constitute a Permitted
Transferee.
"PERSON" means any natural person, corporation, partnership, limited
liability company, proprietorship, other business organization, trust, union,
association or Governmental or Regulatory Authority, whether incorporated or
unincorporated.
"PRINCIPAL AGREEMENTS" means this Agreement, the Share Exchange
Agreement, the Shareholders Agreement and the Standstill Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and all other amendments and supplements
to the Prospectus, including post-effective amendments and all material
incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" means (a) in aggregate, the 10,840,647 shares
of Common Stock held by Alfa, the 4,024,067 shares of Common Stock held by RTK,
the 2,166,405 shares of Common Stock held by CIG, the 2,569,676 shares of Common
Stock held by Barings, and the shares of Common Stock to be acquired by Telenor
pursuant to the Share Exchange Agreement, (b) any shares of Common Stock
acquired in connection with the exercise by any of such Parties of its rights
under Section 3.4 of the Shareholders Agreement, and (c) any securities issued
or issuable with respect to any such shares of Common Stock by
3
way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
"REGISTRATION EXPENSES" has the meaning specified in Section 6.
"REGISTRATION STATEMENT" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of this
Agreement, including (a) the Prospectus, (b) any amendments and supplements to
such Registration Statement, (c) any post-effective amendments, (d) all exhibits
and all material incorporated by reference in such Registration Statement and
(e) any registration statement pursuant to a Demand Registration.
"REQUESTING SHAREHOLDER" has the meaning specified in Section 3.1.
"RTK" has the meaning specified in the preamble hereto.
"RTK TRANSFEREES" means RTC-Leasing OJSC, RosTelecComLeasing Ltd.,
Zurich, RosTeleComLeasing (Cyprus) Limited and Russian Telecommunications
Development Corporation.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"SEC" means the United States Securities and Exchange Commission.
"SHARE EXCHANGE AGREEMENT" has the meaning specified in the first
recital hereto.
"SHAREHOLDERS" means Alfa, Telenor, RTK, CIG and Barings.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement dated as of
the date hereof between and among the Company and the Shareholders.
"TELENOR" has the meaning specified in the preamble hereto.
"TERMINATION AGREEMENT" means the Termination Agreement dated as of the
date hereof between and among the Company, Alfa, RTK, CIG, First NIS and
Cavendish.
"UNCITRAL RULES" has the meaning specified in Section 11.10(a).
"UNDERWRITTEN OFFERING" means the offering and sale of securities of
the Company covered by any Registration Statement pursuant to a firm commitment
underwriting to an underwriter at a fixed price for reoffering or pursuant to
agency or best efforts arrangement with an underwriter.
1.2 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;
4
(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;
(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.
2. SECURITIES SUBJECT TO THIS AGREEMENT
The securities entitled to the benefits of this Agreement are the
Registrable Securities but, with respect to any particular Registrable Security,
only until (a) it has been effectively registered under the Securities Act and
disposed of in accordance with the Registration Statement covering it, (b) it
has been distributed pursuant to Rules 144 or 144A under the Securities Act (or
any similar provision then in force) or (c) it has otherwise been transferred
and a new certificate or other evidence of ownership thereof not bearing a
legend restricting transfer under the Securities Act and not subject to any stop
transfer order has been delivered by or on behalf of the Company and no other
restriction on transfer exists.
3. DEMAND REGISTRATION
3.1 DEMAND REQUESTS
Each Shareholder shall have the right to request (each, a "REQUESTING
SHAREHOLDER") in writing that the Company effect a registration under the
Securities Act with respect to all or part of the Registrable Securities held by
such Requesting Shareholder(s) (a "DEMAND REGISTRATION"). The Requesting
Shareholder(s) shall deliver to the Company in accordance with Section 11.8 a
written request for a Demand Registration (a "DEMAND REQUEST") specifying the
number of Registrable Securities to be registered, the intended method of
distribution and other relevant facts.
