EXHIBIT I
CONFORMED COPY
SHARE PURCHASE AGREEMENT
dated as of
November 28, 2003
by and between
CAVENDISH NOMINEES LIMITED
and
FIRST NIS REGIONAL FUND SICAV,
as Sellers
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 Purchasers................ 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 All 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
Schedules
Schedule A Shares and Purchase Price
i
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is made, executed and
delivered as of November 28, 2003 by and between Cavendish Nominees Limited, a
limited liability company organized under the laws of Guernsey ("Cavendish"),
and First NIS Regional Fund SICAV, a private institutional fund organized under
the laws of Luxembourg ("First NIS" and, together with Cavendish, each a
"Seller" and, collectively, the "Sellers"), and Xxx Telenor East Invest AS, a
company organized under the laws of Norway (the "Purchaser").
WITNESSETH
WHEREAS, the Sellers own beneficially and of record 60,000 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 Sellers wish to sell the Shares to the Purchaser and the
Purchaser wishes to purchase the Shares from the Sellers 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
each Seller, and each Seller shall sell to the Purchaser, the Shares specified
opposite such Seller's name in Schedule A hereto, 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 May 11, 2001 among the Sellers, Capital International Global Emerging Markets
Private Equity Fund L.P. ("CIG"), Alfa Telecom Limited ("Alfa") and the Company,
(b) the Shareholders Agreement dated as of August 19, 2003 among the Sellers,
CIG, Alfa, the Purchaser and the Company, (c) Claims arising by virtue of
actions of the Purchaser and (d) 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$28.00 per Share, for a total purchase price of US$1,680,000 (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 of the portion of the Purchase Price payable to each
Seller to such bank account or accounts as such Seller shall designate by
written notice delivered to the Purchaser prior to the Closing.
1.4 Manner of Delivery of Shares. At the Closing, each Seller shall
deliver to the Purchaser (or to such person as the Purchaser may designate in
writing to such Seller) certificates evidencing the Shares described opposite
such Seller's name in Schedule A hereto, 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 "Closing") at Xxxxxxxxxx & Xxxxx, Xxxxx House, 00 Xxxx
Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx on Friday, November 28, 2003, or on
such other date, and at such time or place, as shall be mutually agreed upon in
writing by the Sellers and the 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
and the Investor Letter dated the date hereof in the form attached hereto as
Exhibit A (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 each 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 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
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, defaults or other
occurrences that would not have a material adverse effect on
the Purchaser's ability to perform its obligations hereunder
or thereunder.
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(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 Sellers. Each Seller represents
and warrants to the Purchaser that:
(a) Such 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 such 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 such Seller, (B) any contract
or agreement of such 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 or any court or
governmental authority or of any arbitration award to which
such Seller is a party or by which such 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 such Seller or to a loss of any benefit
to which such 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 such Seller or any license,
franchise, permit or other similar authorization held by such
Seller; or (iii) result in the creation or imposition of any
lien or encumbrance on any asset of such 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 such Seller's ability to perform its
obligations hereunder.
(c) Such Seller has full company or other entity power and
authority to enter into and perform this Agreement. The
execution and delivery of this Agreement and the performance
by such Seller of its obligations hereunder have been duly
authorized by all requisite company or other entity action.
This Agreement constitutes the valid and binding obligation of
such Seller, enforceable against such 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) Such Seller is the beneficial and record owner of the
Shares specified opposite its name in Schedule A hereto, free
and clear of any Claims other than those listed in Section 1.1
hereof.
(e) Such 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 stock 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 5.2.
(c) Each 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.
4
5. Deliveries at Closing
---------------------
5.1 Documents to be Delivered by Sellers. At the Closing, each Seller
will deliver or cause to be delivered to the Purchaser (or to such person as
the Purchaser may designate in writing to such Seller) certificates
representing the Shares specified opposite such Seller's name in Schedule A
hereto, accompanied by duly executed stock powers.
5.2 Documents to be Delivered by the Purchaser. At the Closing, the
Purchaser will deliver to each Seller that portion of the Purchase Price
payable to such Seller, as specified in Schedule A hereto, 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 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.
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8.3 No Third-Party Beneficiaries; Several Liability. 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. The
obligations of the Sellers hereunder shall be several, and not joint and
several.
8.4 Entire Agreement. This Agreement and the exhibits and schedules
hereto, together with the Investor Letter, 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
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: Mr Tron Xxxxx
with a copy to:
Advokatene i Xxxxxxx
Xxxxxxxxxxx 00
X-0000 Xxxxxxx
Xxxxxx
Fax No. x00 00 000 000
Attn: Xxxxx Xxxxxxx
6
(b) if to Cavendish, at:
---------------------
c/o International Private Equity Services
00-00 Xxxxxxxx Xxxx
XX Xxx 000
Xx. Xxxxx Xxxx XX0 0XX, Guernsey
Facsimile No.: x00 (0) 0000 000 000
Attention: Xxx. Xxxxxx Xxxxxx
with a copy to:
Baring Vostok Capital Partners
0, Xxxxxxx Xxxxxx
Xxxxx Xxxxx XX, Xxxxx 000
000000 Xxxxxx, Xxxxxx
Facsimile No.: x0 (000) 000 0000
Attention: Xxxxxxx Xxxxxx
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxxxx
(c) if to First NIS, at:
---------------------
x/x Xxxx xx Xxxxxxx Xxxxxxxxxx
00 Xxx Xxxxxx X-0000, Xxxxxxxxxx
Facsimile No.: x00 0 00 00 00 000
Attention: Xxxxxxxxx Tourney
with a copy to:
Baring Vostok Capital Partners
0, Xxxxxxx Xxxxxx
Xxxxx Xxxxx XX, Xxxxx 000
000000 Xxxxxx, Xxxxxx
Facsimile No.: x0 (000) 000 0000
Attention: Xxxxxxx Xxxxxx
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and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
00 Xxxx Xxxx
Xxxxxx XX0X 0XX
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 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 Agremeent, 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.
SELLERS
-------
CAVENDISH NOMINEES LIMITED
By /s/ C. A. E. Helyar
-------------------
Director
FIRST NIS REGIONAL FUND SICAV
By /s/ Xxxx Xxxxxx Xxxxx
---------------------
Authorized Signatory
By /s/ W. Xxxx Xxxxxxx
--------------------
Authorized Signatory
PURCHASER
---------
XXX TELENOR EAST INVEST AS
By /s/ Tron Xxxxx
--------------
Director M&A
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Schedule A
Shares and Purchase Price
------------------------------------------ --------------------------- ------------------------------------------
Name of Seller Number of Shares Aggregate Purchase Price payable to
Seller
------------------------------------------ --------------------------- ------------------------------------------
------------------------------------------ --------------------------- ------------------------------------------
Cavendish Nominees Limited 42,557 US$1,191,596
------------------------------------------ --------------------------- ------------------------------------------
------------------------------------------ --------------------------- ------------------------------------------
First NIS Regional Fund SICAV 17,443 US$ 488,404
------------------------------------------ --------------------------- ------------------------------------------
------------------------------------------ --------------------------- ------------------------------------------
Total 60,000 US$1,680,000
------------------------------------------ --------------------------- ------------------------------------------
