Exhibit 10.24
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AGREEMENT
By and Among
STORYFIRST COMMUNICATIONS, INC.,
OAO ALFA BANK,
and
XXXXXX VENTURES LIMITED
Dated July 29, 2003
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AGREEMENT
This Agreement (the "Agreement") is made and entered into this 29 day
of July, 2003 by and between:
(1) StoryFirst Communications, Inc., a Delaware corporation (the
"Company");
(2) OAO Alfa Bank, an open joint stock company, organized and existing
under the laws of the Russian Federation ("Alfa Bank"), represented by
its President, Xxxx Xxxx, acting under power of attorney; and
(3) Xxxxxx Ventures Limited, a limited liability company organized
under the laws of the British Virgin Islands ("Xxxxxx," and together
with Alfa Bank, the "Alfa Entities").
The Company and the Alfa Entities are hereinafter sometimes referred to
individually as a "Party" and collectively as the "Parties".
PREAMBLE
WHEREAS, Alfa Capital Holdings (Cyprus) Limited, a private limited
liability company incorporated under the laws of Cyprus ("ACC"), desires to own
a 25% interest in the Company and pursuant to that certain Stock Purchase
Agreement of even date herewith between the Company and ACC (the "SPA") will
purchase an interest of up to 25% of the Company;
WHEREAS, ACC is an affiliate of the Alfa Entities; and
WHEREAS, as a condition to the Company entering into the SPA, the
Company requires the Alfa Entities to agree to perform certain covenants and
provide certain representations and warranties as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall
have meanings ascribed to them in the SPA.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Alfa Entities. As a
material inducement to the Company's entry into the SPA and
the performance of the transactions contemplated thereby and
acknowledging that the Company is entering into this Agreement
and the SPA in reliance on the representations and warranties
in this Section 2.1, each of the Alfa Entities represents and
warrants, jointly and severally with the other Alfa Entity, to
the Company that as of the date of this Agreement and the
Closing Date:
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2.1.1 Due Registration and Corporate Power. Each Alfa
Entity is duly organized and registered and validly
existing under the laws of the jurisdiction of its
creation, has the full power and authority to own and
dispose of the assets it owns and to perform its
obligations under this Agreement and its foundation
and/or constituent documents are in full force and
effect.
2.1.2 ACC Affiliated Party. ACC and Alfa Bank are under
common control in that the sole shareholder of ACC is
the ultimate owner of Alfa Bank.
2.1.3 Authorization. The execution, delivery and
performance of this Agreement have been duly
authorized by all necessary action of the governing
bodies of each Alfa Entity.
2.1.4 Enforceability of Obligations. This Agreement has
been duly executed and delivered by each Alfa Entity
and, assuming the due authorization, execution and
delivery hereof by the Company, constitutes its
legal, valid and binding obligation, enforceable
against it in accordance with its respective terms,
except to the extent that such enforcement may be
subject to bankruptcy, insolvency, reorganization or
other similar laws now or hereafter in effect
relating to creditors' rights and remedies generally.
2.1.5 Ownership of the CTC Shares. As of the Closing, ACC
shall be the owner of the CTC Shares with good and
valid title thereto, free and clear of any mortgages,
liens, security interests, claims and other
encumbrances and upon transfer to the Company under
the SPA the CTC Shares will be validly issued and
outstanding in the name of the Company, fully paid
and free and clear of any mortgages, liens, security
interests, claims and other encumbrances.
2.1.6 Ownership of the Loan. As of the Closing, ACC shall
be the owner of the Loan with good and valid title
thereto, free and clear of any mortgages, liens,
security interests, claims and other encumbrances and
upon transfer to the Company under the SPA the Loan
will be free and clear of any mortgages, liens,
security interests, claims and other encumbrances.
The Loan will constitute a legal, valid and binding
obligation of CTC enforceable against it in
accordance with the terms thereof, and all Government
Approvals in connection with the making, assignment
and repayment of the Loan have been, or by the
Closing will be, obtained and in full force and
effect.
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2.1.7 Noncontravention. Subject to compliance with the
applicable requirements of the Xxxx-Xxxxx-Xxxxxx Act
and the Russian Competition Act in connection with
the transactions contemplated by the SPA, neither the
execution and delivery by the Alfa Entities of this
Agreement, nor the consummation by the Alfa Entities
of the transactions contemplated hereby, will (a)
conflict with or violate any provision of the
respective constituent documents of either Alfa
Entity, (b) require on the part of either Alfa Entity
any notice to or filing with, or any permit,
authorization, consent or approval of, any
Governmental Authority, (c) conflict with, result in
a breach of, constitute (with or without due notice
or lapse of time or both) a default under, result in
the acceleration of obligations under, create in any
party the right to terminate, modify or cancel, or
require any notice, consent or waiver under, any
contract or instrument to which either Alfa Entity is
a party or by which either Alfa Entity is bound or to
which any of their respective assets is subject, (d)
result in the imposition of any security interest,
lien, charge or encumbrance upon any assets of either
Alfa Entity or (e) violate any order, writ,
injunction, decree, statute, rule or regulation
applicable to either Alfa Entity or any of their
respective properties or assets.
2.1.8 Litigation. Neither Alfa Entity nor ACC is a party to
any action, suit, investigation or proceeding pending
(or, to the knowledge of any Alfa Entity, threatened)
against it or affecting its property before any
judicial, arbitral or administrative body that, if
determined adversely to its interests, would
materially and adversely affect the ability of such
Alfa Entity to perform its obligations under this
Agreement or give the representations set forth
herein or of ACC to perform its obligations under the
SPA or any other Transaction Document.
2.1.9 No Claims. No Alfa Entity has any right to any claim
or compensation from the Company in connection with
the transfer of the CTC Shares or the assignment of
the Loan under the SPA. CTC has no outstanding
indebtedness to any Alfa Entity or any of their
affiliates other than the Loan.
2.2 Representations and Warranties of the Company. As a material
inducement to the entry into this Agreement by the Alfa
Entities and the performance of the transactions contemplated
hereby and acknowledging that the Alfa Entities are entering
into this Agreement in reliance on the representations and
warranties in this Section 2.2, the Company represents and
warrants to the Alfa Entities that as of the date of this
Agreement and the Closing Date:
2.2.1 Company's Due Registration and Corporate Power. The
Company is duly organized and registered and validly
existing under the laws of the jurisdiction of its
creation.
2.2.2 Authorization by the Company. The execution, delivery
and performance of this Agreement have been duly
authorized by all necessary action of governing
bodies of the Company.
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2.2.3 Enforceability of the Company's Obligations. This
Agreement has been duly executed and delivered by the
Company and, assuming the due authorization,
execution and delivery hereof by each Alfa Entity,
constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms,
except to the extent that such enforcement may be
subject to bankruptcy, insolvency, reorganization or
other similar laws now or hereafter in effect
relating to creditors' rights and remedies generally.
2.2.4 Noncontravention. Subject to compliance with the
applicable requirements of the Xxxx-Xxxxx-Xxxxxx Act
and the Russian Competition Act in connection with
the transactions contemplated by the SPA, neither the
execution and delivery by the Company of this
Agreement, nor the consummation by the Company of the
transactions contemplated hereby, will (a) conflict
with or violate any provision of the respective
constituent documents of the Company, (b) require on
the part of the Company any notice to or filing with,
or any permit, authorization, consent or approval of,
any Governmental Authority, (c) conflict with, result
in a breach of, constitute (with or without due
notice or lapse of time or both) a default under,
result in the acceleration of obligations under,
create in any party the right to terminate, modify or
cancel, or require any notice, consent or waiver
under, any contract or instrument to which the
Company is a party or by which the Company is bound
or to which any of its assets is subject, (d) result
in the imposition of any security interest, lien,
charge or encumbrance upon any assets of the Company
or (e) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company
or any of its properties or assets.
2.3 Survival of Representations and Warranties. The
representations and warranties of the Purchaser and the
Company contained in Sections 2.1 and 2.2, respectively, shall
survive the execution and delivery of this Agreement, and all
statements contained in any certificate or other instrument
delivered by one Party hereunder shall be deemed to constitute
representations and warranties made by such Party and no
investigation by the other Party shall detract from, or
diminish the scope of, any representation or warranty or such
Party's reliance thereon.
