ASSIGNMENT AND AMENDMENT AGREEMENT
ASSIGNMENT AND AMENDMENT AGREEMENT, dated as of May 11, 2001 (the
"Amendment"), by and among Golden Telecom, Inc., a Delaware corporation
(the "Company"), Baring Vostok Private Equity Fund LP, a limited
partnership organized and registered under the laws of Guernsey ("BVPE
Fund"), First NIS Regional Fund SICAV, a private institutional fund
organized and registered under the laws of Luxembourg ("First NIS Fund"),
and Cavendish Nominees Limited, a limited liability company organized and
registered under the laws of Guernsey ("Cavendish"), relating to each of
the Registration Rights Agreement dated October 5, 1999 by and between the
Company and BVPE Fund (the "BVPE Agreement") and the Registration Rights
Agreement dated October 5, 1999 by and between the Company and First NIS
Fund (the "NIS Agreement").
RECITALS
A. Global TeleSystems Europe Holdings B.V. (as the assignee of
Global TeleSystems Europe B.V., which is the assignee of Global
TeleSystems, Inc.), a company organized and registered under the laws of
the Netherlands ("GTS"), has sold an aggregate of 12,195,122 shares of the
Company's common stock, par value $.01 per share ("Common Stock"), in a
private placement to First NIS Fund, Cavendish and other investors (the
"Private Placement") pursuant to a Share Purchase Agreement dated April 2,
2001 (the "Purchase Agreement").
B. In order to induce First NIS Fund, Cavendish and other
investors to enter into the Purchase Agreement, GTS has granted to each of
them an option (an "Option") to purchase additional shares of Common Stock
of the Company held by GTS.
C. In connection with the Private Placement, the parties to the
Purchase Agreement are entering into a Shareholders Agreement in order to
set forth the terms and conditions of agreements between them regarding
certain rights and restrictions with respect to the shares of Common Stock
held by them and the management of the Company.
D. In connection with the Private Placement, the parties hereto
also desire to (i) assign all of BVPE Fund's rights under the BVPE
Agreement to Cavendish and First NIS Fund, subject to their assumption of
BVPE Fund's obligations under the BVPE Agreement as provided herein; (ii)
amend the provisions of the NIS Agreement to cover all of (x) the
registrable securities that are subject to the registration rights assigned
to First NIS Fund and Cavendish pursuant to the above-mentioned assignment,
(y) the registrable securities that are subject to the registration rights
in the NIS Agreement, and (z) all of the shares acquired by First NIS Fund
and Cavendish in the Private Placement; and (iii) reinstate the demand
registration right originally set forth in the NIS Agreement, as if no such
demand registration right had been exercised prior to the date hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein, the parties hereby agree as
follows:
1. Assignment.
----------
(a) BVPE Fund hereby irrevocably and unconditionally assigns and
absolutely transfers to First NIS Fund and Cavendish, with effect from the
Closing Date (as defined in the Purchase Agreement), all of BVPE Fund's
present and future rights, title and interest in and under the BVPE
Agreement (the "Assignment"), it being understood and agreed that the
Demand Registration right provided in Section 3(b) of the BVPE Agreement
has been fully exercised and is no longer available to First NIS Fund and
Cavendish.
(b) The Company hereby acknowledges and consents in all respects
to the Assignment.
(c) BVPE Fund shall not be liable to First NIS Fund or Cavendish,
the Company or any of their successors, assigns, affiliates, directors,
officers stockholders, agents or representatives for any losses,
liabilities (contingent or otherwise), damages, and expenses of any nature
or kind in connection with the BVPE Agreement that have or may have
occurred prior to the date of the Assignment.
(d) First NIS Fund and Cavendish hereby jointly and severally
agree to assume all obligations of BVPE Fund under the BVPE Agreement.
2. Accession of Cavendish. Cavendish hereby agrees to become a
party to, to be bound by and to comply with the provisions of the NIS
Agreement and the BVPE Agreement in the same manner as if Cavendish were an
original signatory to such agreements, and agrees that it will be
considered an "Investor" for all purposes thereunder together with First
NIS Fund. The Company hereby acknowledges and consents to the accession of
Cavendish as a party to the NIS Agreement and the BVPE Agreement.
3. References to Investor; Certain Definitions.
-------------------------------------------
(a) All references to "Investor" in the NIS Agreement and the
BVPE Agreement shall be deemed to refer to First NIS Fund and Cavendish
together. The reference to the defined term "Investor" in the preamble of
the NIS Agreement and the BVPE Agreement shall accordingly be changed to
"First NIS Fund."
