Exhibit 10.82
AGENCY AGREEMENT
No. KT-355/1208
Moscow
Date: December 29,
2008
Closed Joint-Stock Company
TV DARYAL (OGRN 1027739313205)
, hereinafter referred to as the
Principal , represented by V.V. Kartashkov, General
Director, acting on the basis of the Articles of Association, on
the one part, and
Closed Joint-Stock Company
Kompaniya TSV (OGRN 5077746859757), hereinafter referred to as the Agent ,
represented by S.A. Vasiliev, General Director, acting on the basis
of the Articles of Association, on the other part, hereinafter
jointly referred to as the Parties, have entered into this
Agreement as follows:
1. Definitions
1.1. For the purpose of interpretation of the terms
and conditions of the present Agreement the terms and expressions
specified below shall have the following meanings:
1.1.1. Network program
block: means a TV
DARYAL ’s program (a set of audiovisual messages and
materials (broadcasts, programs, television and cinema films,
advertisements, commercials, advertising materials, etc.)
disseminated by the Principal on the territory of the Russian
Federation for the general public with the use of television
broadcast facilities (Registration Certificate SMI EL
No. FS77-22443 of November 30, 2005, Television Broadcast
Licenses TV No. 13214 of March 19, 2008; TV
No. 13155 of March 06, 2008; TV No. 11184 of
January 31, 2007; TV No. 10168 of May 29, 2006; TV
No. 10259 of June 09, 2006, and other Television
Broadcast Licenses issued to the Prinicipal by an authorized state
authority during the duration of the present Agreement).
1.1.2. Advertising:
means information dissemindated by
any method, in any form, with the use of any media, addressed to an
unlimited audience and aimed at attracting attention to the
advertised item, building or maintaining interest therein and
promoting it in the market.
1.1.3. Commercial:
means an audiovisual
production containing advertising.
1.1.4. Teleshop:
means a commercial broadcast
advertising one or several advertised items (several goods, etc.),
bearing a reference to a contact telephone number or any other
means of communication with the help of which the the user can
order any of the items advertised in said commercial broadcast; the
duration of a commercial broadcast is at least 120 (one hundred
twenty) seconds.
1.1.5. Commercial in the Teleshop
formal: means a
commercial broadcast advertising one or several advertised items,
bearing a reference to a contact telephone number or any other
means of communication with the help of which the user can order
advertised goods. There are restrictions for showing a
commercial(s) in the Teleshop format in the Network Program
Block: such commercials cannot be shown from 19.00 to 01.11 (Moscow
time).
1.1.6. Television
advertisement: means an
advertising text videotaped for the purpose of being broadcast in
the Network Program Block. The Parties hereby agree that it shall
be prohibited to show television advertisements in the Network
Program Block.
1.1.7. Creeping line (crawler
message): means an
advertisement shown as an advertising text displayed during a
non-advertising program. The Parties hereby agree that it shall be
prohibited to show creeping lines in the Network Program
Block.
1.1.8. Interactive projects
(interactive element): mean program elements allowing the viewer to
participate in programs by making phone calls, sending short
telephone or electronic messages, or otherwise.
1.1.9. Sponsorship
advertising: means
advertising disseminated under the condition that a particular
person is to be mentioned as a sponsor.
1.1.10. Federal
advertising: means
advertising that is mandatory to be broadcast in the Network
Program Block, disseminated by the Principal on the territory of
the Russian Federation for the general public with the use of
television broadcast facilities.
1.1.11. Regional
advertising: means
advertising that is mandatory to be broadcast in the Network
Program Block and is disseminated by the Principal solely within
particular regions of Russia.
1.1.12. Political
advertising: means a type
of propaganda in the form of audiovisual productions with the use
of advertising methods and techniques, disseminated during the
elections appointment period and during elections to state bodies
and/or management bodies of any other level, containing signs of a
campaign as regards conducting a referendum or during the
conducting of a referendum, disseminated during the referendum
appointment period or during the referendum, according to
the
procedure stipulated by applicable
laws or other regulations. The Parties hereby agree that in the
context of the present Agreement political advertising shall
include public opinion polls during election campaigns, provision
of information to the electorate, advertising of commercial
activities of political parties and candidates.
1.1.13. Social
advertising: means
information disseminated by any method, in any form and with the
use of any media, addressed to an unlimited audience and aimed at
accomplishing charity or other objectives of value to the public as
well as at promoting the government’s interests.
Social advertising may not mention
any specific makes (models, articles) of goods, trademarks, service
marks or other means of their identification, any individuals or
legal entities except for mentioning governmental authorities,
other instruments of the government, local or municipal
authorities, municipal bodies that are not part of local
authorities, and sponsors.
1.1.14. Advertising
services: mean acceptance
by the Principal of the federal advertising (including social
advertising on a charge basis and commercials in the Teleshop
format) to be broadcast in the Network Program Block in the form of
commercials. Advertising services shall not cover: political,
sponsorship, regional advertising, social advertising on a free
basis, broadcast of teleshops and interactive projects.
1.1.15. Unauthorized
advertising: means
federal advertising (including social advertising on a charge
basis) broadcast by the Principal in the Network Program Block at
its own discretion without obtaining the Agent’s prior
written consent.
Unauthorized advertising shall not
include:
a) advertising bumpers of the
Principal broadcast at the beginning and at the end of advertising
blocks, that do not contain advertisements of third
parties.
1.1.16. Clients:
mean advertisers and any other third
parties representing advertisers’ interests pursuant to
corresponding agreements.
