EXHIBIT 10.38
SALE AND PURCHASE CONTRACT # 04-KP/04
Moscow September 02, 2004
Closed joint-stock company "▇▇▇▇.S." hereinafter referred to as the
Sellers, in the person of the Head of Financial department ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, acting the basis of the Power of attorney dated October 01st,
2002 # 31, on the one hand, and
Closed joint-stock company "CTC-Region" hereinafter referred to as the
Buyers, in the person of General director Mr. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
acting on the basis of the Charter, on the other hand, jointly referred to as
the "Parties", have concluded the present Contract on the following:
I. SUBJECT OF THE CONTRACT
1.1. The Sellers shall transfer, and the Buyers shall accept in ownership
and pay on conditions of the present Contract the following securities,
participation share in the charter capital of economic societies and the
technical equipment (further jointly referred to as "Property"):
1.1.1. 100 (a hundred) registered ordinary uncertified shares of Closed
joint-stock company ((▇▇▇▇▇▇ channel)) (5, Ordinarnaya Str., 197136,
St.-Petersburg) with a par value of 500 (five hundred) roubles each constituting
100 % of the charter capital of this Company (emission state registration number
of release: 72-1-5388).
1.1.2. 25 (twenty five) registered ordinary uncertified shares of Closed
joint-stock company "Television company "VarianT" (▇▇, ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇,
▇▇▇▇▇) with a par value of 1,000 (one thousand) roubles each constituting 50 %
of the charter capital of this Company (emission state registration
release: 11-1-2243).
1.1.3. A participation share in the charter capital of Society with limited
responsibility "Television company "T-8" (80"A", ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
Perm) with a par value of 260,000 (Two hundred sixty thousand) roubles
constituting 100 % of the charter capital of this Company.
Economic societies specified in the present paragraph of the Contract shall
be jointly referred to as the "Companies", joint-stock companies further be
referred to as the in the further are called "Issuers", and Issuers' securities
- "SP(1)".
1.1.4. The Technical equipment pursuant to Appendix 1 to the present
Contract.
2. WARRANTIES AND GUARANTEES
2.1. The Buyers and the Sellers shall warrant that they possess legal
capacity to conclude the present Contract, and persons who signed it have powers
and authorities thereto.
2.2. The Sellers shall warrant and guarantee that as of the date of signing
the present Contract and for the moment of transfer of ownership right to the
Property from the Sellers to the Buyers:
2.2.1. The Property shall belong to the Sellers on the ownership right,
fully paid for, assigned to nobody, not under mortgage, not in custody or in
fiduciary management, free from any demands or rights of third parties,
including from any proprietary rights, option or any other encumbrance, as well
as not subject to any prohibition or restriction;
2.2.2. Companies shall be properly created, registered with all state
authorities and conduct business according to the legislation of the Russian
Federation on economic societies. Companies shall not be under the process of
reorganization, bankruptcy, liquidation or other similar procedures; and there
was no decision adopted regarding the Companies by any management body or state
authority on initiating the process of reorganization, bankruptcy, liquidation
or other similar procedures;
2.2.3. There are no circumstances that are known or should be known to the
Sellers, that
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(1) SP = Security papers
could influence on the adopting the decision by the Buyer t acquire the Property
on the conditions of the present Contract and have not been advised to the
Buyer;
2.2.4. Companies shall legally possess all necessary effective licenses,
sanctions and certificates of the Ministry of the Russian Federation on affairs
of the press, tele-radio broadcasting and mass communication, Ministry of
information technologies and communication of the Russian Federation,
Gossvyaznadzor and all other state authorities for conducting television
broadcasting, except for the Gossvyaznadzor license for OOO "Television company
"T-8". All licenses, sanctions and certificates have been obtained pursuant to
the current legislation, are valid and not suspended, terminated or withdrawn.
