DATED 20 June 1997
(1) MYRIAD INTERNATIONAL HOLDINGS BV
(2) MP COMMUNICATIONS BV
(3) NETHOLD MEDITERRANEAN BV
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SHAREHOLDERS AGREEMENT
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Mallinicks
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TABLE OF CONTENTS
1. RECITALS ..................................................... 3
2. DEFINITIONS AND INTERPRETATION ............................... 3
3. CONDITION .................................................... 6
4. THE BUSINESS OF THE COMPANY .................................. 6
5. BOARD OF MANAGEMENT AND SUPERVISORY BOARD .................... 6
6. ACCOUNTS ..................................................... 7
7. FINANCING .................................................... 7
8. DIVIDENDS .................................................... 8
9. MATTERS REQUIRING A TWO-THIRDS MAJORITY ...................... 8
10. PROVISIONS RELATING TO TRANSFERS OF SHARES ................... 9
11. GOVERNING LAW AND ARBITRATION ................................ 11
12. RESTRICTIVE COVENANTS ........................................ 12
13. CONFIDENTIALITY .............................................. 13
14. DURATION AND TERMINATION ..................................... 13
15. NOTICES ...................................................... 13
16. GENERAL ...................................................... 14
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THIS AGREEMENT
is made on 20 June 1997
BETWEEN
(1) MYRIAD INTERNATIONAL HOLDINGS BV, a company incorporated in The
Netherlands, whose registered office is at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (" Myriad"); and
(2) MP COMMUNICATIONS BV a company incorporated in The Netherlands, whose
registered office is at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ("MPCom"); and
(3) NETHOLD MEDITERRANEAN BV, a company incorporated in The Netherlands
whose registered office is at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (the "Company").
1. RECITALS
MPCom and Myriad have agreed to enter into this agreement for the
purpose of regulating their relationship as shareholders in the Company
pursuant to the acquisition by MPCom of shares in the Company.
2. DEFINITIONS AND INTERPRETATION
In this agreement -
2.1 clause headings are inserted for convenience only and shall
not be taken into account in its construction;
2.2 unless the context clearly indicates a contrary intention, an
expression which denotes any one gender includes the other
genders, a natural person includes an artificial person and
vice versa, the singular includes the plural and vice versa
and the following expressions bear the meanings assigned to
them below and cognate expressions bear corresponding meanings
-
"Agreed Proportions" - such proportions as equal, at the
time when any shareholders' funds
are contributed by Shareholders
under clause 7, the percentages
which the nominal value of the
shares owned by the Shareholders
respectively in the issued share
capital of the Company bears to the
combined nominal value of all the
issued shares in the capital of the
Company (taken as a whole);
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"Affiliate" - in relation to any Person, any other
Person which, directly or
indirectly, ie: (i) is controlled by
that Person; or (ii) controls that
Person; or (iii) is under common
control with that Person;
"the Articles" - the Articles of Association of the
Company at the date of completion
of the Sale Agreement, as such
Articles may be amended from time to
time;
"the Auditors" - the auditors from time to time of
the Company;
"Board of Management" - the board of managing directors
("raad van bestuur") of the Company;
"Business" - the business of the Company set out
in clause 4;
"Encumbrance" - includes any mortgage, charge
(whether legal or equitable),
pledge, lien, hypothecation or other
encumbrance securing any obligation
of any Person or any other type of
preferential arrangement (including,
without limitation, title transfer
and retention arrangements (other
than those entered into in the
ordinary course of trading), sale
and leaseback, sale and purchase or
deferred purchase arrangements and
the discounting or factoring of
receivables on recourse terms)
having a similar effect or any other
arrangement having substantially the
same economic effect as any of the
foregoing;
"Loan Claims" - the amount of NLG 150,496,000 (one
hundred and fifty million four
hundred and ninety six thousand
Dutch Guilders) advanced by Myriad
to the Company as shareholder loan
contributions as at 31 March 1997
and the amount of NLG 27,473,000
(twenty seven million four hundred
and seventy three thousand Dutch
Guilders) advanced by
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Myriad to the Company as loans on
current account as at 31 March 1997
together with such other amounts as
have been or may be advanced by
Myriad to the Company from time to
time;
"Pay-TV" - the exhibition or transmission,
whether from inside or outside
Greece, and whether by wire,
telephone wire, over the air, cable,