(b) The following new defined terms shall be added to Section 1
of the NIS Agreement:
" 'CAVENDISH' means Cavendish Nominees Limited, a limited
liability company registered under the laws of Guernsey."
" 'FIRST NIS FUND' means First NIS Regional Fund SICAV, a private
institutional fund organized and registered under the laws of
Luxembourg."
" 'INVESTOR' means Cavendish and First NIS Fund together.
(c) The definition of "Registrable Securities" contained in
Section 1 of the NIS Agreement shall be amended and restated to read in its
entirety as follows:
" 'REGISTRABLE SECURITIES' means (i) the 598,523 shares of Common
Stock acquired by First NIS Fund in the Initial Public Offering, (ii)
the 267,380 shares of Common Stock acquired by Baring Vostok Private
Equity Fund LP, in the Initial Public Offering (iii) the 30,000 shares
of Common Stock issued or issuable pursuant to Section 6(4) of that
certain Subscription Agreement dated September 30, 1999 between the
Company and First NIS Fund, (iv) any shares of Common Stock issued or
issuable to First NIS Fund or Cavendish pursuant to that certain Share
Purchase Agreement dated April 2, 2001 by and between Global
TeleSystems Europe Holdings B.V. (as the assignee of Global
TeleSystems Europe B.V., which is the assignee of Global TeleSystems,
Inc.), Alfa Telecom Limited (as assignee of Alfa Bank Holdings
Limited), Capital International Global Emerging Markets Private Equity
Fund, L.P., Cavendish and First NIS Fund, (v) any shares of Common
Stock issued or issuable to First NIS Fund or Cavendish upon the
exercise of the options granted under any of those certain Stock
Option Agreements dated as of May 11, 2001 by and between GTS and each
of (x) Alfa Telecom Limited, (y) Capital International Global Emerging
Markets Private Equity Fund, L.P., and (z) Cavendish and First NIS
Fund, and (vi) any securities issued or issuable with respect to the
shares of Common Stock described in sub-clauses (i) through (v) above
by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization, until in each case such shares of Common Stock
or other securities are not Restricted Securities as defined in
Section 2."
4. Reinstatement and Clarification of Demand Registration Right.
The Company hereby acknowledges and agrees that, notwithstanding the
letters from First NIS Fund and BVPE Fund to the Company dated April 10,
2000 and April 11, 2000, respectively, requesting that the Company register
shares with the Securities and Exchange Commission, the Demand Registration
right provided in Section 3(b) of the NIS Agreement be, and it hereby is,
reinstated, with the same effect as if no such Demand Registration right
had been exercised prior to the date hereof, and the first sentence of
Section 3(b) of the NIS Agreement is hereby amended and restated to read in
its entirety as follows:
"First NIS Fund and Cavendish, collectively, will be entitled to
request one Demand Registration."
5. Certain Company Undertakings. Section 5(r) of the NIS
Agreement shall be amended and restated to read in its entirety as follows:
"(r) take such other reasonable steps that are necessary or
advisable to permit the sale of such Registrable Securities, including
without limitation making the appropriate management personnel
available for roadshows and other meetings with investors and any
other actions as may be reasonably requested by the Investors and the
underwriters."
6. Continued Effectiveness. The NIS Agreement, as amended hereby,
and the BVPE Agreement, as assigned hereby, shall remain in force and
effect, and the parties shall adhere to and be bound by the terms thereof,
as amended or assigned hereby, as the case may be.
7. Certain Terms; Headings. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the NIS
Agreement. The headings of sections of this Amendment have been inserted
for convenience of reference only and shall not be deemed to be a part of
this Amendment.
8. Governing Law. This Amendment shall be governed, construed and
interpreted in accordance with the laws of the State of New York (without
regard to the conflicts of laws principles thereof).
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have executed and delivered this Amendment in one or more
counterparts, each of which shall be an original but which together shall
constitute one and the same instrument, all as of the date first written
above.
BARING VOSTOK PRIVATE
EQUITY FUND LP
By: /s/
---------------------------------
Name:
Title:
As General Partner of Baring Vostok
Fund (GP) L.P.
FIRST NIS REGIONAL FUND SICAV
By: /s/
---------------------------------
Name:
Title:
By: /s/
---------------------------------
Name:
Title:
CAVENDISH NOMINEES LIMITED
By: /s/
---------------------------------
Name:
Title:
GOLDEN TELECOM, INC.
By: /s/
---------------------------------
Name:
Title:
