Contract
Exhibit
99.1
FIRST AMENDMENT TO SETTLEMENT
AGREEMENT dated as of January 12, 2010 (this "Amendment") between and among
Crown Finance
Foundation, a foundation organized under the laws of Xxxxxxxxxxxx, CTF Holdings Limited, a
company organized under the laws of Gibraltar, Altimo Holdings & Investments
Ltd., a company organized under the laws of the British Virgin Islands,
Eco Telecom Limited, a
company organized under the laws of Gibraltar, Rightmarch Limited, a company
organized under the laws of Cyprus, Alpren Limited, a company
organized under the laws of Cyprus, Hardlake Limited, a company
organized under the laws of Cyprus, and Storm LLC, a limited liability
company organized under the laws of Ukraine (collectively, the "Alfa Parties" and each,
individually, an "Alfa
Party"), and Telenor
Mobile Communications AS, a company organized under the laws of Norway,
Telenor East Invest AS,
a company organized under the laws of Norway, and Telenor Consult AS, a company
organized under the laws of Norway (collectively, the "Telenor Parties" and each,
individually, a "Telenor
Party" and, together with the Alfa Parties, collectively, the "Parties" and, each,
individually, a "Party").
WITNESSETH
WHEREAS, the Parties have entered into
the Settlement Agreement dated as of October 4, 2009 (the "Agreement"); and
WHEREAS, following receipt of responses
to submissions filed with certain courts pursuant to the Agreement, the Parties
have determined that it is advisable to amend certain provisions of the
Agreement to reflect such responses;
NOW, THEREFORE, for and in
consideration of the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree, in accordance with Section 10 of the
Agreement, as follows:
1. Telenor Mobile
Communications AS v. Storm LLC, et al., 07-4974-CV (L); 08-6184-CV (CON);
08-6188-CV (CON) (the "Appeal").
(a) Notwithstanding
the Escrow Agent's filing with the United States Court of Appeals for the Second
Circuit (the "Court of
Appeals") on October 5, 2009 of a stipulation in the form of Exhibit D-1 to the
Agreement (the "Appeal
Stipulation") requesting the withdrawal from active consideration of
appeals by certain of the Alfa Parties, the Court of Appeals rejected the Appeal
Stipulation and issued decisions affirming the decisions of the United States
District Court for the Southern District of New York (the "District Court") that were the
subject of such appeals. The Parties hereby acknowledge and agree
that they will not receive a file-stamped copy of the Appeal Stipulation and do
not anticipate any further action occurring with respect to the Appeal prior to
the Closing or the earlier termination of the Agreement in accordance with its
terms.
(b) Exhibit G and Exhibit J to the
Agreement and all references to Exhibit G and Exhibit J therein are
hereby deleted.
2. Telenor East Invest AS v.
Farimex Products, Inc., et al., 08-CV-5623 (PKC) (the "Farimex
Case").
(a) Notwithstanding
the Escrow Agent's delivery on October 5, 2009 of a letter to the District Court
in the form of Exhibit
B-2 to the Agreement (the "Farimex Case Letter")
requesting a stay of proceedings in the Farimex Case, the District Court
rejected the request contained in the Farimex Case Letter. The
Parties then filed with the District Court a stipulation attached hereto as
Exhibit B-3,
which shall become new Exhibit B-3 to the
Agreement. The Parties hereby acknowledge and agree that they do not anticipate
any further action occurring with respect to the Farimex Case prior to the
Closing or the earlier termination of the Agreement in accordance with its
terms.
(b) Exhibit E-2 and Exhibit H-3 to the
Agreement and all references to Exhibit E-2 and Exhibit H-3 therein
are hereby deleted in their entirety.
3. Telenor Mobile
Communications AS v. Storm LLC, et al., 07-CV-06929 (GEL) (the "Storm
Case").
(a) Notwithstanding
the Escrow Agent’s delivery on October 5, 2009 of a letter to the District Court
in the form of Exhibit
B-1 to the Agreement (the "Storm Case Letter") requesting
a stay of proceedings in the Storm Case, the District Court rejected the request
contained in the Storm Case Letter and, in a telephone call made by the District
Court to counsel for the Telenor Parties, stated that the Storm Case was no
longer an active case and that the District Court did not intend to take any
further action in relation to the Storm Case. The Parties hereby
acknowledge and agree that they will not receive a file-stamped copy of the
Storm Case Letter and do not anticipate any further action occurring with
respect to the Storm Case prior to the Closing or the earlier termination of the
Agreement in accordance with its terms.
