Page 67 of 110 Pages
STANDSTILL AGREEMENT
Dated as of August 19, 2003
between and among
Alfa Telecom Limited,
▇▇▇ Telenor East Invest AS,
OAO Rostelecom,
Capital International Global Emerging Markets Private Equity Fund, L.P.,
Cavendish Nominees Limited,
First NIS Regional Fund SICAV
and
Golden Telecom, Inc.
Page 68 of 110 Pages
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................1
1.1 DEFINITIONS...........................................................1
1.2 INTERPRETATION........................................................3
2. STANDSTILL...............................................................4
3. TERM AND TERMINATION.....................................................5
4. MISCELLANEOUS............................................................6
4.1 SPECIFIC PERFORMANCE..................................................6
4.2 WAIVERS; REMEDIES.....................................................6
4.3 AMENDMENTS............................................................6
4.4 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES...........6
4.5 SEVERABILITY..........................................................6
4.6 FURTHER ASSURANCES....................................................6
4.7 ENTIRE AGREEMENT......................................................6
4.8 NOTICES...............................................................7
4.9 GOVERNING LAW........................................................11
4.10 ARBITRATION; WAIVER OF SOVEREIGN IMMUNITY............................11
4.11 COUNTERPARTS; LANGUAGE...............................................13
Page 69 of 110 Pages
STANDSTILL AGREEMENT dated as of August 19, 2003 (this "Agreement") between and
among 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 Delaware ("CIG"), Cavendish Nominees
Limited, a limited liability company organized under the laws of Guernsey
("Cavendish"), First NIS Regional Fund SICAV, a private institutional fund
organized under the laws of Luxembourg ("First NIS" and, together with
Cavendish, collectively, "Barings"), and Golden Telecom, Inc., a corporation
organized under the laws of the State of Delaware, United States of America (the
"Company").
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:
"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.
"Alfa" has the meaning specified in the preamble hereto.
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"Barings" has the meaning specified in the preamble hereto.
"Board" means the board of directors of the Company.
"Cavendish" has the meaning specified in the preamble hereto.
"CIG" has the meaning specified in the preamble hereto.
"Company" has the meaning specified in the preamble hereto.
"DGCL" means the General Corporation Law of the State of Delaware.
"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.
"Existing Standstill Agreement" means the Standstill Agreement dated as
of September 5, 2002 between and among GTI, Alfa, RTK, CIG and Barings.
"First NIS" has the meaning specified in the preamble hereto.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, arbitral panel or tribunal, legislature, government, ministry,
committee, inspectorate, authority, agency, commission, official or other
competent authority of any country or state, as well as any county, city or
other political subdivision of any of the foregoing.
"Non-Election Issue" has the meaning specified in Section 2(d).
"Parties" means the Company, Alfa, Telenor, RTK, Cavendish, First NIS and
CIG.
"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 Registration Rights Agreement.
"RTK" has the meaning specified in the preamble hereto.
"Share Exchange Agreement" has the meaning specified in the first recital
hereto.
"Shareholders" means, collectively, Alfa, Telenor, RTK, CIG and Barings.
"Shareholders Agreement" means the Shareholders Agreement dated as of the
date hereof between and among the Shareholders and the Company.
"Telenor" has the meaning specified in the preamble hereto.
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"Tender Offer" means an offer made by a Shareholder or any of its
Affiliates in accordance with Section 14 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder, to purchase
any and all of the issued and outstanding shares of the Company, which, subject
to Section 3.5(a)(i) and (ii) of the Shareholders Agreement, is accepted by
stockholders holding a simple majority of the issued and outstanding shares of
Voting Stock (excluding any shares of Voting Stock held by such Shareholder and
its Affiliates).
"UNCITRAL Rules" has the meaning specified in Section 4.10.
"Voting Stock" has, in relation to the Company, the meaning specified in
Section 203(c)(8) of the DGCL.
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;
(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;
(g) a reference to any Person shall include such Person's successors and
permitted assigns under any agreement, instrument, contract or other document;
and
(h) the words "fully diluted" mean that, in calculating the number of
shares of Voting Stock or other capital stock of the Company, all issued and
outstanding shares of Voting Stock, all other shares of capital stock of the
Company and any shares of capital stock of the Company (whether or not
authorized) issuable upon the exercise, exchange or conversion of any option,
warrant, convertible security or other right must be taken into account.
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2. STANDSTILL
(a) Each Shareholder agrees that such Shareholder will not, nor will
it permit any of its Affiliates to, directly or indirectly, in any manner
acquire, or agree to acquire, any shares of Voting Stock, if the acquisition of
such shares of Voting Stock would increase the ownership of such Shareholder and
its Affiliates to more than (i) the percentage of the shares of Voting Stock
then outstanding (calculated on a fully diluted basis) as set forth opposite
each such Shareholder's name in the column headed "Fully Diluted" below, or (ii)
the percentage of the shares of Voting Stock then outstanding (calculated on a
non-fully diluted basis) set forth opposite such Shareholder's name in the
column headed "Non-Fully Diluted" below:
Shareholder Fully Diluted Non-Fully Diluted
----------- ------------- -----------------
Alfa 43.00% 49.99%
Telenor 35.00% 40.00%
RTK 30.00% 35.00%
CIG 17.20% 20.00%
Barings 17.20% 20.00%
(b) The provisions set forth in Section 2(a) shall not apply to the
following acquisitions or circumstances:
(i) a Shareholder who acquires shares of Voting Stock in a Tender
Offer;
(ii) if the Board determines to conduct an auction of the Company, in
which case, each Shareholder may participate in such auction on the same terms
as all other bidders notwithstanding any provisions in this Agreement to the
contrary; or
(iii) if any Person other than Alfa, Telenor, RTK, CIG or Barings or
any of their respective Affiliates acquires, or has entered into a binding
agreement to acquire, beneficial ownership of greater than fifteen (15%) of
the shares of Voting Stock, as evidenced by a Schedule 13D filing made by such
Person.
(c) Each Shareholder agrees that it will not make, nor will it permit any
of its Affiliates to make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the United States
Securities and Exchange Commission) to vote any shares of Voting Stock in
connection with the election of members of the Board (other than proxies to vote
any shares of Voting Stock beneficially owned by such Shareholder and/or any of
its Affiliates or in connection with a Tender Offer made by such Shareholder or
any of its Affiliates).
(d) Each Shareholder agrees that it will not make, nor will it permit any
of its Affiliates to make, or in any way participate in any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the United States
Securities and Exchange Commission) to vote any shares of Voting Stock, with
respect to any matter, other than the election of directors of the Company
(which is governed by Section 2(c)) (a "Non-Election Issue"), which may be
submitted to a vote of the stockholders of the Company (other than proxies to
vote any shares of Voting Stock beneficially owned by such Shareholder and/or
any of its Affiliates or in
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connection with a Tender Offer made by such Shareholder or any of its
Affiliates) with respect to any such Non-Election
Issue.
(e) Notwithstanding anything to the contrary contained in Section 2(a)
through 3(d) (inclusive), nothing contained in this Agreement shall be construed
to prevent any Shareholder or any of its Affiliates from: (i) making a Tender
Offer; or (ii) communicating with any other holder or holders of the Company's
outstanding securities, including, without limitation, the expression of the
opinion of such Shareholder with respect to any third-party solicitation of
proxies, provided that such Shareholder does not (A) provide to any security
holder of the Company a form of proxy or other authorization permitting such
security holder (or its designee) to vote any equity security of the Company on
behalf of such Shareholder or (B) accept from any security holder of the Company
a proxy or other authorization permitting such Shareholder (or its designee) to
vote any equity security of the Company on such security holder's behalf,
provided that clauses (A) and (B) above shall not be deemed to prevent the
solicitation of proxies to vote securities of the Company beneficially owned by
such Shareholder, as contemplated by Section 2(c) and 2(d).
3. TERM AND TERMINATION
This Agreement shall become effective on the Effective Date and remain
in effect until the earliest of:
(a) the date on which all of the Parties agree in writing to the
termination of this Agreement;
(b) the date eighteen (18) months following the Effective Date;
(c) the date on which any Person owns, individually or collectively with
its Affiliates, more than fifty percent (50%) of the issued and outstanding
shares of Voting Stock; and
(d) the voluntary or involuntary filing of a petition in bankruptcy by or
against the Company, the occurrence of an event of insolvency affecting the
Company, or the appointment of a receiver for the Company;
provided that (i) any Shareholder who, together with its Affiliates, having once
attained ownership of at least three percent (3%) or more of the shares of
Voting Stock thereafter ceases to own, together with its Affiliates, at least
three percent (3%) of the shares of Voting Stock shall cease to be a party to,
or have any rights or obligations under, this Agreement from and after the date
of the relevant Transfer or dilution; and (ii) no Transfer, dilution or
termination shall be deemed to relieve any Shareholder of any obligations of
such Shareholder under this Agreement accruing or resulting from any breach,
action or omission of such Shareholder occurring prior to the date of such
Transfer, dilution or termination. 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.
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4. MISCELLANEOUS
4.1 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 4.10, 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.
4.2 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.
4.3 Amendments
This Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each Party.
4.4 No Assignment; Binding Effect; No Third Party Beneficiaries
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 it is not the intention of the
Parties to confer third party beneficiary rights upon any other Person.
4.5 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.
4.6 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.
4.7 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
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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 Standstill Agreement shall
remain in full force and effect until the Effective Date, whereupon the Existing
Standstill Agreement shall terminate and be of no further force and effect.
4.8 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
relevant Party 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:
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 Telenor
Snar0yveien 30
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▇-▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇
Attention: Bj0rn ▇▇▇▇▇▇▇
and to:
Coudert Brothers LLP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
(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.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(iv) If to Cavendish Nominees Limited:
c/o International Private Equity Services
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇, Guernsey
Facsimile No.: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
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
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇
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Facsimile No.: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(vi).....If to the Company:
Golden Telecom, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇.▇.▇.
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Representation Office of Golden TeleServices, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(vii) If to RTK:
OAO Rostelecom Moscow,
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ivanovich
with a copy to:
▇▇▇▇▇▇▇▇ Chance CIS Limited
▇▇. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Russian Federation
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Facsimile No.: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
4.9 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.
4.10 Arbitration; Waiver Of Sovereign Immunity
(a) Any and all disputes and controversies arising under, relating to or in
connection with this Agreement shall be settled by arbitration by a panel of
three (3) arbitrators under the United Nations Commission on International Trade
Law (UNCITRAL) Arbitration Rules then in force (the "UNCITRAL Rules") in
accordance with the following terms and conditions:
(i) In the event of any conflict between the UNCITRAL Rules and the
provisions of this Agreement, the provisions of this Agreement shall prevail.
(ii) The place of the arbitration shall be 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,
cting 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.
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Page 80 of 110 Pages
(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 4.10(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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇, 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 4.10, 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 4.8. 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 4.10 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
4.10.
(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.
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Page 81 of 110 Pages
4.11 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.
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Page 82 of 110 Pages
IN WITNESS WHEREOF, the Parties have executed this Standstill Agreement
as of the date first written above.
The Shareholders
----------------
ALFA TELECOM LIMITED
By______________________
Name:
Title:
▇▇▇ TELENOR EAST INVEST AS
By______________________
Kjell ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact
OPEN JOINT STOCK COMPANY
ROSTELECOM
By______________________
Name:
Title:
CAPITAL INTERNATIONAL GLOBAL
EMERGING MARKETS PRIVATE EQUITY
FUND, L.P.
By______________________
Name:
Title:
FIRST NIS REGIONAL FUND SICAV
By______________________
Name:
Title:
14
Page 83 of 110 Pages
CAVENDISH NOMINEES LIMITED
By______________________
Name:
Title:
The Company
GOLDEN TELECOM, INC.
By______________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President and Chief Executive
Officer
15
