EX-10.37 38 file033.htm SHARE PURCHASE AGREEMENT DATED 9/9/04
EX-10.37
38
file033.htm
SHARE PURCHASE AGREEMENT DATED 9/9/04
Exhibit 10.37
AGREEMENT No 2K/4
FOR PURCHASE AND SALE OF SECURITIES
Moscow 09 September 2004
"XXXXXXX CAPITAL LIMITED", hereunder referred to as "SELLER", established
and existing in accordance with the laws of British Virgin Islands, having its
registered office at: Akara Bldg., 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay I, Road
Town, Tortola, British Virgin Islands, represented by director Xx. Xxxxx Xxxxxx
Xxxxxx, acting pursuant to its by-laws,
and
"StoryFirst Communications, Inc", hereunder referred to as "BUYER",
represented by its Chief executive officer Xx. Xxxxxxxxx Rodnyanski, acting
pursuant to its by-laws, collectively referred to as the "PARTIES", entered into
the present Agreement as follows:
I. SUBJECT OF AGREEMENT
1.1. Subject to the terms and conditions of this Agreement, Seller shall
transfer and Buyer shall purchase and accept title to the following
securities (hereunder the "SECURITIES"):
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Type of Securities Ordinary registered non-certificated shares
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Issuer OJSC TELEXPRESS (OGRN - 1037700160365,
resident of Russia, Moscow)
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Nominal Value 1 (one) Xxxxx
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Quantity 390 (three hundred ninety) shares
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Securities issue 1-01-01275-N
registration number
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Type of Securities Preferred registered non-certificated
shares, converted into ordinary shares
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Issuer OJSC TELEXPRESS (OGRN - 1037700160365,
resident of Russia, Moscow)
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Nominal Value 1 (one) Xxxxx
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Quantity 100 (one hundred) shares
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Securities issue 3-01-01275-N
registration number
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1.2. The total nominal value of the Securities purchased by Buyer is 490 (four
hundred ninety) Rubles representing 49 (forty nine) % of the Charter
Capital of OJSC TELEXPRESS (hereunder, "ISSUER").
II. REPRESENTATION AND WARRANTIES
2.1. Each of Buyer and Seller represents that it has proper legal capacity to
enter into this Agreement and that its signatories are properly authorized
and empowered to execute the same.
2.2. Seller represents and warrants that as of the date the title to the
Securities transfers from Seller to Buyer:
2.2.1. The Securities are owned by it, fully paid, have not been
disposed of, pledged, seized or placed in trust, are free and
clear of any claims and third party interests, including any
rights of first refusal, options or other encumbrances, and are
not otherwise subject to injunction or restriction;
2.2.2. Issuer is a company duly established, registered with all
governmental authorities and existing in accordance with the law
of the Russian Federation. Issuer is not subject to any
restructuring, bankruptcy, liquidation or other
similar proceedings and no decision to initiate restructuring,
bankruptcy, liquidation or other similar proceedings has been
taken by Issuer's governing body or governmental authority in
respect of Issuer;
2.2.3. Issuer has a Charter capital of 1000 Rubles divided into 880
ordinary registered shares and 120 privileged registered shares
convertible into ordinary registered shares. The Issuer's
securities issue and statement of securities issue placement has
been approved and registered in accordance with the law of the
Russian Federation. No decisions exist in respect of Issuer
relating to the increase or decrease of the charter capital,
issuance of shares or other securities, declaration or payment
of dividends, stock redemption, split or consolidation. No
dividends are outstanding in respect of Issuer's privileged
shares;
2.2.4. No facts exist that are known or should have been known to
Seller, which may affect Buyer's decision to purchase the
Securities on the terms and conditions set forth herein;
2.2.5. Issuer is the legal holder of all necessary television
broadcasting licenses, permits and certificates, issued by the
Russian Ministry of Press, Television Broadcasting and Mass
Media, Ministry of Communications and Information Technology,
Gossvyaznadzor and other government authorities. All of Issuer's
licenses, permits and certificates have been obtained in
accordance with the applicable laws, are valid and have not been
suspended, terminated or revoked. Issuer has complied with all
requirements and conditions set forth in its licenses, permits
and certificates;
2.2.6. Issuer owns technical facilities, required for television
broadcasting operations ("TECHNICAL FACILITIES"). Issuer's
Technical Facilities have not been pledged, seized, leased to
third parties or placed in trust and are free and clear of any
claims and third party of any claims and third party interests,
including any rights of first refusal, options or other
encumbrances, and are not otherwise subject to injunction or
restriction. None of such facilities have any defects (whether
apparent or hidden), they have been maintained consistent with
the industry practices, are in operating condition (subject to
normal wear) and are fit for their intended use;
2.2.7. Issuer owns the building located at 00/0 Xxxxxx Xxxxxx, Xxxxxx
(the "BUILDING") and such ownership right has been properly
recorded with all governmental authorities. The Building (1) has
not been disposed of, (2) pledged, (3) seized, leased to third
parties or placed on the list of dilapidated buildings to be
demolished, (4) is free and clear of any claims and third party
interests, including any rights of first refusal, option,
servitude or other encumbrance, and are not otherwise subject to
injunction or restriction. The utilities and other services
required for the operation of the Building are available in the
Building, including gas, electricity, water, telephone services
and sewage, as well as other maintenance and utility services
typical for this class of real estate.
