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EXHIBIT 10.1
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of ____________, 1999, among
Global TeleSystems Group, Inc., a Delaware corporation ("GTS"); GTS Equipment
Co., a Delaware corporation ("GTS Equipment"); GT Equipment Co., a Delaware
corporation ("GT Equipment"); GTS Finance, Inc., a Delaware corporation ("GTS
Finance"); ____________, a Delaware corporation ("GTS New Finance"); and Golden
Telecom, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, GTS desires to contribute, transfer and assign to the
Company, and the Company desires to acquire from GTS, all right, title and
interest of GTS in and to the capital stock (the "Stock") of the Contributed
Subsidiaries (as such term is hereinafter defined), upon the terms and subject
to the conditions set forth herein;
WHEREAS, in consideration for the contribution and transfer by
GTS of the Stock to the Company, the Company agrees to issue to GTS 10,599,900
shares of the common stock of the Company (the "Shares");
WHEREAS, GTS Equipment desires to transfer the Russian Assets
and Liabilities to GT Equipment, and GT New Equipment desires to acquire the
Russian Assets and Liabilities;
WHEREAS, GTS Finance desires to transfer the Non-Russian
Assets and Liabilities to GTS New Finance, and GTS New Finance desires to
acquire the Non-Russian Assets and Liabilities; and
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements and covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. The following terms shall
have the meanings defined for such terms in the Sections of this Agreement set
forth below:
"Action" means any action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
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"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" means this Contribution Agreement, including any
amendments hereto and each Schedule and Exhibit attached hereto.
"Contributed Subsidiaries" means the corporations, limited
liability companies, partnerships, associations and other entities specified in
Schedule I.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement, or restriction of any
kind, including, without limitation, any arrangement, restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"Governmental Authority" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, requirement or rule of common law.
"Non-Russian Assets and Liabilities" means the assets and
liabilities contained in Schedule III to this Agreement.
"Person" means any individual, partnership, limited liability
company, firm, corporation, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Russian Assets and Liabilities" means the assets and
liabilities contained in Schedule II to this Agreement.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
SECTION 1.02. Other Defined Terms. The following terms shall
have meanings defined for such terms in the Sections of this Agreement set forth
below:
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Term Section
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Shares Recitals
Stock Recitals
ARTICLE II
CONTRIBUTION OF STOCK; ISSUANCE OF SHARES
SECTION 2.01. Contribution, Transfer and Assignment of Stock.
GTS does hereby sell, assign, transfer, convey, grant, bargain, set over,
release, deliver and confirm unto the Company, its successors and permitted
assigns, as a capital contribution, the entire right, title and interest of GTS
in and to the Stock.
SECTION 2.02. Issuance of Shares. In exchange for the Stock,
the Company shall issue to GTS, effective as of the date hereof, the Shares. The
Company agrees to cause a certificate for such Shares to be issued to GTS upon
consummation of the transactions contemplated by this Agreement. Such Shares,
when issued, will be fully paid and non-assessable.
SECTION 2.03. Transfer of Russian Assets and Liabilities. GTS
Equipment does hereby transfer, assign, convey and deliver to GT Equipment all
the Russian Assets and Liabilities. GT New Equipment does hereby assume, all
rights and obligations relating to the Russian Assets and Liabilities.
SECTION 2.04. Transfer of Non-Russian Assets and Liabilities.
GTS Finance does hereby transfer, assign, convey and deliver to GTS New Finance
all the Non-Russian Assets and Liabilities. GTS New Finance does hereby assume,
all rights and obligations relating to the Non-Russian Assets and Liabilities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GTS
GTS represents and warrants as follows:
SECTION 3.01. Incorporation and Authority. Each of GTS, GTS
Equipment, GTS Finance and GTS New Finance is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
and has all necessary corporate power and authority to enter into this
Agreement, to carry out its respective obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
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Agreement by each of GTS, GTS Equipment, GTS Finance and GTS New Finance, the
performance by each such company of its respective obligations hereunder and the
consummation by each such company of the transfers contemplated hereby have been
duly authorized by all requisite corporate action on the part of each such
company. This Agreement has been duly executed and delivered by each of GTS, GTS
Equipment, GTS Finance and GTS New Finance, and (assuming due authorization,
execution and delivery by the Company and GT Equipment) this Agreement
constitutes the legal, valid and binding obligation of each such company,
enforceable in accordance with its terms.
SECTION 3.02. Incorporation and Qualification of the
Contributed Subsidiaries. Each Contributed Subsidiary is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation.
SECTION 3.03. Stock of the Contributed Subsidiaries. The Stock
has been duly authorized and validly issued and is fully paid and was not issued
in violation of any pre-emptive rights. GTS beneficially owns the Stock free and
clear of Encumbrances, except for Encumbrances arising out of, under or in
connection with this Agreement or created by or through the Company or any of
its subsidiaries. There are no voting trusts, stockholder agreements, proxies or
other agreements in effect with respect to the voting or transfer of the Stock,
except the Shareholders' Agreement, dated as of the date hereof, between GTS and
the Company. Upon payment for the Stock as contemplated by this Agreement, the
Company will acquire from GTS good and marketable title to the Stock, free and
clear of all Encumbrances, except Encumbrances arising by or through the Company
or any of its subsidiaries.
