EXECUTION COPY
SHARE PURCHASE AGREEMENT
DATED
OCTOBER 16, 2001
BY AND AMONG
GLOBAL TELESYSTEMS, EUROPE HOLDINGS B.V.
AS SELLER,
AND
CAVENDISH NOMINEES LIMITED
AS PURCHASER
TABLE OF CONTENTS
-----------------
1. Purchase and Sale of Shares; Closing and Manner of Payment...........1
1.1 Agreement to Purchase and Sell Shares...........................1
1.2 Purchase Price..................................................1
1.3 Manner of Payment of Purchase Price.............................2
1.4 Manner of Delivery of Shares...................................2
1.5 Time and Place of Closing.......................................2
2. Representations and Warranties........................................2
2.1 General Statement...............................................2
2.2 Representations and Warranties of Purchasers....................2
2.3 Representations and Warranties of Seller........................4
3. Covenants.............................................................7
3.1 Cooperation.....................................................7
3.2 Public Announcements............................................8
4. Closing Conditions....................................................8
4.1 Conditions Precedent to the Obligations of All Parties..........8
5. Deliveries at Closing................................................10
6. Survival of Representations and Warranties...........................12
7. Termination rights...................................................12
7.1 Termination....................................................12
7.2 Procedure and Effect of Termination............................13
8. Miscellaneous........................................................13
8.1 Amendment and Modification.....................................13
8.2 Benefit and Assignment.........................................13
8.3 No Third-Party Beneficiaries...................................14
8.4 Entire Agreement...............................................14
8.5 Expenses.......................................................14
8.6 Headings.......................................................14
8.7 Choice of Law, Arbitration.....................................14
8.8 Notices........................................................14
8.9 Counterparts...................................................16
8.10 Currency.......................................................16
EXHIBITS
--------
Exhibit A Waivers by Alfa, Capital and NIS Fund of pre-emptive rights under
Stock Option Agreements
SHARE PURCHASE AGREEMENT
------------------------
This SHARE PURCHASE AGREEMENT (the "AGREEMENT") is made, executed and
delivered as of October 16, 2001 by and between Global TeleSystems Europe
Holding B.V., a Dutch Limited liability company (Global TeleSystems Europe
Holdings B.V. and its permitted successors or assigns hereunder, the
"SELLER"), and Cavendish Nominees Limited, a limited liability company
organized and registered under the laws of Guernsey, (herein the
"Purchaser").
WITNESSETH:
----------
WHEREAS, Seller owns beneficially and of record 588,479 shares of the
common stock, par value $0.01 per share (the "SHARES"), of Golden Telecom,
Inc., a Delaware corporation ("GTI" or the "COMPANY");
WHEREAS, Seller wishes to sell the Shares to Purchaser and Purchaser
wishes to purchase the Shares from Seller on the terms and subject to the
conditions herein contained;
WHEREAS, pursuant to Stock Option Agreements dated May 11, 2001
between the Seller and Alfa Bank Holdings Limited ("ALFA"), the Seller and
Capital International Global Emerging Markets Private Equity Fund, L.P.
("CAPITAL") and the Seller and Purchaser and First NIS Regional Fund, SICAV
("NIS FUND") (collectively the "OPTION AGREEMENTS"), Alfa, Capital and NIS
Fund acquired certain pre-emptive rights to purchase a pro rata portion of
the Shares;
WHEREAS, Alfa, Capital and NIS Fund have agreed to waive their rights
to acquire the Shares as evidenced by the Waivers set forth in Exhibit A.
AGREEMENTS:
----------
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
1. Purchase and Sale of Shares; Closing and Manner of Payment
----------------------------------------------------------
1.1 Agreement to Purchase and Sell Shares. On the terms and subject to
the conditions contained in this Agreement, the Purchaser shall purchase
from Seller, and Seller shall sell to Purchaser the Shares, which shall
upon such sale be fully paid and non-assessable and free and clear of all
liens, encumbrances, proxies, voting trusts, voting agreements, adverse
claims, contractual restrictions on transfer or any other charges
(collectively, the "CLAIMS"), except for the restrictions imposed by the
Shareholders Agreement dated May 11, 2001 among Seller, Purchaser, the
Company, Alfa, Capital, and NIS Fund (the "NEW SHAREHOLDERS AGREEMENT").
1.2 Purchase Price. The purchase price of the Shares (the "PURCHASE
PRICE") shall be $10.25 per Share, for a total purchase price of
$6,031,909.70.
1.3 Manner of Payment of Purchase Price. The Purchase Price shall be
paid or satisfied at the Closing (as herein after defined) by wire transfer
of immediately available funds to such bank account or accounts as Seller
shall designate by written notice delivered to Purchaser not later than two
(2) business days prior to the Closing.
1.4 Manner of Delivery of Shares. At the Closing, the Seller shall
deliver to the Purchaser certificates evidencing the Shares endorsed in
blank, or accompanied by valid stock powers duly executed in blank, in
proper form for transfer.
1.5 Time and Place of Closing. The transactions contemplated by this
Agreement, including, without limitation, the sale and purchase of the
Shares, shall be consummated (the "CLOSING") at Shearman & Sterling, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within twelve (12) business days of the date
hereof, or on such other date, and at such time or place, as shall be
mutually agreed upon in writing by Seller and Purchaser. The date on which
the Closing occurs in accordance with this Agreement is referred to in this
Agreement as the "CLOSING DATE".
2. Representations and Warranties
------------------------------
2.1 General Statement. Except as expressly set forth in this
Agreement, the parties are only making the representations and warranties
to each other which are set forth in this Section 2 and no others with
respect to the matters contained herein. All such representations and
warranties are made as of the date hereof and as of the date of Closing
(the "CLOSING DATE").
2.2 Representations and Warranties of Purchaser. The Purchaser
represents and warrants to Seller as follows:
(a) The Purchaser is a limited liability company, duly organized,
validly existing and in good standing under the laws of Guernsey,
Channel Islands and has the power and authority to carry on its
business as presently conducted.
(b) The Purchaser has full corporate power and authority to enter
into and perform this Agreement. The execution and delivery by
the Purchaser of this Agreement and the performance by the
Purchaser of its obligations hereunder and thereunder have been
duly authorized and approved by all requisite corporate action.
This Agreement constitutes the valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance
with its terms except as may be limited by applicable laws
relating to bankruptcy, insolvency, reorganization, moratorium or
similar creditors' rights generally and by general principles of
equity.
(c) Neither the execution and delivery of this Agreement nor the
consummation by the Purchaser of the transactions contemplated
hereby, will (i) conflict with or result in a material breach of
any of the terms, conditions or provisions (A) of any
organizational documents of the Purchaser, or (B) of any statute
or administrative regulation typically applicable to transactions
of this type, or of any order, writ, injunction, judgment or
decree of any court or governmental authority or of any
arbitration award to which the Purchaser is a party or by which
Purchaser is bound; (ii) constitute a material default under or
give rise to a right of termination, cancellation or acceleration
of any right or obligation of the Purchaser or to a loss of any
material benefit to which Purchaser is entitled under any
provision of any unexpired, undischarged or unsatisfied written
or oral agreement, contract, indenture, mortgage, debenture, note
or other instrument binding the Purchaser or any material
license, franchise, permit or other similar authorization held by
the Purchaser, except with respect to clauses (i)(B) and (ii) for
such conflicts, defaults, or other occurrences that would not
have a material adverse effect on the Purchaser's ability to
perform its obligations hereunder or thereunder.
(d) There is no claim, litigation, proceeding or investigation
pending or, to the best of the Purchaser's knowledge, threatened,
which seeks to enjoin or prohibit, or otherwise question the
validity of, any action taken or to be taken by the Purchaser in
connection with this Agreement which would have an adverse effect
on the Purchaser's ability to perform its obligations hereunder
or thereunder.