2.2.8. Issuer has no outstanding obligations (debts) to any individuals
or legal entities, including (i) any agreements, contracts or
other instruments, under which Issuer has borrowed any money
from, or issued any note, bond, debenture or other evidence of
indebtedness to, any person; (ii) any agreements, contracts or
other instruments, under which (A) any person, directly or
indirectly guaranteed any indebtness or obligations of Issuer or
(B) Issuer directly or indirectly
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guaranteed any indebtness or obligations of any other person;
(iii) mortgage, pledge, security agreement, deed of trust or
other instrument granting a lien upon any material object of
personal (movable) property of Issuer or any material object of
real property; or (iv) any outstanding taxes, charges, duties,
fines or other compulsory payments, except as set forth in
Schedule 1 hereto and obligations arisen as a result of regular
operations of the Issuer;
2.2.9. No court, administrative or any other proceedings are on-going
or pending in respect of Issuer, which outcome may adversely
affect Issuer's financial condition;
2.2.10. Seller has obtained all approvals (consents) of the authorized
governing bodies for consummating the transaction on the terms
and conditions, set forth herein.
2.3. Indemnity for breach of warranties.
2.3.1. In the event any of the warranties and/or representations of
Seller is breached, Seller shall indemnify Buyer and reimburse to
it all and any Buyer's Damages (as defined in section 2.3.2.).
2.3.2. The term "Buyer's Damages" means all Damages, suffered by Buyer or
Issuer, arising, directly or indirectly, from: (1) any breach of
representation and warranties of Seller, contained herein; (2) any
material breach of any of the Seller's obligations hereunder; or
(3) any third party claim based on allegation, which, if proved to
be true, will entitle Buyer to indemnification under this section.
2.4. Additional obligations of Seller:
2.4.1. Seller shall provide Buyer with documents, confirming waivers of
the rights of the founders of the mass-media "TELEEXPRESS", named
in the certificate of the mass- media "TELEEXPRESS" No. 02347 of
February 25, 1994, and/or other documents confirming
non-presenting to the registration authorities documents in
accordance with art. 26 of the Federal law of the Russian
Federation "About registration of legal entities and
self-employers" during the period of validity of the present
Agreement.
2.4.2. Seller shall terminate a contract with general director of Issuer
Xx. Xxxxxxx Xxxxxx Xxxxxxx without any additional consideration
notwithstanding to the fact of pre-term termination of the said
contract and/or alternation of the owner of Issuer during the
period of validity of the present Agreement.
2.4.3. Seller shall provide Buyer during the period of validity of the
present Agreement with documents confirming transfer of title to
the share of limited liability company "Televisionnaya kompaniya
"T-8" to CJSC "CTC-Region". The nominal price of the said share is
260 000 (Two hundred sixty thousand) rubles and equal to 100 % of
the charter capital of "Televisionnaya kompaniya "T-8" LLC
2.5. Buyer represents and warrants that it has obtained all approvals
(consents) of the authorized governing and governmental bodies for consummating
the transaction on the terms and conditions, set forth herein.
