1
EXHIBIT 10.9
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement (this "AGREEMENT"), is
entered into as of May 11, 2001, between Global TeleSystems, Inc., a Delaware
corporation ("GTS"), and Golden Telecom, Inc., a Delaware corporation ("GTI").
WITNESSETH:
WHEREAS, Global TeleSystems Europe Holdings B.V. (as the
assignee of Global TeleSystems Europe B.V., which is the assignee of GTS,
"HOLDINGS BV"), Alfa Telecom Limited (as assignee of Alfa Bank Holdings
Limited), a company incorporated in the British Virgin Islands ("ALFA"), Capital
International Global Emerging Markets Private Equity Fund, L.P., a Delaware
limited partnership ("CIG"), Cavendish Nominees Limited, a limited liability
company organized and registered under the laws of Guernsey ("CAVENDISH"), and
First NIS Regional Fund SICAV, a private institutional fund organized and
registered under the laws of Luxembourg (together with Cavendish, "BARINGS"),
have entered into a Share Purchase Agreement (the "SHARE PURCHASE AGREEMENT"),
dated as of April 2, 2001, pursuant to which Holdings BV has agreed to sell to
Alfa, CIG and Barings, and each of Alfa, CIG and Barings has agreed to purchase,
the number of shares of common stock, par value $0.01 per share, of GTI set
forth opposite the name of each party on Schedule 1.1 of the Share Purchase
Agreement;
WHEREAS, GTS and GTI are parties to an Administrative Services
Agreement, dated as of October 5, 1999 (the "ADMINISTRATIVE SERVICES
AGREEMENT"), pursuant to which GTS agreed to provide to GTI certain
administrative services;
WHEREAS, GTS and GTI are parties to an Employee Benefits
Agreement, dated as of October 5, 1999 (the "EMPLOYEE BENEFITS AGREEMENT" and
together with the Administrative Services Agreement, the "TERMINATED
AGREEMENTS"), pursuant to which GTS agreed to provide employee benefits to
certain employees of GTI; and
WHEREAS, GTS and GTI desire to terminate the Terminated
Agreements and release the other party from any and all obligations and
liabilities arising under either of the Terminated Agreements effective as of
the Closing Date (as defined in the Share Purchase Agreement).
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and with the intent to
be legally bound, the parties hereto agree as follows:
1. Termination and Release. (a) GTS and GTI hereby terminate
the Terminated Agreements effective as of the Closing Date, and effective as of
the Closing Date, the Terminated Agreements shall be of no further force and
effect. GTS and GTI hereby acknowledge that the Closing Date shall serve as the
Separation Date under the Employee Benefits Agreement.
(b) Subject to Section 3 of this Agreement, as of the Closing
Date, neither GTS nor GTI shall have any further rights under the Terminated
Agreements and, effective as
2
of the Closing Date, each party hereto forever releases and discharges the
other party (and such other parties successors and assigns) from
any and all rights and obligations, duties, claims, debts, actions, causes of
action or liabilities arising out of, or relating to, the Terminated Agreements,
subject to the satisfaction of the parties' respective obligations under Section
2(f) of the Employee Benefits Agreement; provided that, for the purposes of this
Section 1(b), (i) the Separation Date (as defined in the Employee Benefits
Agreement) shall be the Closing Date, (ii) GTI shall not be obligated to
establish a "mirror" defined contribution plan under Section 2(f) of the
Employee Benefits Agreement, (iii) in the event that GTI decides to establish a
defined contribution plan under Section 2(f) of the Employee Benefits Agreement,
GTI shall not be required to "mirror" the GTS 401(k) Plan (as defined in the
Employee Benefits Agreement), (iv) GTS shall cause to be transferred from the
401(k) Plan (as defined in the Employee Benefits Agreement), in accordance with
the terms of Section 2(f) of the Employee Benefits Agreement, assets equal to
the account balances as of the Closing Date of the Transferred Employees (as
defined in the Employee Benefits Agreement) who participate in the 401(k) Plan
(as defined in the Employee Benefits Agreement) (with subsequent "true up"
adjustment, if necessary) (the "401(k) ASSETS") and (v) GTI may direct that GTS
disperse the 401(k) Assets to the individual employees covered under the GTS
401(k) Plan (as defined in the Employee Benefits Agreement).
2. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure only to the benefit of GTS and GTI and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
3. Termination of the Share Purchase Agreement. Upon the
valid termination of the Share Purchase Agreement by any party thereto, this
Agreement shall automatically be null and void and of no furtherforce and
effect.
4. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile signature and such signature shall be deemed binding for
all purposes hereof, without delivery of an original signature being thereafter
required.
5. Governing Law. This Agreement shall be governed by the
laws of the State of New York.
[Remainder of this Page Intentionally Left Blank]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
GLOBAL TELESYSTEMS, INC.
By
------------------------
Name:
Title:
GOLDEN TELECOM, INC.
By
------------------------
Name:
Title:
