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EXHIBIT 99.3
SHARE PURCHASE AGREEMENT, dated May 10, 2001 (this "Agreement"),
between Global TeleSystems Europe Holdings B.V., a limited liability company
organized under the laws of the Netherlands ("GTS Holdings"), and Global
TeleSystems Europe B.V., a limited liability company organized under the laws of
the Netherlands ("GTS Europe").
W I T N E S S E T H:
WHEREAS, GTS Europe owns 15,056,328 shares of the common stock, par
value $0.01 per share (the "Common Stock"), of Golden Telecom, Inc., a
corporation organized under the laws of the State of Delaware ("Golden
Telecom");
WHEREAS, Global TeleSystems, Inc., a corporation organized under the
laws of the State of Delaware ("GTS"), has entered into a Share Purchase
Agreement, dated April 2, 2001 (the "Purchase Agreement"), by and among GTS,
Alfa Telecom Limited (as the assignee of Alfa Bank Holdings Limited, "Alfa
Telecom"), Capital International Global Emerging Markets Private Equity Fund,
L.P. ("Capital Global"), Cavendish Nominees Limited ("Cavendish"), and First NIS
Regional Fund SICAV (collectively, with Alfa Telecom, Capital Global and
Cavendish, the "Buyers"), pursuant to which GTS has agreed to sell 12,195,122
shares (the "Sale Shares") of the Common Stock to the Buyers and grant an option
to the Buyers to purchase 2,272,727 shares (the "Option Shares", and together
with the Sale Shares, the "Shares") of the Common Stock on the terms and subject
to the conditions set forth therein;
WHEREAS, pursuant to a separate Share Purchase Agreement, dated as
of the date hereof, GTS has sold the Shares to GTS Europe, and GTS Europe has
purchased the Shares from GTS;
WHEREAS, in connection therewith, GTS assigned all of its rights and
obligations under the Purchase Agreement to GTS Europe;
WHEREAS, GTS Europe wishes to sell the Shares to GTS Holdings, and
GTS Holdings wishes to purchase the Shares from GTS Europe; and
WHEREAS, in connection therewith, GTS Europe wishes to assign all of
its rights and GTS Holdings wishes to assume all of GTS Europe's obligations
under the Purchase Agreement; and
WHEREAS, pursuant to Section 8.2 of the Purchase Agreement, the
Buyers have consented to such assignment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereby agree as
follows:
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ARTICLE I
SALE AND PURCHASE
SECTION 1.01. Sale and Purchase of the Shares. On the date hereof,
GTS Europe hereby sells to GTS Holdings, and GTS Holdings hereby purchases from
GTS Europe, the Shares.
SECTION 1.02. Payment of Purchase Price. The aggregate purchase
price for the Shares is US$154,327,362.00 (the "Purchase Price"). The parties
acknowledge that the Purchase Price shall be paid by GTS Holdings through a loan
to GTS Holdings by GTS Europe under the Intercompany Loan Agreement, date August
18, 2000, among GTS Europe, GTS Holdings and Deutsche Bank AG London, as
Security Trustee, and that such amount shall be treated as a New Loan (as
defined in the Intercompany Loan Agreement) thereunder. GTS Europe agrees that,
notwithstanding anything to the contrary contained herein, it shall not assert
or exercise any right or claim in respect of such New Loan unless and until
Deutsche Bank AG London has confirmed that such New Loan may be incurred under
such Intercompany Loan Agreement.
Section 1.03. Deliveries by GTS Europe. Simultaneously with the
execution of this Agreement, GTS Europe has delivered to GTS Holdings
certificates evidencing the Shares accompanied by valid stock powers duly
executed in blank, in proper form for transfer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GTS EUROPE
As an inducement to GTS Holdings to enter into this Agreement GTS
Europe hereby represents and warrants as follows:
SECTION 2.01. Organization, Authority and Qualification of GTS
Europe. GTS Europe is a limited liability company duly organized and validly
existing under the laws of the Netherlands and has all necessary power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby, except where the failure
to be so organized or have such power does not adversely affect the ability of
to consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by GTS Europe, the performance by GTS Europe of its
obligations hereunder and the consummation by GTS Europe of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of GTS Europe. This Agreement has been duly executed and delivered by GTS
Europe, and (assuming in the case of this Agreement due authorization, execution
and delivery by GTS Holdings) this Agreement constitutes a legal, valid and
binding obligation of GTS Europe enforceable against GTS Europe in accordance
with its terms.
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SECTION 2.02. Ownership of the Shares. GTS Europe is the beneficial
and record owner of the Shares, free and clear of all liens, encumbrances or any
other charges, excluding those created under the Purchase Agreement or otherwise
referred to in the Purchase Agreement. Upon consummation of the transactions
contemplated by this Agreement, GTS Holdings will own the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GTS HOLDINGS
SECTION 3.01. Authority. This Agreement has been duly executed and
delivered by GTS Holdings, and (assuming in the case of this Agreement due
authorization, execution and delivery by GTS Europe) this Agreement constitutes
a legal, valid and binding obligation of GTS Holdings enforceable against GTS
Holdings in accordance with its terms.
ARTICLE IV
ASSIGNMENT
SECTION 4.01. Assignment and Assumption. GTS Europe hereby assigns,
transfers and conveys to GTS Holdings, and GTS Holdings hereby accepts and
assumes, all right, title and interest GTS Europe has in and with respect to,
the Purchase Agreement and the Shareholders and the Registration Rights
Agreement, dated as of December 24, 1999, by and among Golden Telecom, GTS and
Capital Global (the "Shareholders and Registration Rights Agreement"). GTS
Holdings hereby assumes and agrees to perform all of GTS Europe's obligations
and liabilities with respect to the Purchase Agreement and the Shareholders and
Registration Agreement. GTS Europe further represents and warrants that it has
full authority to make the foregoing assignment.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
SECTION 5.02. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 5.03. Severability. If any term or other provision of this
Agreement is
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invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party.
SECTION 5.04. 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 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.
SECTION 5.05. Reasonable Best Efforts. Upon the terms and subject to
the conditions hereof, each of the parties hereto 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.
SECTION 5.06. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 5.07. Governing Law; Choice of Forum. 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. Any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby may be brought in any federal or state
court located in the State of New York, County of New York and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above by their respective officers or
representatives thereunto duly authorized.
GLOBAL TELESYSTEMS
EUROPE HOLDINGS, B.V.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Member of Management Board
GLOBAL TELESYSTEMS EUROPE B.V.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Member of Management Board
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