III. PURCHASE PRICE AND PAYMENTS BETWEEN PARTIES
3.1. Buyer shall pay the following price for the Securities:
Price of 390 ordinary registered shares shall be: 19 102 040 (Nineteen
million one hundred two thousand forty) US Dollars.
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Price of 100 preferred registered shares converted into ordinary shares
shall be: 4 897 960 (Four million eight hundred ninety seven thousand nine
hundred sixty) US Dollars.
Total Purchase Price shall be: 24 000 000 (Twenty four million) US
Dollars.
3.2. Buyer shall pay to Seller the Purchase Price with the deduction of advance
(section 3.3. of the present Agreement) and amounts in accordance with
section 3.4. of the present Agreement by wire transfer to the Seller's
bank account within 3 (three) banking days from the transfer of title to
the Securities to Buyer pursuant to Section IV hereof. The amounts set
forth in section 3.1. hereof shall be inclusive of all taxes, which Seller
may have to pay in connection with the sale of the Securities pursuant to
the Russian law on taxes and fees.
3.3. Buyer shall pay to Seller an advance in amount of 2 500 000 (Two million
five hundred thousand) US Dollars by wire transfer to the Seller's bank
account insuring performance of Buyer's obligations under the present
Agreement. Buyer shall pay the said advance to the Seller's bank account
within 3 (three) days since the date of signing of the present Agreement.
3.4. Buyer holds back the following amounts from the Purchase price stipulated
in sections 3.1., 3.2. hereof till performance by Seller its obligations
set forth in section 2.4. of the Agreement:
- insuring performance of obligation set forth in section 2.4.1. of the
present Agreement - 1 000 000 (One million) US Dollars;
- insuring performance of obligation set forth in section 2.4.2. of the
present Agreement - 2 000 000 (Two million) US Dollars;
- insuring performance of obligation set forth in section 2.4.3. of the
present Agreement - 1 000 000 (One million) US Dollars;
Buyer shall pay to Seller on its bank account the withhold amount within 3
(three) days since the date of presenting by Seller the relevant documents
of performance of the corresponding obligation in accordance with section
2.4. of the present Agreement.
3.5. In case of termination of the present Agreement by consent of the parties
or in result of impossibility of its performance the advance shall be
repaid to Buyer within 5 (five) days since the date of termination of the
Agreement.
3.6. The party guilty in non-performance of its obligations insured by the
advance incurs liability according to article 381 of Civil Code of Russia.
3.7. Buyer shall provide to Seller original payment documents in accordance
with section 3.2, 3.3. and 3.4 hereof stamped by the bank to evidence that
such payments have been made. Subject to Seller's consent Buyer may
provide a copy of such document.
IV. TRANSFER OF TITLE TO SECURITIES
4.1. Buyer shall become an owner of the Securities upon a receipt entry
recorded on the securities account with OOO Irkol Depository (hereunder
the "DEPOSITORY") with registered office at: 4/3 Xxxxxxxxxx xxxxxx,
xxxxxxxx 0, 000000, Xxxxxx, Xxxxxx.
4.2. Both Parties shall be responsible for completing all actions, required to
transfer the title to the Securities from Seller to Buyer.
4.3. Seller shall be required within 3 (three) days since receipt of 50 % of
purchase price for the securities under Agreement of sale and purchase of
securities of August_______, 2004 concluded . between Seller and CJSC "Set
Televisionnykh Stantsiy" in accordance with section 3.2. of the
aforementioned Agreement to execute and deliver to Buyer an order for
transfer of the Securities from Seller's securities account to Buyer's
securities account with the Depository. Upon receiving such order, Buyer
shall execute it on the same day and deliver it to the
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Depository to effect the transfer of the Securities from the Seller's
securities account to the Buyer's securities account.
4.4. No later than the day following the date of delivery by Buyer to the
Depository of the Securities transfer order properly executed by the
Parties under section 4.3. hereof, Seller shall deliver to Buyer copies of
the following documents:
o Notice of transfer of the Securities from Seller's securities account
to the Buyer's securities account, issued by the Depository to Seller
upon the completion of such transaction; and
o Statement of Seller's securities account, evidencing the transfer
(absence) of the Securities from (in) such account, issued by the
Depository to Seller upon its request.
4.5. No later than the day following the date of delivery by Buyer to the
Depository of the Securities transfer order properly executed by the
Parties under section 4.3. hereof, Buyer shall deliver to Seller copies of
the following documents:
o Notice of transfer of the Securities from Seller's securities account
to Buyer's securities account, issued by the Depository to Buyer upon
the completion of such transaction; and
o Statement of Buyer's securities account, evidencing the transfer
(presence) of the Securities to (in) such account, issued by the
Depository to Buyer upon its request.
V. MISCELLANEOUS
5.1. In the event of non-performance or improper performance hereunder, the
non-performing Party shall be held liable in the manner, prescribed by the
Russian law and this Agreement.
5.2. In the event of delay in the performance of the obligation under sections
3.2., 3.4. hereof, Buyer shall pay to Seller a penalty at the rate of 0,5
% of the Purchase Price (under section 3.1. hereof) for each day of delay.
5.3. This Agreement shall be governed by the substantive law of the Russian
Federation.
5.4. Disputes arising in connection with the performance of this Agreement, if
they cannot be resolved by the agreement of the Parties, shall be referred
to the Moscow Arbitrazh Court in accordance with the rules of procedure
then effective in the Russian Federation.
5.5. This Agreement shall come into force upon its execution by the Parties and
is valid till performance by the Parties all of their obligations.
5.6. This Agreement is executed in Russian and English in two counterparts with
one for each Party. In the event the texts in Russian and English are not
similar, Russian language prevails.
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VI. ADDRESSES, DETAILS AND SIGNATURES OF PARTIES
SELLER:
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Bank Details Current account in USD 40807840610110473801 with JSCB "Promsvyazbank"
(ZAO), Moscow, Russia SWIFT:XXXXXXXX correspondent account No. 00000000
with Deutsche Bank Trust Company Americas; New York, NY, USA SWIFT: XXXXXX00
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Mailing Address: Akara Bldg., 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay I, Road Town,
Tortola, British Virgin Islands
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Registered Office: Akara Bldg., 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay I, Road Town,
Tortola, British Virgin Islands
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Name Xxxxx Xxxxxx Xxxxxx
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Signature Seal
/s/ Xxxxx Xxxxxx Xxxxxx
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BUYER:
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Bank Details Xxxxx Fargo Bank, 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000-0000,
XXX
WFB Acct: 4068-000769 Further credit to: TR 358-214486
SWIFT: XXXXXX0X XXX: 000000000
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Registered Office: 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxx of Delaware, USA
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Name STORYFIRST COMMUNICATIONS, INC
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Signature Seal
/s/
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Schedule # 1
to Agreement for sale
and purchase
of securities No________
_______________2004
ISSUER: TELEEXPRESS
NUMBER DATE DEBT HOLDER NOMINAL AMOUNT
1 Promisory note 0011004 of 00-00-00 XXX "Xxxxxxx Xxxxxxxxxxxx" 38,195,312.73 rubles
2 Promisory note 0012004 of 00-00-00 XXX "Xxxxxxx Xxxxxxxxxxxx" 25,500,000.00 rubles
3 Promisory note 0096020 of 03-08-04 ZAO "Xxxx.S" 5,000,000.00 rubles
4 Xxxx of exchange 319614 of 05-10-99 ZAO "Priemier S.V." 3,993,664.55 rubles
5 Xxxx of exchange 319615 of 05-10-99 ZAO "Priemier S.V." 726,048.97 rubles
6 Promisory note 2542010 of 27-07-99 ZAO "Xxxx.S" 53,284,000.00 rubles
7 Promisory note 3134537 of 15-07-03 Xxxxxx Corporation 1,000,000.00 US Dollars
8 Promisory note 0096021 of 20-08-04 NO "Negosudarstvennyi pensionnyi 863000.00 US Dollars
fond "LUKOIL-GARANT"
SELLER BUYER
/s/