The Companies shall comply with all requirements and conditions of the licenses,
sanctions and certificates;
2.2.5. The Companies shall possess the ownership right for the technical
equipment necessary for conducting the activity on television broadcasting
excluding the equipment specified in Appendix 1 to present Contract. Technical
equipment of the Companies assigned to nobody, not under mortgage, not in
custody or in fiduciary management, free from any demands or rights of third
parties, including from any proprietary rights, option or any other encumbrance,
as well as not subject to any prohibition or restriction. No object shall have
any defects (both obvious, and hidden), services according to the usual branch
practice, is in the operating condition (subject to normal deterioration) and is
suitable for current target use;
2.2.6. The Companies shall have no unperformed obligations (debts) before
physical persons or legal entities, including (i) any agreements, contracts or
other documents, upon which the Companies borrowed money resources or issued
promissory notes, debentures, bonds or other confirmations of indebtedness in
favour of any person; (ii) any agreements, contracts or other documents, upon
which (A) any person directly or indirectly guaranteed any indebtedness or
obligations of the Companies or (B) the Companies directly or indirectly
guaranteed any debts or obligations of any other person; as well as (iii)
mortgage bonds, mortgage or guarantee contracts, contracts on fiduciary property
or other documents upon which the right is granted to retain essential objects
of the Companies' movables or essential objects of the Companies' immovables;
(iv) indebtedness on payment of taxes, fees, duties, penalties or others
obligatory payments, except for the promissory notes specified in para 1.2. of
Contract on sale and purchase of promissory notes # 22-B/04 dated September 2,
2004 and in para 1.2. of Contract on sale and purchase of promissory notes #
23-B/04 dated September 2, 2004, as well as indebtedness resulted from
conducting current operational activity;
2.2.7. There are no initiated or considered court, administrative or any
other proceedings, that can result in deterioration of the Companies' financial
status.
2.3. Indemnification for infringement of guarantees.
2.3.1. Should any assurances and/or guarantees be violated, the Sellers
shall indemnify and compensate to the Buyers any and all Losses of the Buyers
(the term is defined in para 2.3.2.).
2.3.2. The term ((Losses of the Buyers)) shall mean all the Losses suffered
by the Buyers or a Company that resulted from or directly or indirectly occurred
in connection to: (I) any infringement of warranties and guarantees of the
Sellers included into the present Contract; (2) any essential infringement of
any obligation of the Sellers under the conditions of the present Contract; or
(3) any claim of any third parties based on the facts, that if recognized as
true, shall give the Buyers the right to indemnification pursuant hereto.
2.4. The Buyers and the Sellers shall warrant that they have obtained the
approval (consent) of the corresponding authorized managing bodies of the
Parties on fulfillment of the transaction under the conditions established by
the present Contract.
2.5. The Buyers shall warrant that they have obtained the preliminary
consent of the Federal Antimonopoly Service of Russia on acquiring of Issuers'
SP.
III. PRICE OF THE CONTRACT AND THE PROCEDURE OF SETTLEMENT OF THE PARTIES
3.1. The Buyers shall undertake to accept the Property and to pay for it
under the following price:
Price of 100 registered ordinary uncertified shares of Closed joint-stock
company ((▇▇▇▇▇▇ channel)) shall make: 78,706 (Seventy eight thousand seven
hundred and six) US Dollars.
Price of 25 registered ordinary uncertified shares of Closed joint-stock
company "Television company "VarianT" shall make: 81,855 (eighty one thousand
eight hundred and fifty five) US Dollars.
Price of 100 % participation share in the charter capital of Society with
limited responsibility "Television company "T-8" shall make 59,000 (fifty nine
thousand) US Dollars.
Price of the technical equipment specified in Appendix 1 to the present
Contract shall make: 118,449 (one hundred eighteen thousand four hundred and
forty nine) US Dollars, including VAT (18 %) in the amount of 18,068.49
(eighteen thousand sixty eight 49/100) US Dollars.
The price of the Contract shall make: 338,010 (three hundred thirty eight
thousand and ten) US Dollars, including VAT (18 %) in the amount of 18,068.49
(eighteen thousand sixty eight 49/100) US Dollars.
3.2. Payment of the price of the Contract shall be executed by the Buyers
in roubles at the Central bank RF exchange rate on the payment date.
3.3. The Buyers shall undertake to pay to the Sellers the price of the
Property by its transfer to the settlement account of the Sellers not later than
3 (three) banking days from the moment of passing to the Buyers of ownership
title to the Property under the procedure established by Section IV of the
present Contract. The price of the Contract specified in para 3.1. shall include
all possible taxes that can arise with the Sellers in connection with
realization of the Property pursuant to the legislation of Russia on taxes and
duties.
3.4. The Buyers shall be obliged to present to the Sellers the original
document on execution of payments according to para 3.3 of the present Contract
with the mark of thebank on execution.
The Buyers can present a copy of the specified document upon the consent of
the Sellers.
IV. PASSING OF OWNERSHIP TITLE TO THE PROPERTY
4.1. The Buyers shall get the ownership right to Issuers' SP from the
moment of making credit entry to depot account of the Buyers in OOO "Depozitary
Irkol" (further-Depositary), located at the address: ▇▇▇.▇, ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, to the participation share of OOO "Television company
"T-8" - from the moment of receipt by this Company of the notice in writing from
the Sellers on the transfer of the share, and to the technical equipment - from
the moment of signing by the Parties of acceptance-transfer acts.
4.2. Both Parties shall be responsible for execution of the actions
necessary for realization of transfer of the ownership title to SP from the
Sellers to the Buyers.
4.3. The Sellers shall be obliged within 7 (seven) days upon signing the
present Contract and receipt from the Buyers of the copies of letters regarding
acquiring of the Issuers' SP from FAS of Russia certified by them to sign and
transfer to the Buyers the mandate to transfer the SP from the depot account of
the Sellers to the depot account of the Buyers in the Depositary. Upon receipt
of such mandates the Buyers shall undertake to sign the specified mandates on
the same day and to transfer them to Depositary for realization of transfer of
the SP from the depot account of the Sellers to the depot account of the Buyers.
4.4. Not later than the next day after the date of transfer to the
Depositary by the Buyers of the mandates on transfer of SP signed by both
Parties according to para 4.3. of the present Contract the Sellers shall
undertake to present the Buyers copies of the following documents:
o Notices on carrying out the operation on transfer of SP from the depot
account of the Sellers to the depot account of the Buyers issued by
the Depositary to the Sellers upon the fact of conducting such
operation; and
o Extracts from the Sellers' depot account confirming writing off
(absence) of SP on the specified depot account issued by the
Depositary at their request.
4.5. Not later than the next day after the date of transfer to the
Depositary by the Buyers of the mandates on transfer of SP signed by both
Parties according to para 4.3. of the present Contract the Buyers shall
undertake to present the Sellers copies of the following documents:
o Notices on carrying out the operation on transfer of SP from the depot
account of the Sellers to the depot account of the Buyers issued by
the Depositary to the Buyers upon the fact of
conducting such operation; and
o Extracts from the Buyers' depot account confirming remittance
(presence) of SP on the specified depot account issued by the
Depositary at their request.
4.6. The Sellers shall be obliged within 1 month upon receipt from the
Buyers of the letter of FAS of Russia regarding purchase of 100 % of
participation share in the charter capital of OOO "Television company "T8"
certified by them to direct to the Company the notice on transfer of the share
and to present to the Buyer the certified copy of this notice with the mark of
the Company on its receipt.
4.7. The Sellers shall be obliged to transfer to the Buyers the technical
equipment according to Appendix 1 to the present Contract under
acceptance-transfer acts (the form of OC-1) within the term established by para
4.3. of the present Contract for passing to the Buyers of the mandate to
transfer SP.
V. FINAL PROVISIONS
5.1. In case of non-fulfillment or inadequate fulfillment of obligations
under the present Contract, the Party at fault shall bear the responsibility
under the procedure stipulated by the current legislation of the Russian
Federation and the present Contract.
5.2. In case of delay of execution of the obligation stipulated by para
3.3. of the present Contract, the Buyers shall pay to the Sellers penalty at the
rate of 0,5 % of the price of the Contract (para 3.1. of the present Contract)
per each day of delay.
5.3. Disputes arising upon execution of the present Contract, shall be
considered in the Arbitration Court of Moscow if there is not possibility to
solve them upon the agreement between the Parties.
5.4. The Present Contract shall inure from the moment of its signing, and
the obligations of the Parties of the present Contract to transfer, accept in
ownership and pay 100 % participation share in OOO "Television company "T8" -
from the moment of receipt by the Buyers pf the consent of FAS of Russia to the
Buyers' purchase of the specified share.
The present Contract shall terminate upon the appropriate execution by the
Parties of their obligations.
5.5. The Present Contract shall be made in duplicate, one for each Party.
6. ADDRESSES, REQUISITES AND SIGNATURES OF THE PARTIES
The Sellers:
Banking requisites INN 0814089015, acc 40702810500050570601 in ACB
"Promsvyazbank" (ZAO) Moscow, cor/acc 30101810600000000119,
BIC 04458319
Postal address Bld.▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Place of location Off.▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ Elista
Name ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
[Signatire, stamp]
The Buyers:
Banking requisites INN 7734218420, acc 40702810600000014019 in OJSC
"Alpha-bank" Moscow, cor/acc 30101810200000000593, BIC
044525593, OGRN 1027739082799
Place of location 12, 3rd ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[Signatire, stamp]
Appendix 1 to the Sale
and purchase Contract
dd.02.09.2004 04-KP/04
LIST OF TECHNICAL EQUIPMENT
## Equipment Quantity, pieces Serial number Cost, $ (with VAT)
----- ------------------------------------- ---------------- ------------- ------------------
1 Measuring-control complex for on-air
broadcasting, including: 2790
1.1 Indicator LM-16SK-V 1 550
1.2 14"TV monitor 2 420
1.3 Measuring set MTP-31 041258502 1 920
1.4 Measuring set APP-31 041258502 1 900
2 Dehydrator DB6D-150 1 1830
3 Set of broadcasting station, including: 113829
3.1 Equivalent of loading of 5 kW
8892-300+BA-300-230 1 4612
3.2 1 Manual switchboard VCh 1/2 1-5/8 " 1 1879
3.3 Directional coupler 1-5/8 " 1 838
3.4 Angular transition 90 grad. 1/5/8 "
with iners 4 1356
3.5 Cable 1+5/8 " 12 meters 1 572
3.6 Flange 1 / 5-8 " with iner 4 1052
3.7 Television transferring antenna 1 7500
system ASTU of panel type of UHF
range on the basis of 8 antenna
panels of COEL (Italy), operational
frequency range 36 TBK, maximal
radiation capacity 5 kW, circular,
Kye=9, horizontal polarization
3.8 TV transmitter SCT512UB, (IV-V), 1 96020
target capacity of 5 kW, joint
strengthening of picture and sound
signals, reserve activator and
automatic switch to reserve, LD MOS
technology, resistance of loading
50 Ohm, VLF=0 kHz, structurally
executed in the form of one 19 "
rack 44U, built-in air system of
cooling, completely prepared for
conversion into digital
broadcasting in DVB-T standard by
replacement of the activator,
manufactured by Screen Service
(Italy)
The total cost of the equipment shall make 118,449 (one hundred eighteen
thousand four hundred and forty nine) US Dollars.
[CTC-Region: Signature, stamp] [▇▇▇▇.C.: Signature, stamp]