optic fibre, satellite or microwave
signals, of audio-visual programming
or services substantially in
scrambled or encrypted format, to a
subscriber in Greece, capable of
being unscrambled or decrypted by
individually addressable decoders or
equivalent devices, where a fee is
payable by such subscriber (in
addition, if applicable, to being
charged by the person transmitting
the signal incorporating such
programming) for the right to view
or participate in such television
programmes in unencrypted format;
"Person" - any person, firm, company,
corporation or other incorporated or
unincorporated body;
"the Parties" - MPCom, Myriad and the Company;
"the Sale Agreement" - the Agreement of even date between
the Parties setting out the terms
and conditions of the acquisition by
MPCom of shares in the Company;
"share" - a share in the capital of the
Company of whatever class;
"the Shareholders" - all those Persons holding shares in
the capital of the Company from time
to time;
"Subsidiary" - in relation to any Person, any other
Person directly or indirectly
controlled by such Person, provided
that for the purposes of this
definition "control" means the
holding, whether directly or
indirectly, of in excess of 50% of
the equity in respect of such
Person;
"Supervisory Board" - the board of supervisory directors
of the Company;
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"Transfer" - in relation to any share or any
legal or beneficial interest in a
share, includes (i) the sale,
transfer, lease, assignment, grant,
renunciation, alienation, or
disposal of such share or of any
right or interest which a Person may
have in the Company as a result of
such right or interest in that
share; (ii) entering into any
agreement in respect of the votes
attached to such share; (iii)
creating or granting any Encumbrance
over or in respect of such share;
and (iv) any agreement (whether or
not subject to conditions) to do or
create or grant any of the
aforegoing.
3. CONDITION
This agreement is subject to the conclusion and becoming unconditional
of the Sale Agreement save for the suspensive condition in that
agreement which requires this agreement to become unconditional and,
accordingly, if this condition is not fulfilled by 21 July 1997 or such
later date as may be agreed between MPCom and Myriad, then this
agreement shall cease to have effect and each Party shall have no claim
under it against the other, save in respect of prior breach.
4. THE BUSINESS OF THE COMPANY
4.1 The Business of the Company shall be the holding of the
interests (including without limitation equity interests) in
companies which conduct, or participate in the provision of
technology or services relating or ancillary to, the
acquisition, management, compilation and/or distribution of
television programmes or programme services via Pay-TV in
Greece and Cyprus and the conduct itself of such activities.
4.2 Each of the Shareholders shall not act to undermine the
interests of the Company, and shall not participate in any
activity which would be detrimental to the Business.
5. BOARD OF MANAGEMENT AND SUPERVISORY BOARD
5.1 The Supervisory Board shall comprise three directors
("Supervisory Directors") and the Board of Management shall
comprise at least two directors ("Managing Directors").
5.2 Myriad shall be entitled to nominate two persons for election
to the Supervisory Board and shall be entitled to nominate all
persons for election to the Board of Management (the "Myriad
Supervisory Directors" and the "Myriad Managing Directors"
respectively)
5.3 For so long as MPCom owns at least 30% (thirty percent) of the
shares it shall be entitled to nominate 1 (one) person for
election to the Supervisory Board (the "MPCom Supervisory
Director").
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5.4 Each Shareholder shall be entitled from time to time to remove
any of the persons nominated by it for election as Supervisory
Directors or as Managing Directors and nominate someone else
to take their place.
5.5 Each Shareholder undertakes to the others to cooperate to
ensure that the persons nominated from time to time by each
Shareholder as Supervisory or Managing Directors are duly
elected as such in accordance with this Agreement.
5.6 A quorum at meetings of Directors, whether of the Supervisory
Board or of the Board of Management shall be 2 (two)
Directors, consisting of at least 1 (one) Myriad Director.
5.7 If, at any meeting of either of the Boards, any Myriad
Director is not present then the Myriad Director who is
present at such meeting shall be entitled to exercise all the
voting rights of the Myriad Directors as if such absent Myriad
Director were present at such meeting.
5.8 The Company shall be managed by the Board of Management who
shall, inter alia, lay down general policies relating to the
conduct by the Company of the Business and each Managing
Director may represent and bind the Company.
5.9 Myriad shall procure that the Board of Management ensures that
the Company complies in all respects with all legislation or
regulations which may be applicable to the Company from time
to time.