(b) Exhibit E-1 and Exhibit H-2 to the
Agreement and all references to Exhibit E-1 and Exhibit H-2 are
hereby deleted in their entirety.
4. Telenor East Invest AS v.
Altimo Holdings & Investments Limited, et al., 07-CV-4829 (DC) (the
"Securities
Case").
(a) Notwithstanding
the Escrow Agent's delivery on October 5, 2009 of a letter to the District Court
in the form of Exhibit
B-1 to the Agreement (the "Securities Case Letter")
requesting a stay of proceedings in the Securities Case, the District Court
rejected the request contained in the Securities Case Letter. The
Parties then filed with the District Court a stipulation in substantially in the
form attached hereto as Exhibit B-4, which
shall become new Exhibit B-4 to the
Agreement. The Parties hereby acknowledge and agree that they will
not receive a file-stamped copy of the Securities Case Letter and do not
anticipate any further action occurring with respect to the Securities Case
prior to the Closing or the earlier termination of the Agreement in accordance
with its terms.
(b) Exhibit H-1 to the
Agreement and all references to Exhibit H-1 therein
are hereby deleted in their entirety.
5. Settlement Escrow
Agreement
The
Parties agree that (a) the Escrow Agent shall not incur any liability under the
Settlement Escrow Agreement in respect of the United States Court of Appeals for
the Second Circuit and the United States District Court for the Southern
District of New York's rejection of any stipulation or letter filed with such
Court by the Escrow Agent prior to the date of this Amendment, (b) the Escrow
Agent shall be an express third party beneficiary of this Amendment and (c) all
references to the Agreement in the Settlement Escrow Agreement shall be
references to the Agreement as amended by this Amendment.
6. Governing
Law.
This
Amendment, and any dispute, controversy or claim arising out of, relating to or
in connection with this Amendment, or for the breach or alleged breach thereof,
whether in contract, in tort or otherwise, shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
any conflicts of laws or other principles thereof that would result in the
application of the laws of another jurisdiction.
7. Full Force and
Effect.
The
Agreement, as amended by this Amendment, remains in full force and effect
notwithstanding the execution by the Parties of this Amendment.
8. Defined
Terms.
All
capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Agreement.
2
9. Incorporation by
Reference.
The
provisions of Sections 8 through 17 (inclusive) of the Agreement shall be
incorporated herein by reference, mutatis mutandis, as if set
forth in full herein.
[Remainder
of Page Intentionally Left Blank]
3
IN WITNESS WHEREOF, the Parties have
executed this First Amendment to Settlement Agreement as of date first above
written.
The Alfa
Parties
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Crown
Finance Foundation
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By
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Power of Attorney dated 29 September 2009
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CTF
Holdings Limited
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By
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Director
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Altimo
Holdings & Investments Ltd.
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By
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Director
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Eco
Telecom Limited
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By
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Director
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Rightmarch
Limited
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By
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Attorney
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Alpren
Limited
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By
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Attorney
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Hardlake
Limited
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By
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Attorney
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Storm
LLC
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By
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Representative under Power of
Attorney
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4
The Telenor
Parties
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Telenor
East Invest AS
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By
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Authorized Signatory
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Telenor
Mobile Communications AS
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By
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Authorized Signatory
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Telenor
Consult AS
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By
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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Title:
Authorized Signatory
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5
Exhibit
B-3
[REQUEST
FOR STIPULATION AND ORDER DISMISSING ACTION
WITHOUT
PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Farimex
Products, Inc. (09-CV-5623-PKC)]
UNITED
STATES DISTRICT COURT
SOUTHERN
DISTRICT OF NEW YORK
TELENOR EAST INVEST
AS,
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00
Xxx. 0000 (XXX)
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Plaintiff,
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ECF
Case
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-against-
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FARIMEX PRODUCTS,
INC.,
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Defendant.