SECTION 3.04. No Conflict. The execution, delivery and
performance of this Agreement by each of GTS, GTS Equipment, GTS Finance and GTS
New Finance does not and will not (a) violate or conflict with the certificate
of incorporation or by-laws of any such company, (b) conflict with or violate
any material Law or Governmental Order applicable to any such company or (c)
result in any breach of, or constitute a default (or event which with the giving
of notice or lapse of time, or both, would become a default) under, or give to
any Person any rights of termination, amendment, acceleration or cancellation,
or give to any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments under, or result in the creation
of any Encumbrance on any Stock pursuant to, any note, bond, contract, license,
permit, franchise or other instrument to which any such company is a party or by
which any of such Stock is bound or affected, except as would not, individually
or in the aggregate impair the ability of each such company to consummate the
contribution and transfer of the Stock to the Company and the Russian Assets and
Liabilities to GT Equipment, each as contemplated by this Agreement.
SECTION 3.05. Consents and Approvals. The execution and
delivery of this Agreement by GTS, GTS Equipment, GTS Finance and GTS New
Finance do not, and the
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performance of this Agreement by each such company will not, require any
consent, approval, authorization or other action by, or filing with or
notification to, any Governmental Authority.
SECTION 3.06. Securities Matters. GTS understands that the
issuance and sale of the Shares hereunder is intended to be exempt from the
registration requirements of the Securities Act, pursuant to Section 4(2)
thereof. The Shares are being acquired by GTS for its own account and without a
view to the public distribution of the Shares or any interest therein. GTS has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investments in the Shares,
and GTS is capable of bearing the economic risks of such investments, including
a complete loss of its investment in the Shares. In evaluating the suitability
of an investment in the Shares, GTS has relied solely upon the representations,
warranties, covenants and agreements made by the Company herein and not upon any
other representations or other information (whether oral or written and
including any projections or supplemental data) made or supplied by or on behalf
of the Company or any of its Affiliates, employees, agents or other
representatives. GTS understands and agrees that it may not sell or dispose of
any of the Shares other than pursuant to a registered offering or in a
transaction exempt from the registration requirements of the Securities Act.
Notwithstanding the foregoing, GTS and the Company have entered into a
Registration Rights Agreement on the date hereof, relating to registration
rights over the Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows:
SECTION 4.01. Incorporation and Authority. Each of the Company
and GT Equipment is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and has all necessary
corporate power and authority to enter into this Agreement, to carry out its
respective obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by each of the Company and
GT Equipment, the performance by each such company of its respective obligations
hereunder and the consummation by each such company of the transfers
contemplated hereby have been duly authorized by all requisite corporate action
on the part of each such company. This Agreement has been duly executed and
delivered by each of the Company and GT Equipment, and (assuming due
authorization, execution and delivery by GTS, GTS Equipment, GTS Finance and GTS
New Finance) this Agreement constitutes the legal, valid and binding obligation
of each such company, enforceable in accordance with its terms.
SECTION 4.02. No Conflict. The execution, delivery and
performance of this Agreement by each of the Company and GT Equipment does not
and will not (a) violate or
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conflict with the charter or other constitutive documents or by-laws of any such
company, (b) conflict with or violate any material Law or Governmental Order
applicable to any such company, (c) result in any breach of, or constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, or give to any Person any rights of termination,
amendment, acceleration or cancellation, or give to any Person any additional
rights or entitlement to increased, additional, accelerated or guaranteed
payments under, or result in the creation of any Encumbrance on any Shares
pursuant to, any note, bond, contract, license, permit, franchise or other
instrument to which any such company is a party or by which any such Shares are
bound or affected, except as would not, individually or in the aggregate impair
the ability of each such company to consummate the contribution and transfer of
the Shares to GTS and the Non-Russian Assets and Liabilities to GTS New Finance,
each as contemplated by this Agreement.
SECTION 4.03. Consents and Approvals. The execution and
delivery of this Agreement by each of the Company and GT New Equipment do not,
and the performance of this Agreement by each such company will not, require any
consent, approval, authorization or other action by, or filing with or
notification to, any Governmental Authority.
SECTION 4.04. Securities Matters. The Company understands that
the offering and sale of the Stock hereunder is intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended, (the
"Securities Act"), pursuant to Section 4(2) thereof. The Stock is being acquired
by the Company for its own account and without a view to the public distribution
of the Stock or any interest therein. The Company has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investments in the Stock, and the Company is capable
of bearing the economic risks of such investments, including a complete loss of
its investment in the Stock. In evaluating the suitability of an investment in
the Stock, the Company has relied solely upon the representations, warranties,
covenants and agreements made by GTS herein and not upon any other
representations or other information (whether oral or written and including any
projections or supplemental data) made or supplied by or on behalf of GTS or any
of its Affiliates, employees, agents or other representatives. The Company
understands and agrees that it may not sell or dispose of any of the Stock other
than pursuant to a registered offering or in a transaction exempt from the
registration requirements of the Securities Act.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.01. Further Assurances. The parties hereto agree to
perform such other acts and to execute, acknowledge and/or deliver such other
instruments, documents and other materials, all at the Company's expense, which
the parties, their successors or assigns, may
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deem proper for the collection or reduction to possession of collection and
enforcement of any claim or right of any kind hereby sold, conveyed,
transferred, assigned and delivered, or intended so to be.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
applicable to contracts executed in and to be performed entirely within that
state.
SECTION 6.02. Currency. Unless otherwise specified in this
Agreement, all references to currency, monetary values and dollars set forth
herein mean United States (U.S.) Dollars and all payments hereunder shall be
made in United States Dollars.
SECTION 6.03. Specific Performance. Each of the parties
acknowledges that money damages would not be a sufficient remedy for any breach
of this Agreement and that irreparable harm would result if this Agreement were
not specifically enforced. Therefore, the rights and obligations of the parties
under this Agreement shall be enforceable by a decree of specific performance
issued by any court of competent jurisdiction, and appropriate injunctive relief
may be applied for and granted in connection therewith. A party's right to
specific performance shall be in addition to all other legal or equitable
remedies available to such party.
SECTION 6.04. Headings. The article and section headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 6.05. Entire Agreement. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and supersede all prior agreements
and understandings between the parties with respect to the subject matter hereof
and thereof.
SECTION 6.06. Severability. If any one or more provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
SECTION 6.07. No Third Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing
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herein, express or implied, is intended to or shall confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
SECTION 6.08. Dispute Resolution. (a) For the purposes of this
Section, the term "dispute" shall include any difference, dispute, claim or
controversy arising out of or in connection with this Agreement or any other
difference, dispute, claim or controversy arising between the parties.
(b) In an effort to resolve informally and amicably any
dispute without resorting to litigation, each party shall first notify each
other party of any dispute that requires resolution. Notification of a dispute
shall be made to a member of senior management (or other mutually agreed)
representatives of GTS or the Company, as the case may be. GTS and the Company
shall each designate an employee to investigate, discuss and seek to settle the
matter between them.
(c) Any dispute which is not resolved by the two individuals
appointed under the preceding sub-section within thirty 30 days after the
notification of the dispute shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by one or three arbitrators
appointed in accordance with the said Rules. The place of the Arbitration shall
be Paris and the language of the arbitral proceedings shall be English.
(d) The Arbitral Tribunal shall have the authority to give
orders requiring either party to produce documents relevant to the dispute or
disputes before the Arbitral Tribunal.
SECTION 6.9. Assignment. This Agreement or any rights or
obligations arising hereunder may not be assigned by operation of Law or
otherwise without the express written consent of the parties (which consent may
be granted or withheld in the sole discretion of the parties); provided,
however, that (i) each of the parties may assign this Agreement, in whole and
not in part, or any of its rights hereunder, to an Affiliate without the consent
of the other party (provided that the assignor shall nevertheless remain
obligated to perform its obligations hereunder following any such assignment),
and (ii) each of the parties may assign this Agreement, in whole and not in
part, to a Person who acquires all or substantially all of the assets and
liabilities of such party, without the consent of the other party.
SECTION 6.10. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument and shall become a
binding Agreement when one or more of the counterparts have been signed by each
of the parties and delivered to the other party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
GLOBAL TELESYSTEMS GROUP, INC.
By:
------------------------------------------
Name:
Title:
GTS EQUIPMENT CO.
By:
------------------------------------------
Name:
Title:
GT EQUIPMENT CO.
By:
------------------------------------------
Name:
Title:
GTS FINANCE, INC.
By:
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Name:
Title:
[GTS NEW FINANCE CO.]
By:
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Name:
Title:
GOLDEN TELECOM, INC.
By:
------------------------------------------
Name:
Title:
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SCHEDULE I
CONTRIBUTED SUBSIDIARIES
Jurisdiction of
Name Organization Interest Contributed
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TeleSystems Services, Inc. Delaware 100% of the outstanding capital
stock
SFMT-CIS, Inc. Delaware 100% of the outstanding capital
stock
GTS Mobile Services, Inc. Delaware 100% of the outstanding capital
stock
GTS Finance, Inc. Delaware 100% of the outstanding capital
stock
GTS Ukrainian TeleSystems LLC Delaware 100% interest in the Delaware LLC
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SCHEDULE II
RUSSIAN ASSETS AND LIABILITIES
All CIS assets and liabilities of GTS Equipment Co.
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SCHEDULE III
NON-RUSSIAN ASSETS AND LIABILITIES
All non-CIS assets and liabilities of GTS Finance, Inc.