3.2 CERTAIN COMPANY OBLIGATIONS.
Following delivery of a Demand Request, and subject to the conditions
of this Article 3, the Company shall:
(a) give prompt written notice of such Demand Request to all other
Shareholders in accordance with Section 11.8, and such Shareholders shall have
thirty (30) days from receipt thereof to respond in order to have any
Registrable Securities owned by such Shareholders included in such registration;
5
(b) use all reasonable efforts to effect such registration as
promptly as practicable (including, without limitation, by filing a Registration
Statement (and executing an undertaking to file any amendments thereto) covering
the Registrable Securities so requested to be registered and complying with
applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) or as may be so requested; and
(c) refrain from filing any other Registration Statements, other
than pursuant to a Registration Statement on Form S-4 or S-8 (or successor
forms), with respect to any securities, including Registrable Securities, of the
Company until such date that is ninety (90) days following effectiveness of the
Registration Statement filed in connection with such Demand Registration.
3.3 EFFECTIVE REGISTRATION STATEMENT
Subject to Section 3.7, a Demand Registration shall not be deemed to
have been effected unless a Registration Statement with respect thereto has
become effective and remained effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement for the period of time required pursuant
to Section 5(c).
3.4 NUMBER OF, AND LIMITATIONS ON, REGISTRATIONS
Each of Alfa, Telenor and RTK shall be entitled to request 2 (two)
Demand Registrations. Each of Barings and CIG shall be entitled to request 1
(one) Demand Registration. The Company shall not be obligated to register any
Registrable Securities pursuant to any Demand Registration unless there is
requested to be included in such registration by the Requesting Shareholder(s)
at least 500,000 shares of Common Stock (subject to such adjustments as may be
necessary by reason of the occurrence of an event contemplated by clause (b) of
the definition of Registrable Securities).
3.5 EXPENSES
Except as provided in Section 3.7, in any registration initiated as a
Demand Registration, the Company will pay all Registration Expenses, whether or
not the Registration Statement has become effective.
3.6 SELECTION OF UNDERWRITERS
If any of the Registrable Securities covered by a Demand Registration
are to be sold in an underwritten offering, or in a best efforts underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected jointly by the Requesting
Shareholder(s) and the Company.
3.7 CIRCUMSTANCES AND EFFECT OF WITHDRAWAL OF DEMAND REGISTRATION
Upon the request of any Requesting Shareholder or if a sufficient
number of Requesting Shareholders withdraw from a Demand Registration such that
the number of Registrable Securities to be included in such Demand Registration
fails to meet the threshold specified in Section 3.4, the Company shall have the
right to cease proceeding with a Demand Registration requested by such
Requesting Shareholder(s). In such event, (a) the Requesting Shareholder(s)
shall bear all Registration Expenses incurred in connection with such Demand
Registration, in which event such Demand Registration shall not count as a
6
Demand Registration for purposes of Section 3.4 or (b) the Company shall bear
all such Registration Expenses, in which event such withdrawn Demand
Registration shall count as a Demand Registration for purposes of Section 3.4;
provided that a Requesting Shareholder shall be entitled to withdraw from a
Demand Registration and neither (i) pay any Registration Expenses in connection
therewith nor (ii) forfeit the right to such Demand Registration for purposes of
Section 3.4 if (A) such Requesting Shareholder learned of a material adverse
change in the financial condition, business or prospects of the Company that was
not known to such Requesting Shareholder on the date of such Requesting
Shareholder's Demand Request and (B) the Company failed to disclose such
material adverse change to such Requesting Shareholder at the time such Demand
Request was delivered.
