Exhibit J
CONFORMED COPY
SHARE PURCHASE AGREEMENT
dated as of
February 6, 2004
by and between
CAPITAL INTERNATIONAL GLOBAL EMERGING MARKETS
PRIVATE EQUITY FUND, L.P.,
as Seller,
and
XXX TELENOR EAST INVEST AS,
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 ......................... 1
1.4 Manner of Delivery of Shares ................................ 1
1.5 Time and Place of Closing ................................... 2
2. Representations and Warranties ....................................... 2
2.1 General Statement ........................................... 2
2.2 Representations and Warranties of Purchaser ................. 2
2.3 Representations and Warranties of Seller .................... 3
3. Covenants ............................................................ 4
3.1 Cooperation ................................................. 4
3.2 Public Announcements ........................................ 4
4. Closing Conditions ................................................... 4
4.1 Conditions Precedent to the Obligations of Parties .......... 4
5. Deliveries at Closing ................................................ 4
6. Survival of Representations and Warranties ........................... 5
7. Termination rights ................................................... 5
7.1 Termination ................................................. 5
7.2 Procedure and Effect of Termination ......................... 5
8. Miscellaneous ........................................................ 5
8.1 Amendment and Modification .................................. 5
8.2 Benefit and Assignment ...................................... 5
8.3 No Third-Party Beneficiaries; Obligations Several ........... 5
8.4 Entire Agreement ............................................ 5
8.5 Expenses .................................................... 6
8.6 Headings .................................................... 6
8.7 Choice of Law, Arbitration .................................. 6
8.8 Notices ..................................................... 6
8.9 Counterparts ................................................ 8
8.10 Currency .................................................... 8
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SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "AGREEMENT") is made, executed and
delivered as of February 6, 2004 by and between Capital International Global
Emerging Markets Private Equity Fund, L.P., a Delaware limited partnership (the
"SELLER"), and Xxx Telenor East Invest AS, a company organized under the laws of
Norway (the "PURCHASER" and, together with the Seller, collectively, the
"PARTIES" and, each individually, a "PARTY").
WITNESSETH
WHEREAS, the Seller owns beneficially 40,000 shares of the common stock,
par value $0.01 per share (the "SHARES"), of Golden Telecom, Inc., a Delaware
corporation ("GTI" or the "COMPANY"); and
WHEREAS, the Seller wishes to sell the Shares to the Purchaser and the
Purchaser wishes to purchase the Shares from the Seller on the terms and subject
to the conditions herein contained;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, the Parties hereby agree as follows:
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 the
Seller, and the Seller shall sell to the 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 (a) the Shareholders Agreement
dated as of August 19, 2003 among Cavendish Nominees Limited and First NIS
Regional Fund SICAV, the Seller, Alfa Telecom Limited ("ALFA"), the Purchaser
and the Company (the "SHAREHOLDERS AGREEMENT"), (b) Claims arising by virtue of
actions of the Purchaser and (c) applicable law. The Purchaser shall not be
obligated to purchase any of the Shares at the Closing unless all of the Shares
have been delivered by the Sellers in accordance with Section 1.4 hereof.
1.2 Purchase Price. The purchase price of the Shares shall be US$29.25 per
Share, for a total purchase price of US$1,170,000 (the "PURCHASE PRICE").
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 the Seller shall
designate by written notice delivered to the Purchaser prior to the Closing.
1.4 Manner of Delivery of Shares. Following receipt by the Seller of the
Purchase Price, the Seller shall deliver to such person as the Purchaser may
designate in writing certificates evidencing the Shares, accompanied by duly
executed stock powers, in proper form for transfer of such shares to the
Purchaser.
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
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"CLOSING") at Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, 00 Xxxx Xxxx, Xxxxxx,
XX00 0XX, Xxxxxxx on February 11, 2004, or on such other date, and at such time
or place, as shall be mutually agreed upon in writing by the Seller and the
Purchaser. Notwithstanding the foregoing, it is understood and agreed that the
delivery of the certificates representing the Shares and accompanying stock
powers shall take place in New York, New York in accordance with Section 5.1
hereof. 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 and
the Investor Letter dated the date hereof in the form attached hereto as Exhibit
A, addressed to the Seller and executed by the Purchaser (the "INVESTOR
LETTER"), 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 Closing Date.
2.2 Representations and Warranties of Purchaser. The Purchaser represents
and warrants to the Seller as follows:
(a) The Purchaser is a company, duly organized, validly existing and
in good standing under the laws of Norway 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 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 breach of any of the
terms, conditions or provisions of (A) any organizational documents
of the Purchaser, (B) any contract or agreement of the Purchaser to
which the Company is a party or is bound, or of which the Company is
a beneficiary, or (C) any law, rule, regulation, statute or
administrative order 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 the Purchaser is bound; or (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 the
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)(C) and (ii) for such conflicts,
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defaults or other occurrences that would not have a material adverse
effect on the Purchaser's ability to perform its obligations
hereunder.
(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.
(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 the Seller. The Seller represents
and warrants to the Purchaser that:
(a) The Seller is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization 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 the 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 the
Seller, (B) subject to the waiver described in Section 4.1(d), any
contract or agreement of the Seller to which the Company is a party
or is bound, or of which the Company is a beneficiary, or (C) any
law, rule, regulation, statute or administrative order 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 Seller is a party
or by which the Seller is bound; or (ii) constitute a material
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 material 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 material 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)(C), (ii) and (iii), for such conflicts, defaults or
other occurrences that would not have a material adverse effect on
the Seller's ability to perform its obligations hereunder.
(c) The Seller has full partnership power and authority to enter
into and perform this Agreement. The execution and delivery of this
Agreement and the performance by the Seller of its obligations
hereunder have been duly authorized by all requisite partnership
action. This Agreement constitutes the valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its
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.
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(d) The Seller is the beneficial owner of the Shares, free and clear
of any Claims other than those listed in Section 1.1 hereof.
(e) The 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 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 stock exchange requirement.
4. Closing Conditions
4.1 Conditions Precedent to the Obligations of the Parties. The respective
obligations of each Party shall be subject to the fulfilment 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 5.2.
(c) The 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 5.1.
(d) The Purchaser shall have delivered to the Seller a waiver, in
form and substance reasonably satisfactory to the Seller and duly
executed by Alfa, waiving Alfa's rights under Section 4.6 of the
Shareholders Agreement.
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5. Deliveries at Closing
5.1 Documents to be Delivered by the Seller. Upon receipt of the Purchase Price,
the Seller will deliver or cause to be delivered to a person designated in
writing by the Purchaser in New York, New York, certificates representing the
Shares, accompanied by duly executed stock powers.
5.2 Documents to be Delivered by the Purchaser. At the Closing, the Purchaser
will deliver to the Seller the Purchase Price, in accordance with Sections 1.2
and 1.3 hereof, and a copy of the Investor Letter, duly executed by the
Purchaser.
6. Survival of Representations and Warranties. 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.
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; or
(b) by either the Purchaser or the Sellers, 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(b) hereof, notice thereof shall forthwith be given to
the other Party and this Agreement shall terminate without further action by any
of the Parties. If this Agreement is terminated as provided herein, no Party
shall have any liability or further obligation to any other Party; provided,
however, that nothing herein will relieve any Party from liability for any
breach of this Agreement, and the non-breaching Party 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.
8.2 Benefit and Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Parties 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 without the prior written
consent of the other Party.
8.3 No Third-Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity other than the Parties and their respective
heirs, successors and permitted assigns.
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8.4 Entire Agreement. This Agreement and the Investor Letter embody the
entire agreement and understanding of the Parties 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
any principles of conflicts of law which would result in the application of the
laws of another jurisdiction. 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 the Purchaser, at:
Xxx Telenor East Invest AS
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
Fax No. x00 00 000 000
Attn: Tron Xxxxx
with a copy to:
Advokatene i Xxxxxxx
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
Fax No. x00 00 000 000
Attn: Xxxxx Xxxxxxx
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(b) if to the Seller, at:
c/o Capital International Global Emerging Markets
Private Equity Fund, L.P.
000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx
Xxxx, XX 00000-0000 X.X.X.
Facsimile No.: x000 (000) 000-0000
Attention: Xxx Xxxxx
with a copy to:
Capital International Limited
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
U.K.
Facsimile No.: x00 (00) 0000-0000
Attention: Xxx Xxxxxx
and to:
Capital Research International Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
U.K.
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxxx Xxxxxxx
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
U.K.
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxxxx
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
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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.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first above written.
SELLER
CAPITAL INTERNATIONAL GLOBAL EMERGING
MARKETS PRIVATE EQUITY FUND L.P.
By Capital International Investments, LLC,
as General Partner
By Capital International, Inc.,
as Managing Member
By /s/Xxxxxxxxxxx X. Xxxx
----------------------
Vice President
PURCHASER
XXX TELENOR EAST INVEST AS
By /s/ Tron Xxxxx
--------------
Attorney-in-Fact
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Exhibit A
Xxx Telenor East Invest AS
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
February 6, 2004
Capital International Global
Emerging Markets Private Equity Fund, L.P.
000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx
Xxxx, XX 00000-0000
U.S.A.
INVESTOR LETTER
Ladies and Gentlemen:
RE: PURCHASE FROM CAPITAL INTERNATIONAL GLOBAL EMERGING MARKETS PRIVATE EQUITY
FUND, L.P. (THE "SELLER") OF COMMON STOCK (THE "SECURITIES") OF GOLDEN TELECOM
INC. (THE "COMPANY")
In connection with the purchase of Securities from the Seller, the undersigned
represents, warrants, agrees and acknowledges as follows:
1 The undersigned is acquiring the Securities for its own account, for
investment and not with a view to the distribution thereof in violation of
the Securities Act of 1933, as amended (the "Securities Act"), or
applicable state securities laws.
2 The undersigned has two representatives, and CIG has one representative,
on the Board of Directors of the Company. As a result, the undersigned and
CIG have, and have access to, the same information concerning the Company
and its affiliates, which information may include non-public information
concerning the Company and its affiliates. In addition, the undersigned
has had an opportunity to ask questions of, and receive answers from, a
person or persons acting on behalf of the Company, concerning the terms
and conditions of an investment in shares of common stock of the Company.
The undersigned has independently and without reliance on CIG, and based
on such information as the undersigned has deemed appropriate in its
independent judgment, made its own analysis and decision to purchase
additional Securities from CIG and is not relying on any representation or
warranty, express or implied, by CIG regarding its decision to enter into
such purchase transaction. The undersigned has such knowledge and
experience in financial and business matters that it is capable of
evaluating the risks and merits of this investment.
3 The undersigned has the ability to bear the economic risk of the
undersigned's investment in the Securities, has adequate means of
providing for its current and contingent needs, has no need for liquidity
with respect to its investment in the Securities, and is able to sustain a
complete loss of its investment in the Securities.
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4 The jurisdiction in which any offer to purchase Securities hereunder was
made to or accepted by the undersigned is the jurisdiction shown as the
undersigned's address on the cover letter which accompanied this investor
letter.
5 The undersigned satisfies any and all standards for investors in
investments of the type subscribed for herein imposed by the jurisdiction
of the undersigned's residence or otherwise.
6 The undersigned understands that (i) the Securities have not been
registered under the Securities Act or applicable state securities laws by
reason of their issuance by the Company to the Seller and their transfer
from the Seller to the undersigned in transactions exempt from the
registration requirements of the Securities Act and applicable state
securities laws, and that they bear a legend to that effect, and (ii) the
Securities must be held by the undersigned indefinitely unless a
subsequent disposition thereof is registered under the Securities Act and
applicable state securities laws or is exempt from registration.
7 The undersigned understands that the exemption from registration afforded
by Rule 144 (the provisions of which are known to the undersigned)
promulgated under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 may only afford the
basis for sales of Securities acquired hereunder in limited amounts.
8 Either (A) the undersigned is an "accredited investor" (as defined in Rule
501(a) of Regulation D promulgated under the Securities Act) or (B) (i)
the undersigned is not a U.S. person (as such term is defined in
Regulation S under the Securities Act) and is not acquiring the Securities
for the account or benefit of any U.S. person; (ii) the undersigned
acknowledges and agrees that the sale of the Securities by the Seller to
the undersigned is made pursuant to, and the Securities may not be offered
or resold within the United States by the undersigned or any other
beneficial owner of the Securities except pursuant to, the registration
requirements of the Securities Act or pursuant to an exemption therefrom;
and (iii) the undersigned agrees not to engage in hedging transactions
with regard to the Securities except in compliance with the Securities
Act.
9 The undersigned has engaged Xxxxxx Xxxxxxx as its investment banker in
connection with transactions involving shares of common stock of the
Company, including the Securities. The undersigned will be solely
responsible for any fees or commissions payable to Xxxxxx Xxxxxxx, and the
undersigned has not incurred any actual or potential liability or
obligation, whether direct or indirect, for any brokerage fees,
commissions or finders' fees in connection with the purchase of Securities
for which the Seller would be liable.
10 The undersigned is not relying on the Seller or the Seller's directors and
officers or any of their respective affiliates with respect to individual
legal, tax and other economic considerations involved in this investment.
The undersigned acknowledges that it has made and is solely responsible
for making its own independent evaluation of the economic and other risks
involved in investing in the Securities.
11 The undersigned acknowledges and understands that any certificate
evidencing the Securities will bear a legend to the effect of the
foregoing restrictions.
12 The undersigned understands that the foregoing representations,
warranties, agreements and acknowledgements are required in connection
with United States and other securities laws and that the Seller and its
affiliates and others will rely upon the truth and accuracy of the
foregoing representations, warranties, agreements and acknowledgements.
The undersigned irrevocably authorises the Seller to produce this letter
to any interested party in any administrative or legal proceeding or
official enquiry with respect to the matter set forth therein.
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Very truly yours,
Xxx Telenor East Invest AS
By ____________
Tron Xxxxx
Attorney-in-Fact
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