ARTICLE 3
CONDUCT OF BUSINESS; EXCLUSIVE DEALING
3.1 Certain Conduct by the Alfa Entities. At all times from the
date of this Agreement to the Closing Date, each of the Alfa
Entities shall conduct its respective businesses in such a
manner that on the Closing Date the representations and
warranties with respect to the Alfa Entities and ACC contained
in this Agreement shall be true, accurate and complete, as
though such representations and warranties were made on and as
of such date.
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3.2 Certain Conduct by the Company. At all times from the date of
this Agreement to the Closing Date, the Company shall conduct
its business in such a manner that on the Closing Date the
representations and warranties with respect to the Company
contained in this Agreement shall be true, accurate and
complete, as though such representations and warranties were
made on and as of such date.
3.3 Exclusive Dealing. During the period from the date of this
Agreement to the Closing Date, no Alfa Entity shall take any
action to, directly or indirectly, encourage, initiate or
engage in discussions or negotiations with, or provide any
information to, any Person other than the Company or its
representatives or attorneys, concerning any purchase of the
CTC Shares.
ARTICLE 4
ADDITIONAL COVENANTS
4.1 Approvals. Each of the Parties shall (i) use its best efforts
to obtain all corporate approvals, third party consents and
Government Approvals that are necessary or appropriate for
such Party's execution and delivery of this Agreement, or its
performance of the transactions contemplated hereby or thereby
and (ii) keep the other Party informed at reasonable intervals
of all such approvals and consents and of the stage of
completion of receipt thereof.
4.2 Alfa Entities Further Assurances. Each of the Alfa Entities,
from time to time after the Closing Date, at the Company's
request, shall take such other actions and execute and deliver
such other documents, certificates, instruments of conveyance
and further assurances as the Company may reasonably request
in order to vest more fully and effectively in the Company all
rights and ownership in, and title to, and to put the Company
more fully in possession of the CTC Shares and/or the Loan, or
to carry out, evidence or confirm the intended purposes of
this Agreement.
ARTICLE 5
INDEMNIFICATION
The Parties hereby agree that, in the event of breach by any Party of
any representation, warranty, obligation or covenant contained in this
Agreement, the breaching Party shall indemnify and hold harmless the
other Party and any of its shareholders, directors, officers,
employees, representatives, agents and advisors against any losses,
claims, actions, damages or liabilities (including, without limitation,
legal, accounting and other fees and expenses) directly or indirectly
arising or resulting from or in any way attributable to such breach by
the breaching Party.
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ARTICLE 6
DISPUTE RESOLUTION; GOVERNING LAW
6.1 Dispute Resolution. Any controversy between the Parties,
including the construction or application of any of the terms,
covenants or conditions of this Agreement shall on written
request of one Party served upon the other, be submitted to
arbitration and be governed by the rules of the American
Arbitration Association in effect on the date of referral to
arbitration, except that in the event of any conflict between
those rules and this Section 6.1, this Section 6.1 shall
govern. The arbitration shall take place in New York, New York
and shall be conducted in English. The arbitration shall be
conducted by a single neutral arbitrator selected in
accordance with the rules of the American Arbitration
Association. The arbitrator (i) shall not have any power or
authority to add to, alter, amend or modify the terms of this
Agreement and (ii) shall interpret and construe this Agreement
in accordance with the laws of the State of New York and the
United States of America. The cost of such arbitration,
including reasonable attorney's fees, shall be borne by the
losing Party or in such proportion as the arbitrator shall
decide.
6.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
and the United States of America, without giving effect to the
conflict of laws rules thereof.
ARTICLE 7
NOTICE
7.1 Notice. Except as otherwise provided in this Agreement, any
and all notices, consents, waivers, instructions, requests,
votes, and other documents or communications shall be in
writing in English and signed by the person giving such notice
or other communication. Notice and other documents and
communications shall be deemed properly given only if they are
(i) delivered personally; or (ii) transmitted by fax or by
another instantaneous means of transmission (with confirmation
of receipt in the case of transmission by fax or other
instantaneous means of transmission) to the following
addresses:
(a) if to the Company, to:
StoryFirst Communications, Inc.
x/x Xxxxx Xxxxx
00 0xx Xxxxxxxxxxxxxx xx.
000000 Moscow
Russian Federation
Tel.: x0 (000) 000-0000
Fax: x0 (000) 000-0000
Attention: President
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With a copy (which copy shall not be deemed notice
hereunder) to:
Xxxx and Xxxx
Xxxxx Castle
00 Xxxxx Xxxxxx
Xxxxxx
Xxxxxxx XX0X 0XX
Tel.: x00 (00) 0000-0000
Fax.: x00 (00) 0000-0000
Attention: Xxxxxx Xxxxxxx
(b) if to Alfa Bank, to:
Alfa Bank
12, Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
000000 Xxxxxx, Xxxxxx
Tel: x0 (000) 000-00-00
Fax: x0 (000) 000-00-00
Attention: Xx. Xxxxx Xxxxxxxx
(c) if to Xxxxxx, to:
Xxxxxx Ventures Limited, B.V.I.
Trident Xxxxxxxx, P.O. Box 146
Road Town, Tortola,
British Virgin Islands
Tel.:
Fax:
Attention: Xx. Xxxxx Xxxxxxxx
or at such address that any Party, as the case may be, may
designate by official notice to the other Parties for the
receipt of such documents or communications.
7.2 Receipt. All such notices or other communications shall be
deemed to have been given or received: (i) upon receipt, if
personally delivered; and (ii) upon confirmation of receipt,
if notice is given by electronic facsimile.
ARTICLE 8
MISCELLANEOUS
8.1 Expenses. Each Party hereto shall be responsible for all costs
incurred by it relating to negotiation, execution and delivery
of this Agreement and performance of the transactions
contemplated hereby and thereby.
8.2 Publicity. Except as otherwise required by Applicable Law, no
Party shall issue any press release or make any other public
statement, in each case relating to, connected with or arising
out of this Agreement or the matters contained herein, without
obtaining the prior written approval of the other Parties to
the contents and the manner of presentation and publication
thereof.
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8.3 Survival. All covenants, agreements, representations and
warranties made herein shall survive the execution and
delivery of this Agreement and the issuance of the Shares
contemplated hereby.
8.4 Captions. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement.
8.5 No Assignment. No Party to this Agreement may assign or
otherwise transfer, in whole or in part, any of its rights or
obligations arising hereunder to any third parties without the
prior written approval of the other Parties hereto.
8.6 Entire Agreement. This Agreement, the SPA, the Loan
Assignment, the Stockholders' Agreement and the Option
Agreement shall represent the entire agreement and
understanding of the Parties hereto on the subject matter
hereof and supersedes all previous negotiations, agreements or
understandings between or among some or all of them, whether
written or oral.
8.7 Amendments. No amendment or modification of this Agreement
will be effective unless it is in writing and duly executed by
each Party hereto.
8.8 No Action on Behalf of Other Party. Except as otherwise
provided in this Agreement, no Party shall, without the prior
written consent of the other Party, in any manner use the name
of, act or purport to act for or as a representative or agent
of, or enter into any obligations or responsibilities on
behalf of the other Party.
8.9 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof will not
in any way be affected or impaired thereby, and the Parties
shall negotiate in good faith concerning alternative means of
achieving the goals and objectives underlying the invalid or
unenforceable provision.
8.10 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of
action in or on behalf of any Person other than the Parties
hereto.
8.11 No Presumption. This Agreement shall be construed without
regard to any presumption or other rule requiring construction
against the Party drafting or causing this Agreement to be
drafted. References to any document, instrument or agreement
shall (i) include all addenda, exhibits and other attachments
thereto; (ii) include all documents, instruments or agreements
issued or executed in replacement thereof; and (iii) mean such
document, instrument or agreement as amended, modified and
supplemented.
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8.12 Counterparts. This Agreement may be executed in two or more
counterparts, and by the Parties hereto in separate
counterparts, each of which, when so executed and delivered,
shall be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties hereto has duly executed this Agreement,
all as of the day and year first above written.
STORYFIRST COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
OAO ALFA BANK
By: /s/ Xxxxx Hven
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Name: Xxxxx Hven
Title: President
XXXXXX VENTURES LIMITED
By: Illegibile
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Name:
Title:
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