1.1.17. Principal’s actual
gross revenue shall
consist of:
·
Total operating revenue, i.e. the total cost of actually
rendered services connected with the broadcast of the federal
advertising, less the value-added tax, under transactions conducted
by the Agent with Clients within the framework of the execution of
the present Agreement, as well as under transactions conducted by
the Principal at its discretion (or by persons authorized by the
Principal) based on the Agent’s written agreement;
·
total
non-operating revenue obtained by the Agent ( fines,
penalties and other revenue, including that received as
compensations) under transactions conducted by the Agent with
Clients for the purpose of executing the present
Agreement.
1.1.18. Reporting
period: means one
calendar month.
1.1.19. Entering into transactions: means
performance of actions aimed at creating, changing or terminating
civil rights and obligations (condlucing, amending (approval of
amendments), including agreement extension and termination, as well
as performance of physical actions resulting in legally binding
consequences).
2. Scope of the
Agreement
2.1. Pursuant to the present Agreement the Agent
shall perform, in its own name and in return for a fee, at the
Principal’s instruction, on its own behalf but at the
Principal’s expense, legal and other acts as regards
the sale to Clients of Advertising Services rendered by the
Principal, commencing on January 1, 2009, 06.00 (Moscow
time).
2.2. The Principal shall pay to the Agent a fee for
performing legal and other acts stipulated in Paragraph 2.1 of the
Agreement in such amounts and according to the procedure stipulated
hereunder.
2.3. The Principal undertakes to disseminate the
federal advertising provided by the Agent based on agreements
signed with Clients pursuant to the present Agreement within the
whole Network broadcast territory.
If, during the duration of the
present Agreement, the Principal’s broadcast area broadens,
the Principal shall disseminate the federal advertising within all
and any additional broadcast coverage areas resulting from said
broadening.
2.4. The Principal shall, at the Agent’s
demand (to enable the Agent to sign agreements with Clients for
selling services connected with the placement of the federal
advertising), provide, within 60% (sixty percent) of the
advertising time, such amount of the Network broadcast minutes as
required by the Agent for performing its obligations. Said amount
shall be calculated by the Parties based on the arithmetic mean
value of the Network broadcast time a day: 19 (nineteen) hours
(hereinafter referred to
as the broadcast volume) and the
total broadcast time volume allocated for broadcasting commercials
in the amount of 15% (fifteen percent) during an astronomic
hour.
2.5. The Agreement shall not cover political,
sponsorship, regional advertising, social advertising on a free
basis, including advertising in teleshops, interactive
projects.
3. Obligations of the
Parties
3.1. Obligations and rights in connection with
entering into transactions and approving their terms
3.1.1. The Principal shall vest the Agent with the
right to perform legal and other acts in connection with the sale
of Advertising Services without any additional approval on the part
of the Principal, and the Agent shall contract the sale of said
services to the Clients being first and foremost guided by the best
interests of the Principal, the terms and conditions of the present
Agreement, the Principal’s instructions as to the terms and
the procedure related to the pricing of advertising services in
agreements with Clients, stipulated in Attachment No. 1 to the
present Agreement as well as any other attachments and addenda
thereto.
3.1.2. The Agent shall seek to secure the best possible
conditions for the Principal when signing agreements with Clients
(“Client Agreements”). The Agent may, subject to the
Principal’s consent, enter into Client Agreements on terms
other than those stipulated in Attachment No. 1, if it was
impossible to obtain better contractual conditions, and, where by
contracting on terms other than those stipulated in Attachment
No. 1, the Agent averted even more adverse consequences for
the Principal.
3.1.3. When entering into Client Agreements the Agent
shall set forth the following provisions:
“1. The Client shall be fully
responsible for the content and design of the advertisements placed
under the Client Agreement, for any infringement of copyrights and
related rights with respect to the works and objects of related
rights being part of the advertisement. All and any financial
claims, including from the authors and owners of related rights,
with respect to the advertisement shall be settled by the Client on
its own and at its expense.
If, following the broadcast of the
advertisement provided by the Client, the Agent and/or the
Principal become subject to third party claims, as well as if the
Agent and/or the Principal suffer any negative consequences in the
form of financial penalties, the Client shall indemnify the Agent
and/or the Principal against all and any damages incurred as a
result of such infringement and shall pay a fine in the amount of
the financial penalties incurred by the Agent and/or the
Principal.
2. The Client shall be required to
present to the Agent duly certified copies of licenses if the
advertised activity is subject to licensing; certificates of
conformity if the advertised products (services) are subject to
mandatory certification; and registration certificates if the
advertised products are subject to the state registration. At the
Agent’s request, the Client shall provide within two days
documentary proof of the reliability of the information contained
in the advertisement.
3. If, during any calendar year
during the duration of the Client Agreement, the officially
published US dollar exchange rate fluctuates by more than ±
15% (hereinafter referred to as the “allowed exchange rate
corridor” or the “corridor”) against the exchange
rate as of January 1 of the respective year (hereinafter
referred to as the “reference exchange rate”), i.e. if
on any day, during the duration of the Agreement (hereinafter
referred to as the “exchange rate deviation date”) the
US dollar exchange rate deviates by more than 15% against the
reference exchange rate,
and
if durng 30 (thirty) calendar days
following the exchange rate deviation date the average weighted US
dollar exchange rate remains outside said corridor,
the parties (the Agent and the
Client) shall regard, as per the terms and conditions of the Client
Agreement, such exchange rate deviation as a particular case of
force majeure stipulated by the corresponding agreement.
Note: For the purpose of this
paragraph:
“US dollar exchange
rate” shall mean the official rate of US follar to Russian
rouble set by the Central Bank of the Russian Federation as of the
respective date.
“Average weighted exchange
rate” shall mean the average weighted exchange rate of US
dollar to Russian rouble calculated according to the following
formula:
AW =
