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DATED SEPTEMBER 30, 1999
GOLDEN TELECOM, INC.
1,336,898 SHARES OF COMMON STOCK, PAR VALUE $.01 EACH
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SUBSCRIPTION AGREEMENT
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THIS AGREEMENT is made on September 30, 1999 BETWEEN:
(1) Golden Telecom, Inc., a Delaware corporation (the "COMPANY"); and
(2) European Bank for Reconstruction and Development ("INVESTOR").
WHEREAS:
(A) The Company is conducting an initial public offering (the "IPO") of
4,650,000 shares of its Common Stock, par value $.01 per share (the
"Common Stock").
(B) In connection with this Agreement, Investor proposes to subscribe for,
and the Company proposes to issue to Investor, 1,336,898 shares of
Common Stock (the "Shares") concurrently with the IPO.
(C) Investor intends to pay for the Shares purchased from the Company with
$15,000,000 in cash.
(D) The Company has filed with the U.S. Securities and Exchange Commission
a registration statement on Form S-1, File No. 333-82791 (the "Form
S-1"), relating to the shares of Common Stock to be offered and sold in
the IPO and to the other securities to be offered and sold concurrently
with the IPO, including the Shares.
(E) Investor has received (i) a copy of the preliminary prospectus, dated
September 13, 1999, and (ii) a copy of the prospectus, dated September
30, 1999 (the "Prospectus"), each relating to the Company and its
issuance of shares of Common Stock.
IT IS AGREED as follows:
1. INTERPRETATION
(1) In this Agreement (including the Recitals):
"CHARTER" has the meaning given to it in Section 4(2)(b) of this
Agreement;
"CLOSING" means the sale of the Shares by the Company to Investor;
"COMMON STOCK" has the meaning given to it in Recital (A);
"COMPANY" has the meaning given to it in introductory clause (1) of
this Agreement;
"FORM S-1" has the meaning given to it in Recital (D);
"INVESTOR" has the meaning given to it in introductory clause (2) of
this Agreement;
"IPO" has the meaning given to it in Recital (A);
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"PROSPECTUS" has the meaning given to it in Recital (E);
"PURCHASE PRICE" means $15,000,000 in cash; and
"SHARES" has the meaning given to it in Recital (B).
(2) The headings in this Agreement do not affect its interpretation.
2. SUBSCRIPTION
Subject to the terms and conditions of this Agreement, Investor agrees
to subscribe for the Shares, and the Company agrees to issue and sell
the Shares to Investor.
3. CLOSING
(1) At 9:00 A.M. (New York time) on October 5, 1999 or at such other time
and/or date as the Closing occurs:
(a) the Company shall issue the Shares and shall deliver a
certificate, in definitive form and registered in such name(s)
and in such denomination(s) as Investor shall request in
writing not later than two full business days prior to the
Closing, evidencing the Shares for the account(s) of Investor,
against payment of the Purchase Price; and
(b) Investor shall pay to the Company the Purchase Price in
respect of the Shares in Federal (same day) funds.
(2) A certificate or certificates for the Shares to be delivered to
Investor shall be in definitive form and delivered to Investor at the
offices of Shearman & Sterling, Washington, DC, for the accounts of
Investor on the Closing Date in accordance with the instructions
delivered in accordance with clause 3(1)(a) above.
4. REPRESENTATIONS AND WARRANTIES
(1) The Company represents, warrants and undertakes to Investor as follows:
(a) that the Recitals relating to the Company are in every
material respect true and accurate and not misleading;
(b) that the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware with full power and authority to own,
lease and operate its properties and assets and conduct its
business materially as described in the Prospectus;
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(c) that the execution of this Agreement by the Company has been
duly authorized by the Company, and this Agreement constitutes
a legal, valid and binding obligation of the Company;
(d) that the Shares have been duly authorized by the Company;
(e) that the Shares will, on issue and receipt of payment therefor
in accordance with the terms of this Agreement, be validly
issued in accordance with the law and regulations of the State
of Delaware, fully paid and non-assessable and free from all
liens, charges, encumbrances and other third party rights; and
(f) that (i) the Form S-1, when it became effective, did not
contain, and as amended or supplemented, if applicable, will
not contain, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(ii) the Prospectus will not contain, and, as amended or
supplemented, if applicable, will not contain, any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this subclause 4(1)(f) do not apply to statements or omissions
in the Form S-1 or the Prospectus based upon information
relating to Investor furnished to the Company by Investor.
(2) Investor represents, warrants and undertakes to the Company as follows:
(a) that the Recitals relating to Investor are in every material
respect true and accurate and not misleading;
(b) that Investor is an international organization duly
established and existing under the Agreement Establishing the
European Bank for Reconstruction and Development of 29 May
1990 among the member countries and international
organizations signatory thereto (the "Charter") with full
power and authority to subscribe for the Shares as
contemplated by this Agreement;
(c) that the execution of this Agreement by Investor has been duly
authorized by Investor, and this Agreement constitutes a
legal, valid and binding obligation of Investor; and
(d) that Investor is acquiring the Shares for its own account and
without a view to the public distribution of the Shares or any
interest therein.
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5. CONDITIONS PRECEDENT
The obligations of Investor to purchase the Shares are conditional upon
the consummation of the IPO in all material respects as described in
the Prospectus.
6. UNDERTAKINGS
(1) For a period of 180 days after the date of the Prospectus, Investor
will not offer, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any Shares, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without
the prior written consent of Deutsche Bank AG London, which consent
shall not be unreasonably withheld, it being understood that the
restrictions in this clause (6)(2) do not apply to any shares of Common
Stock other than the Shares acquired pursuant to this Agreement.
7. NOTICES
Any notice or notification in any form to be given under this Agreement
may be delivered in person or sent by telex, facsimile or telephone
(subject in the case of a communication by telephone to confirmation by
telex or facsimile) addressed to:
IN THE CASE OF THE COMPANY:
Golden Telecom, Inc.
12, Xxxxxxxxxxxxxxxxxx
Xxxxxx, Xxxxxx 000000
Telephone: x0-000-000-0000
Facsimile: x0-000-000-0000
Attention: General Counsel
WITH A COPY TO:
Global TeleSystems Group, Inc.
0000 Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: x0-000-000-0000
Attention: General Counsel
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IN THE CASE OF INVESTOR:
European Bank for Reconstruction and Development
Xxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: x00-00-0000-0000
Attention: Director, Telecommunications, Informatics &
Media Team
Any such notice shall take effect, in the case of delivery, at the time
of delivery and, in the case of telex or facsimile, at the time of
dispatch.
8. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement and
any party may enter into this Agreement by executing a counterpart.
9. GOVERNING LAW
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
10. PRIVILEGES AND IMMUNITIES OF THE BANK
Nothing in this Agreement shall be construed as a waiver, renunciation
or other modification of any immunities, privileges or exemptions of
Investor accorded under the Charter, any international convention or
any applicable law.
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IN WITNESS of which this Agreement has been executed on the date
written above.
GOLDEN TELECOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: General Counsel and Secretary
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
By: /s/ Franck Noiret
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Name: Franck Noiret
Title: Principal Banker, Attorney-in-Fact
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