4. INCIDENTAL REGISTRATION
4.1 REQUEST FOR REGISTRATION
If the Company at any time proposes to register any of its authorized
but unissued shares of Common Stock on its own behalf for the purposes of
raising capital (other than on Form S-4 or Form S-8 or any successor or similar
form to Form S-4 or Form S-8), or any of its unregistered and issued shares of
Common Stock on behalf of other stockholders, under the Securities Act on a form
and in a manner that would permit registration of Registrable Securities under
the Securities Act for sale to the public, it shall, in each such case, give
prompt notice in accordance with the provisions of Section 11.8 to each
Shareholder of its intention to do so, specifying the form and manner and the
other relevant facts involved in such proposed registration (including, without
limitation, the identity of the managing underwriter, if any). Upon the written
request of a Shareholder delivered to the Company within thirty (30) days after
such notice shall have been given to such Shareholder (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Shareholder and the intended method of disposition thereof), the Company will
use its reasonable best efforts to effect the registration under the Securities
Act, as expeditiously as is reasonable, of all the Registrable Securities that
the Company has been so requested to register by such Shareholder, to the extent
requisite to permit the sale of the Registrable Securities to be so registered;
provided, however, that:
(a) if, at any time after giving such written notice of its
intention to register any shares of Common Stock proposed to be registered by
the Company and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register such shares of Common Stock, the Company shall, at its election,
give written notice of such determination to each Shareholder, and thereupon the
Company shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith to the extent provided in
Section 4.2); and
(b) if the managing underwriter of such offering shall advise the
Company that, in its judgment, the number of shares of Common Stock proposed to
be included in such offering should be limited because the inclusion of
Registrable Securities is likely to adversely impact the purchase price obtained
for the shares of Common Stock proposed to be included in such offering, then
the Company shall promptly advise each Shareholder thereof and may require, by
written notice to such Shareholder accompanying such advice, that, to the extent
necessary to meet such limitation, all holders of Registrable Securities and of
other shares of Common Stock proposing to sell shares of Common Stock in such
offering shall share pro rata in the number of shares of Common Stock to be
excluded from such offering,
7
such sharing to be based on the respective numbers of Registrable Securities and
other shares of Common Stock as to which registration has been requested by such
holders, and that the distribution of such Registrable Securities and other
shares of Common Stock as are so excluded be deferred (in case of a deferral as
to a portion of such Registrable Securities and other shares of Common Stock,
such portion to be allocated among such holders in proportion to the respective
numbers of shares of Common Stock so requested to be registered by such holders)
until the completion of the distribution of such shares of Common Stock and any
other securities by such underwriters.
4.2 EXPENSES
In any registration initiated pursuant to this Article 4, the Company
will pay all Registration Expenses, whether or not the Registration Statement
has become effective.
5. REGISTRATION PROCEDURES
Whenever a Shareholder has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall promptly take all such
actions as may be necessary or desirable to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) with respect to a request to file a Registration Statement
covering Registrable Securities made pursuant to Article 3, use its reasonable
best efforts to prepare and file with the SEC not later than sixty (60) days
after receipt of the relevant Demand Request (which sixty (60) day period may be
extended by the Company for up to an additional sixty (60) days if at the time
of such request the Company is engaged in negotiations in anticipation of its
participation in a material merger, acquisition or other form of business
combination or, if by reason of such transaction, the Company is not in a
position to timely prepare and file the Registration Statement and the Company
furnishes to each Shareholder participating, or electing to participate, in such
registration of Registrable Securities (the "PARTICIPATING SHAREHOLDER") a
certificate signed by the president or a vice president of the Company stating
that in the good faith opinion of the board of directors of the Company such
registration would interfere with such transaction then being pursued by the
Company) a Registration Statement on a form for which the Company then qualifies
which is satisfactory to the Company and the Participating Shareholders (unless
the offering is made on an underwritten basis, including on a best efforts
underwriting basis, in which event the managing underwriter or underwriters may
determine the form to be used) and which form shall be available for the sale of
the Registrable Securities in accordance with the intended method or methods of
distribution thereof, and use its reasonable best efforts to cause such
Registration Statement to become effective; the Company shall not file any
Registration Statement pursuant to Article 3 or any amendment thereto or any
Prospectus or any supplement thereto (including such documents incorporated by
reference) to which the Participating Shareholders or the underwriters, if any,
shall reasonably object in light of the requirements of the Securities Act or
any other applicable laws or regulations;
(b) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (excluding documents to be incorporated by
reference therein, except in the case of the preparation of the initial
Registration Statement), the Company shall, at least five (5) days before
filing, furnish to each Participating Shareholder and the underwriters, if any,
copies of all such documents in substantially the form proposed to be filed
(including
8
documents incorporated therein by reference), to enable such Participating
Shareholders and the underwriters, if any, to review such documents prior to the
filing thereof, and the Company shall make such reasonable changes thereto
(including changes to, or the filing of amendments reflecting such changes to,
documents incorporated by reference) as may be reasonably requested by such
Participating Shareholders and the managing underwriter or underwriters, if any;
(c) subject to paragraph (b) above, prepare and file with the SEC
such amendments and post-effective amendments to the Registration Statement as
may be necessary to keep the Registration Statement continuously effective for a
period of not less than ninety (90) days; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended methods of disposition by the Participating
Shareholders set forth in such Registration Statement or supplement to the
Prospectus;
(d) notify the Participating Shareholders and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm
such advice in writing, (i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time any of the representations or warranties of the Company contemplated by
paragraph (o) below cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (vi) of the occurrence of
any event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading;
(e) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(f) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement or
the Prospectus (after initial filing of the Registration Statement), provide
copies of such document to counsel to the Participating Shareholders and to the
managing underwriters;
(g) provide to the Participating Shareholders and each managing
underwriter, without charge, at least one signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference) and a reasonable number
of conformed copies of all such documents;
(h) deliver to the Participating Shareholders and the
underwriters, if any, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; the Company consents to the use
9
of the Prospectus or any amendment or supplement thereto by the Participating
Shareholders and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(i) prior to the date on which the Registration Statement is
declared effective, use its reasonable best efforts to register or qualify, or
cooperate with the Participating Shareholders and the underwriters, if any, and
their respective counsel in connection with the registration or qualification
of, such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any seller or underwriter reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided that the Company will not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to general
service of process or taxes in any such jurisdiction where it is not then so
subject; provided, further, that the Company will not be required to qualify
such Registrable Securities in any jurisdiction in which the securities
regulatory authority requires that the Participating Shareholders submit any
shares of its Registrable Securities to the terms, provisions and restrictions
of any escrow, lock-up or similar agreement(s) for consent to sell Registrable
Securities in such jurisdiction unless the Participating Shareholders agrees to
do so;
(j) cooperate with the Participating Shareholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two (2) Business Days prior to any sale of Registrable
Securities to the underwriters;
(k) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(l) upon the occurrence of any event contemplated by paragraph
(d)(vi) above, prepare a supplement or post-effective Amendment to the
Registration Statement or the Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(m) use its reasonable best efforts to cause all Registrable
Securities covered by the Registration Statement to be listed on the Nasdaq
National Market and each other exchange on which similar securities issued by
the Company are then listed if requested by Shareholder or the managing
underwriters, if any;
(n) provide a transfer agent and registrar for all Registrable
Securities;
(o) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith as
Participating Shareholders or the managing underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of
10
such Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration (i) make such representations and warranties to the
Participating Shareholders and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings (including, without limitation, an agreement to not sell equity
securities during a customary lock-up period) and confirm the accuracy of the
same if and when requested, and matters relating to the compliance of the
Registration Statement and the Prospectus with the Securities Act; (ii) obtain
opinions of counsel to the Company, and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) addressed to Participating Shareholders and the
underwriters, if any, covering the matters customary in underwritten primary
offerings and such other matters as may be reasonably requested by the
Participating Shareholders and underwriters, if any; (iii) obtain "comfort"
letters and updates thereof from the Company's independent certified public
accountants, subject to such accountants' customary procedures, addressed to the
Participating Shareholders and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "comfort"
letters by underwriters in connection with primary underwritten offerings; (iv)
if an underwriting agreement is entered into, the same shall set forth in full
the indemnification provisions and procedures of Article 7 with respect to all
parties to be indemnified pursuant to said Section; and (v) the Company shall
deliver such documents and certificates as may be requested by the Participating
Shareholders and the managing underwriters, if any, to evidence compliance with
clause (i) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above shall be
done at each closing under such underwriting or similar agreement or as and to
the extent required thereunder;
(p) make available for inspection during normal business hours by
the Participating Shareholders, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by the Participating Shareholders or any such underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by the Participating Shareholders or any such
underwriter, attorney, accountant or agent in connection with such registration
statement; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such Persons;
(q) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to its
security holders, earnings statements satisfying the provisions of Section 11(a)
of the Securities Act, no later than forty-five (45) days after the end of any
twelve (12)-month period (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm or best efforts
underwriting offering, and (ii) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said twelve (12)-month periods; and
(r) take such other reasonable steps that are necessary or
advisable to permit the sale of such Registrable Securities.
The Company may require the Participating Shareholders to furnish to
the Company such information and documents regarding the Participating
Shareholders and the distribution
11
of the Registrable Securities as the Company may from time to time reasonably
request in writing.
Each Shareholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5(d)(vi)
hereof, such Shareholder will forthwith discontinue disposition of Registrable
Securities until such Shareholder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(l), or until it is advised in
writing (the "ADVICE") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the Prospectus, and, if so directed by the
Company, each Participating Shareholder will, or will request the underwriters
to, deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Shareholder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give such notice, the time periods mentioned in
Section 5(c) hereof shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section
5(d)(vi) to and including the date when such Participating Shareholder shall
have received the copies of the supplemented or amended prospectus contemplated
by Section 5(l) or the Advice.
6. EXPENSES
Except as otherwise provided herein, all expenses incident to the
Company's performance of or compliance with this Agreement including without
limitation all registration and filing fees, including with respect to filings
required to be made with the National Association of Securities Dealers, fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managing underwriters or holders of a majority of the Registrable Securities
being sold may designate), printing expenses, messenger, telephone and delivery
expenses, and fees and disbursements of counsel for the Company, and of all
independent certified public accountants (including the expenses of any special
audit and "comfort" letters required by or incident to such performance), the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed, rating agency fees, securities acts liability
insurance if any Shareholder so requires, the reasonable fees and expenses of
any special experts retained by the Participating Shareholders or by the Company
at the request of the managing underwriters in connection with such registration
and fees and expenses of other Persons retained by such Participating
Shareholders (all such expenses being herein called "REGISTRATION EXPENSES")
will be borne by the Company. The Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties) and the expense of
any annual audit which are not Registration Expenses for purposes of this
Agreement. In no event shall the Company be liable for the payment of any
discounts, commissions or fees of underwriters, selling brokers, dealer managers
or similar industry professionals relating to the distribution of the
Registrable Securities. The Participating Shareholders shall be liable for the
cost and expense of the time spent by their respective officers, employees and
Agents, including such Participating Shareholders' counsel, in connection with
the registration of Registrable Securities owned by them.
12
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY
The Company will indemnify and hold harmless, to the full extent
permitted by law, each Shareholder, its officers and directors, their Agents and
each Person who controls such Shareholder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities (or actions in respect
thereto) and expenses to which any such Person may be subject, under the
Securities Act or otherwise, and reimburse all such Persons for any legal or
other expenses incurred with investigating or defending against any such losses,
claims, damages or liabilities, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in a Registration Statement, Prospectus
or preliminary prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same arise out of or are based
upon an untrue statement of a material fact or omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which statement or omission is made therein in reliance upon and in
conformity with information furnished in writing to the Company by such
Shareholder, expressly for use therein. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Shareholder, such Shareholder's directors and officers, their Agents or a
controlling Person, and shall survive the transfer of such securities by any
Shareholder. The Company will also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls such
Persons (with the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of each Shareholder.