(e) The Purchaser has sufficient cash on hand or enforceable
financial commitments from creditworthy sources to allow it to
pay the Purchase Price for the Shares, consummate the
transactions contemplated hereby, and pay all related fees and
expenses as set forth herein at Closing.
2.3 Representations and Warranties of Seller. Seller represents and
warrants to the Purchaser that:
(a) Seller is a limited liability company validly existing and in
good standing under the laws of The Netherlands and has the power
and authority to carry on its business as presently conducted.
(b) Neither the execution and delivery of this Agreement nor the
consummation by Seller of the transactions contemplated hereby,
will (i) conflict with or result in a breach of any of the terms,
conditions or provisions of (A) any organizational documents of
Seller , or (B) of any statute or administrative regulation
typically applicable to transactions of this type, or of any
order, writ, injunction, judgment or decree or any court or
governmental authority or of any arbitration award to which
Seller is a party or by which Seller is bound; (ii) other than in
connection with the Option Agreements, constitute a default under
or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Seller or to a
loss of any benefit to which the Seller is entitled under any
provision of any unexpired, undischarged or unsatisfied written
or oral agreement, contract, indenture, mortgage, debenture, note
or other instrument binding the Seller or any license, franchise,
permit or other similar authorization held by the Seller, or
(iii) result in the creation or imposition of any lien or
encumbrance on any asset of the Seller , except with respect to
clauses (i)(B), (ii) and (iii), for any conflicts, defaults or
other occurrences which would not have a material adverse effect
on Seller's ability to perform its obligations hereunder.
(c) Seller has full corporate power and authority to enter into
and perform this Agreement. The execution and delivery of this
Agreement and the performance by Seller of its obligations
hereunder have been duly authorized by all requisite corporate
action. This Agreement constitutes the valid and binding
obligation of Seller, enforceable against Seller in accordance
with its and their terms, except as maybe limited by applicable
laws relating to bankruptcy, insolvency, reorganization,
moratorium or similar rights of creditors generally and by
general principles of equity.
(d) Seller is the beneficial and record owner of the Shares, free
and clear of any Claims.
(e) Seller has not employed nor is subject to the valid claim of,
any broker, finder or other financial intermediary in connection
with the transactions contemplated by this Agreement or the
transactions contemplated hereby, who might be entitled to a fee
or commission in connection herewith or therewith.
3. Covenants
---------
3.1 Cooperation. Upon the terms and subject to the conditions hereof,
each of the parties hereto shall use its reasonable best efforts to take,
or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
by this Agreement.
3.2 Public Announcements. The parties will consult with one another
before issuing any press release or otherwise making any public statement
with respect to this Agreement, and shall not issue any such press release
or make any such public statement absent mutual agreement thereon except,
based on the advice of counsel, as required by applicable law or exchange
requirement.
4. Closing Conditions
------------------
4.1 Conditions Precedent to the Obligations of All Parties. The
respective obligations of each party shall be subject to the fulfillment or
written waiver at or prior to the Closing of each of the following
conditions:
(a) No preliminary or permanent injunction or other order, decree
or ruling issued by a court of competent jurisdiction or by an
applicable governmental, regulatory or administrative agency or
commission nor any applicable statute, rule, regulation or
executive order promulgated or enacted by any applicable
governmental authority shall be in effect which would prevent the
consummation of the transactions provided for in this Agreement.
(b) The Purchaser shall have performed in all material respects
each of its obligations under this Agreement, including without
limitation delivery of the items described in Section 5(b).
(c) Seller shall have performed in all material respects each of
its obligations under this Agreement, including without
limitation delivery of the items described in Section 5(a).
5. Deliveries at Closing
---------------------
5.1 Documents to be Delivered by the Seller. At the Closing, the
Seller will deliver or cause to be delivered to the Purchaser certificates
representing the Shares, duly endorsed (or accompanied by duly executed
stock powers);
5.2 Documents to be Delivered by the Purchaser. At the Closing,
Purchaser will deliver to the Seller the Purchase Price, in accordance with
Sections 1.2 and 1.3 hereof.
6. Survival of Representations and Warranties. Except as set forth in the
following sentence, all of the representations and warranties contained in
this Agreement or any representations and warranties contained in any
certificate, document or instrument delivered pursuant to this Agreement
shall survive for a period of six months after Closing. The Purchaser
acknowledges that Seller is in the course of a financial restructuring at
this time, a result of which may include a liquidation of Seller and the
sale of all or substantial all of its assets to a third party, against whom
Purchaser shall have no right of redress hereunder.
7. Termination Rights
------------------
7.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual written consent of the parties;
(b) by either Purchaser or Seller, if any court of competent
jurisdiction or other governmental agency of competent
jurisdiction shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement and
such order, decree, ruling or other action shall have become
final and non-appealable;
7.2 Procedure and Effect of Termination. In the event of termination
pursuant to Section 7.1 hereof, notice thereof shall forthwith be given to
the other parties hereto and this Agreement shall terminate without further
action by any of the parties hereto. If this Agreement is terminated as
provided herein, no party hereto shall have any liability or further
obligation to any other party to this Agreement; provided, however, nothing
herein will relieve any party from liability for any breach of this
Agreement, and the non-breaching party or parties will have the right to
enforce all available remedies, at law or in equity.
8. Miscellaneous
-------------
8.1 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by mutual written agreement of the parties
hereto.
8.2 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party
to this Agreement without the prior written consent of the other parties
hereto; provided, however, that Seller may, with the prior written consent
of the Purchaser (such consent not to be unreasonably withheld or
unreasonably delayed), assign its rights and obligations hereunder but only
to any direct or indirect subsidiary of Seller to which Seller proposes to
transfer the Shares, which assignment shall not relieve Seller of its
obligations hereunder.
8.3 No Third-Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto
and their respective heirs, successors and permitted assigns.
8.4 Entire Agreement. This Agreement and the exhibits and schedules
hereto, embody the entire agreement and understanding of the parties hereto
and supersede any and all prior agreements, arrangements and understandings
relating to the matters provided for herein and therein. No amendment,
waiver of compliance with any provision of condition hereof or consent
pursuant to this Agreement shall be effective unless evidenced by an
instrument in writing signed by the party against whom enforcement of any
amendment, waiver or consent is sought.
8.5 Expenses. The parties shall be responsible for the payment of
their respective expenses, including legal and accounting fees, in
connection with the preparation, negotiation and closing of this Agreement
and the transactions contemplated hereby.
8.6 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction
of the provisions of this Agreement.
8.7 Choice of Law; Arbitration. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to principles of conflicts of law. All claims or other disputes
arising out of or in connection with this Agreement will be referred to and
finally settled by arbitration under the Rules of Arbitration of the
International Chamber of Commerce (the "Rules") as follows: (i) the number
of arbitrators shall be three (to be appointed in accordance with the
Rules); (ii) the place of arbitration shall be London, England; (iii) the
language of the arbitration shall be English; and (iv) any award of the
arbitrator shall be final and binding and the parties hereby waive any
right to refer any question of law and any right of appeal on the law
and/or merits to any court.
8.8 Notices. All notices, requests, demands, letters, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a)
delivered personally, (b) mailed, certified or registered mail with postage
prepaid, (c) sent by next-day or overnight mail or delivery, or (d) sent by
fax, as follows:
(a) if to Purchaser, at:
---------------------
Cavendish Nominees Limited
c/o International Private Equity Services
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, Guernsey
Facsimile No.: 44 (0) 1481 715 219
Attn.: ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
Baring Vostok Capital Partners
7 Gasheka Street,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Facsimile No.: 7095 967 1308
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(b) if to Seller, at:
----------------
Global TeleSystems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Attn: General Counsel
with a copy to:
Shearman & Sterling
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
or to such other person or entity or address as any party shall specify by
notice in writing to the party entitled to notice. All such notices,
requests, demands, letters, waivers and other communications shall be
deemed to have been received (w) if by personal delivery on the day after
such delivery, (x) if by certified or registered mail, on the fifth
Business Day after the mailing thereof, (y) if by next-day or overnight
mail or delivery, on the day delivered or (z) if by fax, on the next day
following the day on which such fax was sent, provided that a copy is also
sent by certified or registered mail.