6. ACCOUNTS
6.1 The Company shall at all times keep and maintain true and
accurate accounting and other financial records and other
books and records of the affairs of the Company.
6.2 The statutory accounts and related statements of the Company
shall be made up at the completion of each financial year of
the Company and the Shareholders shall procure that after the
end of each financial year and within the period required
under Dutch law -
6.2.1 there shall be prepared proper accounts in respect of
such financial year in accordance with the
legislation applicable in The Netherlands from time
to time and international standards and generally
accepted accounting principles and practices and that
the same shall be duly audited; provided that, where
such accounts reflect or consolidate information
concerning the Subsidiaries of the Company, such
information may not have been audited nor prepared in
accordance with such principles and practices but
will have been prepared in accordance with
international accounting standards; and
6.2.2 such audited accounts, together with the report of
the Directors thereon, shall be submitted by the
Directors to the annual general shareholders' meeting
of the Company for approval.
7. FINANCING
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7.1 Myriad shall procure that the Company is properly funded to
conduct the Business and to meet its obligations as and when
such obligations fall due. In this regard, Myriad shall use
reasonable endeavours to procure that the requirements of the
Company for working capital to finance its Business are met as
far as practicable by borrowing from banks and other similar
sources, on terms acceptable to the Company, as to interest,
repayment and security, but without allowing any prospective
lender the right to participate in the equity share capital of
the Company as a condition of any loan and, in addition,
without all of the Shareholders (and MPCom in particular)
being obliged to provide any guarantees, indemnities or other
security over their assets on behalf of the Company to any
prospective lenders to facilitate such loans.
7.2 If the Board of Management determines that borrowing from a
bank or other similar source is not possible or desirable,
they shall refer the matter to a meeting of Shareholders,
which meeting shall determine by majority vote the amounts of
additional funds required by the Company and the manner in
which such funds are to be made available whether by
subscribing for new shares in the Company or by way of
Shareholders loans to the Company or by the issue of new
shares to any third Party; provided that no Shareholder shall
be obliged to contribute any additional shareholder
contributions; provided further that if additional shareholder
loan contributions are made then such loans shall bear
interest at normal commercial interest rates prevailing in The
Netherlands.
7.3 If Shareholders do not contribute additional shareholder
contributions in the Agreed Proportions, whether by way of the
subscription for new shares in the Company or the making of
shareholder loan contributions which are subsequently
capitalised, then such Shareholders' percentage of interests
in the Company shall be varied accordingly.
8. DIVIDENDS
8.1 No dividends shall be declared or paid nor shall any
distribution of capital or profits be made until the repayment
in full of the Loan Claim.
8.2 In addition, if any Shareholder has contributed more loan
capital to the Company than it would have done if all the loan
capital had been contributed by the Shareholders in the Agreed
Proportions then the Company shall not pay any dividends or
make any distribution of capital or of profits unless and
until such excess loan claims of the Shareholder against the
Company have been repaid in full.
9. MATTERS REQUIRING A TWO-THIRDS MAJORITY
9.1 All decisions of the Board of Management, the Supervisory
Board and the Shareholders in general meeting shall be made by
simple majority vote; provided, however, that in relation to
the following matters a valid resolution of the Shareholders
and/or Directors shall only be adopted if Shareholders holding
not less than two-thirds of the votes exercisable by all
Shareholders vote in favour thereof:
9.1.1 a change to the nature of the Business;
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9.1.2 a change of the nationality of the Company; or
9.1.3 the incurring by the Company of any obligations
requiring guarantees or similar security to be given
by all of the Shareholders.
The question whether any resolution relating to any of the
above matters are adopted by the Shareholders shall be
determined in accordance with the provisions of the Articles
and Dutch company law.