7.2 INDEMNIFICATION BY SHAREHOLDERS
Each Shareholder will indemnify and hold harmless, to the full extent
permitted by law, the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities (or actions in respect thereto) and
expenses to which any such Person may be subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based upon any untrue or alleged untrue statement of a material fact
contained in a Registration Statement or Prospectus or preliminary prospectus or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only if and to the extent, that such untrue or alleged untrue
statement or omission or alleged omission is made therein in reliance upon and
in conformity with the information furnished in writing by such Shareholder
specifically for inclusion therein. In no event shall the liability of any
Shareholder hereunder be greater in amount than the dollar amount of the
proceeds received by such Shareholder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS
Any Person entitled to indemnification hereunder will (a) give prompt
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (b) unless
13
in such indemnified party's reasonable judgment a conflict of interest may exist
between such indemnified and indemnifying parties with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party and in that case the
indemnified party shall have the right to participate in the conduct of such
defense provided that it will pay for the fees of its own counsel. Whether or
not such defense is assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. The failure to notify an
indemnifying party promptly of the commencement of any such action, if and to
the extent prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Article
7, but the omission so to notify the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Article 7.
7.4 CONTRIBUTION
(a) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. In any event, the amount of contribution payable by any Shareholder
hereunder shall not exceed the dollar amount of the proceeds received by such
Shareholder upon the sale of the Registrable Securities giving rise to such
contribution obligation.
(b) The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
14
8. TRANSFER OF REGISTRATION RIGHTS
The registration rights of each Shareholder under this Agreement with
respect to any Registrable Securities may be transferred to Permitted
Transferees or to another Shareholder; provided, however, that (a) the
transferring Shareholder shall give the Company written notice at or prior to
the time of such transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this Agreement
are being transferred, (b) such transferee shall agree in writing, in form and
substance reasonably satisfactory to the Company, to be bound by the provisions
of this Agreement, and (c) the terms of such transfer shall make clear how the
transferor Shareholder and the transferee shall utilize the Demand Registrations
provided to each Shareholder hereunder.
9. NO INCONSISTENT AGREEMENTS
The Company shall not enter into any agreement or arrangement of any
kind with any Person that is inconsistent with any of the rights granted to the
Shareholders in this Agreement or otherwise conflicts with any of the provisions
hereof.
10. TERM AND TERMINATION
This Agreement shall become effective on the Effective Date and remain
in effect until the date on which all of the Parties agree in writing to the
termination of this Agreement. Promptly following the date on which its board of
directors has ratified and approved RTK's execution of this Agreement, RTK shall
provide each other Party with a certified copy of an extract from the protocol
of the meeting of RTK's board of directors containing such ratification and
approval.
11. MISCELLANEOUS
11.1 SPECIFIC PERFORMANCE
The Parties hereby declare that it is impossible to measure in money
the damages that will accrue to a Party by reason of a failure by another Party
to perform any of the obligations under this Agreement. Therefore, if any Party
shall, in accordance with Section 11.10, institute any proceeding to enforce
specifically the provisions hereof, any Party against whom such proceeding is
brought hereby waives the claim or defense therein that the Party instituting
such proceeding has an adequate remedy at law or in damages, and the Party
against whom such proceeding is brought shall not urge in any such proceeding
the claim or defense that such remedy at law or in damages exists.
11.2 WAIVERS; REMEDIES
Any term or condition of this Agreement may be waived at any time by
the Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving such term or condition. No waiver by any Party of any term
or condition of this Agreement, in one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by law or otherwise afforded, will be cumulative and not alternative.
15
11.3 AMENDMENTS
This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each Party.
11.4 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES
Except as expressly provided in Article 8, neither this Agreement nor
any right, interest or obligation hereunder may be assigned by any Party without
the prior written consent of the other Parties and any attempt to do so will be
void. Subject to the preceding sentence, 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 their respective successors or
permitted assigns, and, except as specified in Article 7, it is not the
intention of the Parties to confer third party beneficiary rights upon any other
Person.
11.5 SEVERABILITY
If any provision of this Agreement is or shall become invalid, illegal
or unenforceable in any jurisdiction, the invalidity, illegality or
unenforceability of such provision in such jurisdiction shall not affect or
impair the validity, legality or enforceability of (a) any other provision of
this Agreement or any such other document in such jurisdiction or (b) such
provision or any other provision of this Agreement or any such other document in
any other jurisdiction.
11.6 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.
11.7 ENTIRE AGREEMENT
This Agreement and the other Principal Agreements will, from and after the
Effective Date, supersede all prior discussions and agreements among the Parties
with respect to the subject matter hereof and thereof and contain the sole and
entire agreement between the Parties with respect to the subject matter hereof
and thereof. For the avoidance of doubt, the Parties acknowledge that the
Existing Registration Rights Agreements shall remain in full force and effect
until the Effective Date, whereupon the Existing Registration Rights Agreements
shall terminate and be of no further force and effect.
11.8 NOTICES
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing (including telecopier or similar writing) and
shall be deemed to have been duly given only if delivered personally or by
facsimile transmission or sent by courier, addressed to the address of the
parties stated below or to such changed address as such party may have fixed by
notice or, if given by telecopier, when such telecopy is transmitted and the
appropriate answerback is received.
(i) If to Alfa:
16
Alfa Telecom Limited
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇▇ ▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
2/2 Paveletskaya Square
115054 Moscow Russian Federation
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
(ii) If to Telenor:
▇▇▇ Telenor East Invest AS
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Advokatene i ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
and to:
Coudert Brothers LLP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
17
(iii) If to CIG:
c/o Capital International Global Emerging Markets
Private Equity Fund, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
with a copy to:
Capital International Limited
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
and to:
Capital Research International Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(iv) If to Cavendish Nominees Limited:
c/o International Private Equity Services
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇, Guernsey
Facsimile No.: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
18
Baring Vostok Capital Partners
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(v) If to First NIS Regional Fund SICAV:
▇/▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ Tourney
with a copy to:
Baring Vostok Capital Partners
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(vi) If to the Company:
Golden Telecom, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇.
19
Suite 200
Washington, D.C. 20007
U.S.A.
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Representation Office of Golden TeleServices, Inc.
1 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(vii) If to RTK:
OAO Rostelecom Moscow,
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ivanovich
with a copy to:
▇▇▇▇▇▇▇▇ Chance CIS Limited,
▇▇. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Federation
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
11.9 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.
11.10 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)
20
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 New York, New
York, United States of America.
(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 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.
(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
11.10(a), no action, lawsuit or other proceeding (other than the enforcement of
an arbitration decision, an action to compel arbitration or an application for
injunctive relief or other 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 Agreement.
(c) Each Party other than CIG irrevocably appoints CT Corporation
System, located on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
21
USA, and CIG irrevocably appoints Capital International Research, Inc., located
on the date hereof at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10111,
USA, Attn: General Counsel, 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 10.10, 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 11.8. 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 11.10 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 this Section 11.10.
(d) Each Party hereby represents and acknowledges that it is
acting solely in its commercial capacity in executing and delivering this
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 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.
11.11 COUNTERPARTS; LANGUAGE
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement is being executed in both an English
language version and a Russian language version. In the event of any discrepancy
between the English language version and the Russian language version of this
Agreement or any disagreement among the Parties as to the meaning or
interpretation of any part of this Agreement, the English language version of
this Agreement shall prevail.
22
IN WITNESS WHEREOF, the Parties have executed this Registration Rights
Agreement as of the date first written above.
The Shareholders
ALFA TELECOM LIMITED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
▇▇▇ TELENOR EAST INVEST AS
By /s/ Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact
OPEN JOINT STOCK COMPANY
ROSTELECOM
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Director
CAPITAL INTERNATIONAL GLOBAL
EMERGING MARKETS PRIVATE EQUITY
FUND, L.P.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
23
FIRST NIS REGIONAL FUND SICAV
By /s/ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
By /s/ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
CAVENDISH NOMINEES LIMITED
By /s/ C A E Helyar
--------------------------
Name: C A E Helyar
Title: Director
The Company
GOLDEN TELECOM, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
24