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STIPULATION
AND ORDER DISMISSING ACTION
WITHOUT
PREJUDICE AND WITH RIGHT TO RESTORE
IT IS HEREBY STIPULATED AND
AGREED, by and between the undersigned attorneys of record for all
parties herein, that the above-entitled case (the “Action”) be, and it hereby
is, dismissed without prejudice and without costs to any party as against any
other, pursuant to Federal Rule of Civil Procedure 41(a), provided, however, that either
party has the right to restore the Action to the Court’s docket in its status as
of the date of this stipulation, including the rights of the parties to pursue
all the claims and remedies sought in the Action, if the Closing of the
Transaction (as such terms are defined in the parties’ joint letter to the Court
dated October 5, 2009) does not occur within one year of the date of this
stipulation.
IT IS FURTHER STIPULATED AND
AGREED that, upon the Closing, a stipulation pursuant to Fed. R. Civ. P.
41(a), in the form previously agreed by the parties, providing for dismissal of
the Action with prejudice and without costs, will be filed with the
Court.
XXXXXX,
XXXXXXXXXX & XXXXXXXXX LLP
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By:
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Xxxxxx
X. Xxxxx
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attorneys
for Plaintiff
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Telenor
East Invest AS
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XXXXXXXX
KILL & OLICK, P.C.
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By:
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Xxxxxxx
X. Xxxx
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attorneys
for Defendant
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Farimex
Products, Inc.
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SO
ORDERED:
Hon. P.
Xxxxx Xxxxxx, U.S.D.J.
Exhibit
B-4
[REQUEST
FOR STIPULATION AND ORDER DISMISSING ACTION
WITHOUT
PREJUDICE AND WITH RIGHT TO RESTORE:
Telenor East Invest AS v. Altimo
Holdings & Investments Ltd. et al. (07-CV-4829-DC)]
UNITED
STATES DISTRICT COURT
SOUTHERN
DISTRICT OF NEW YORK
TELENOR EAST INVEST
AS,
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STIPULATION
DISMISSING
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Plaintiff,
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PROCEEDINGS
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07-CV-4829
(DC)(DCF)
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-against-
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ECF
CASE
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ALTIMO HOLDINGS &
INVESTMENTS LIMITED, ECO TELECOM LIMITED, CTF HOLDINGS LIMITED, CROWN
FINANCE FOUNDATION and RIGHTMARCH LIMITED,
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Defendant.
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STIPULATION
AND ORDER DISMISSING ACTION
WITHOUT
PREJUDICE AND WITH RIGHT TO RESTORE
IT IS HEREBY STIPULATED AND
AGREED, by and between the undersigned attorneys of record for all
parties herein, that the above-entitled case (the “Action”) be, and it hereby
is, dismissed without prejudice and without costs to any party as against any
other, pursuant to Federal Rule of Civil Procedure 41(a), provided, however, that either
party has the right to restore the Action to the Court’s docket in its status as
of the date of this stipulation, including the rights of the parties to pursue
all the claims and remedies sought in the Action, if the Closing of the
Transaction (as such terms are defined in the parties’ joint letter to the Court
dated October 5, 2009) does not occur within one year of the date of this
stipulation.
IT IS FURTHER STIPULATED AND
AGREED that, upon the Closing, a stipulation pursuant to Fed. R. Civ. P.
41(a), in the form previously agreed by the parties, providing for dismissal of
the Action with prejudice and without costs, will be filed with the
Court.
XXXXXX,
XXXXXXXXXX & XXXXXXXXX LLP
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By:
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Xxxxxx
X. Xxxxx
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attorneys
for Plaintiff
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Telenor
East Invest AS
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CRAVATH,
SWAINE & XXXXX LLP
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By:
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Xxxxxx
X. Xxxxx
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Worldwide
Plaza
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000
Xxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000-0000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attorneys
for Defendants Altimo Holdings &
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Investments
Limited, Crown Finance Foundation
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and
Rightmarch Limited
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LOVELLS
LLP
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By:
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Xxxxxx
X. Xxxxxx
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attorneys
for Defendants Eco Telecom Limited
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and
CTF Holdings Limited
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SO
ORDERED:
Xxx.
Xxxxx Xxxx, U.S.D.J.
Exhibit
B-4 to Settlement Agreement