8.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument. This Agreement may be
executed by facsimile signatures and such signatures shall be deemed
binding for all purposes hereof, without delivery of an original signature
being thereafter required.
8.10 Currency. Unless otherwise specified in this Agreement, all
references to currency, monetary values and dollars set forth herein shall
mean United States (U.S.) dollars and all payments hereunder shall be made
in United States dollars.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
SELLER:
Global TeleSystems Europe Holdings B.V.
By: /s/
------------------------------
Its: Director
PURCHASER:
Cavendish Nominees Limited
By: /s/
------------------------------
Its: Director
EXHIBIT A
WAIVER OF PRE-EMPTION RIGHTS
We, Alfa Telecom Limited, (as the assignee of Alfa Bank Holdings Limited) a
company incorporated in the British Virgin Islands ("Alfa"), a shareholder
of Golden Telecom Inc, a company incorporated in Delaware (the "Company"),
having been informed of the proposed transfer of 588,479 shares in the
Company by Global TeleSystems Europe Holdings B.V., a Dutch limited
liability company ("GTS Europe") to Cavendish Nominees Limited, a limited
liability company organised and registered under the laws of Guernsey, DO
HEREBY unconditionally and irrevocably waive our pre-emption rights
pursuant to Section 3f(i) of the Stock Option Agreement dated 11 May 2001
between Alfa and GTS Europe or any relevant provisions of the Company's
by-laws and we hereby give our consent for the said transfer being made
without adherence to the requirements of Stock Option Agreement or the
Company's by-laws to have the shares or any of them offered to us first.
Dated this.........day of October, 2001
-----------------------------
for and on behalf of
Alfa Telecom Limited
WAIVER OF PRE-EMPTION RIGHTS
We, Capital International Global Emerging Markets Private Equity Fund,
L.P., a limited partnership organized under the laws of Delaware ("CIG"), a
shareholder of Golden Telecom Inc, a company incorporated in Delaware (the
"Company"), having been informed of the proposed transfer of 588,479 shares
in the Company by Global TeleSystems Europe Holdings B.V., a Dutch limited
liability company ("GTS Europe") to Cavendish Nominees Limited, a limited
liability company organised and registered under the laws of Guernsey, DO
HEREBY unconditionally and irrevocably waive our pre-emption rights
pursuant to Section 3f(i) of the Stock Option Agreement dated 11 May 2001
between CIG and GTS Europe and we hereby give our consent for the said
transfer being made without adherence to the requirements of Stock Option
Agreement to have the shares or any of them offered to us first.
Dated this.........day of October, 2001
-----------------------------
for and on behalf of
Capital International Global Emerging
Markets Private Equity Fund, L.P
WAIVER OF PRE-EMPTION RIGHTS
We, First NIS Regional Fund, SICAV, a private institutional fund organized
and registered under the laws of Luxembourg ("NIS Fund"), a shareholder of
Golden Telecom Inc, a company incorporated in Delaware (the "Company"),
having been informed of the proposed transfer of 588,479 shares in the
Company by Global TeleSystems Europe Holdings B.V., a Dutch limited
liability company ("GTS Europe") to Cavendish Nominees Limited, a limited
liability company organised and registered under the laws of Guernsey, DO
HEREBY unconditionally and irrevocably waive our pre-emption rights
pursuant to Section 3f(i) of the Stock Option Agreement dated 11 May 2001
between CIG and GTS Europe and we hereby give our consent for the said
transfer being made without adherence to the requirements of Stock Option
Agreement to have the shares or any of them offered to us first.
Dated this.........day of October, 2001
-----------------------------
for and on behalf of
First NIS Regional Fund, SICAV