9.2 If a deadlock arises because the Shareholders are unable to
adopt a resolution which deals with any of the matters listed
in clause 9.1 then -
9.2.1 the Shareholders shall, within 14 (fourteen) days
after the deadlock has arisen, prepare and circulate
to each other a memorandum or other written statement
setting out their position on the matter in dispute
and their reasons for adopting such position. Such
memoranda or statements shall be considered by the
respective Chief Executives of the Shareholders who
shall use their reasonable endeavours to resolve such
dispute within 30 (thirty) days of the exchange of
the memoranda. If the aforesaid Chief Executives
agree on a resolution of the matter, the Shareholders
shall jointly exercise the voting rights and other
powers of control available to them in relation to
the Company to procure that such resolution is
promptly and fully carried into effect;
9.2.2 if the procedure set out in clause 9.2.1 fails to
resolve the deadlock, any of the Shareholders may
request by written notice in writing to the Company
and the other Shareholders that an attempt be made to
resolve the deadlock by way of mediation. If the
Shareholders are unable to agree on a mediator by the
majority stipulated in clause 9.1 within 21 (twenty
one) days of receipt by the Company of the request
for mediation, the mediator shall be nominated by the
President for the time being of the Netherlands
Mediation Institute (Stichting Nederlands Mediation
Instituut) in Rotterdam and the following procedure
shall be adhered to -
9.2.2.1 each individual Shareholder and 1 (one)
executive officer of each corporate
Shareholder shall be entitled to attend the
mediation, and no Shareholder shall be
entitled to any other representation;
9.2.2.2 the mediator shall in his absolute
discretion determine the nature and form of
the mediation with the sole aim of resolving
the deadlock by way of negotiation as soon
as possible;
9.2.2.3 the cost of the mediation as determined by
the mediator shall be borne by the
Shareholders pro rata to their respective
shareholdings.
10. PROVISIONS RELATING TO TRANSFERS OF SHARES
10.1 MPCom undertakes that it will not Transfer any of its shares
during this Agreement otherwise than in accordance with the
following provisions of this clause 10.
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10.2 MP Com shall be entitled to Encumber its shares in favour of
any Affiliate of MPCom with the prior written consent of
Myriad as to the identity of the Affiliate and the terms and
conditions of such Encumbrance ;
10.3 Right of First Refusal
10.3.1 If, at any time, MPCom wishes to Transfer any of its
Shares other than as set out in clause 10.2, it
shall, prior to making or becoming contractually
bound to make, any such Transfer, by notice in
writing to Myriad, offer (the "Offer") to sell all
(but not a part only) of its Shares to Myriad at the
"Offer Price", as determined in the manner set out
below. The Offer shall:
10.3.1.1 specify the Shares to which it relates (the
"Offered Shares"); and
10.3.1.2 stipulate a price (which shall constitute
the Offer Price), at which MPCom is prepared
to Transfer the Offered Shares. If MPCom has
received a bona fide written offer (the
"Third Party Offer") from a third Party (the
"Third Party") to purchase the entire legal
and beneficial ownership of the Offered
Shares for a cash price, a copy of such
Third Party Offer, showing the name and
address of the Third Party and the terms and
conditions offered by such Third Party,
shall be supplied to Myriad. In this case,
the price offered by such third Party for
the Offered Shares shall be set out in the
Offer and shall constitute the Offer Price.
Myriad shall keep and maintain the existence
and the terms of any such Third Party Offer
strictly confidential and shall only
disclose them within its own corporate
structure and to outside professionals on a
need to know basis. If a Third Party Offer
has been made then, save as specifically set
out herein, the Offer shall be subject,
mutatis mutandis, to the terms and
conditions contained in the Third Party
Offer. MPCom may not offer to sell its
shares except on an "all cash" basis.
10.3.2 The Offer shall be irrevocable and shall be open for
acceptance (in whole and not in part only) by Myriad
for a period of 30 (thirty) days following receipt of
the Offer. Acceptance shall be made by means of a
written notice, specifying the number of Offered
Shares in respect of which the Offer is being
accepted.
10.3.3 Should Myriad not accept the whole of the Offer as
provided above, then MPCom shall be entitled to sell
all (but not a part only) of the Offered Shares to
the Third Party on the terms and conditions set out
in the Third Party Offer or, where no Third Party
Offer had been made, to any bona fide third Party,
but at a price which shall not be less than that, and
on terms and conditions which are not, taken as a
whole, more favourable to the third Party purchaser
than
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those at which Myriad was entitled to purchase the
Offered Shares in terms of clause 10.3.1, provided
that MPCom shall, before selling the Offered Shares
to such bona fide third Party, in writing advise
Myriad of the identity of such third Party and the
terms and conditions on which such third Party is
prepared to purchase the Offered Shares, in which
case Myriad shall be entitled, for a period of 30
(thirty) days after receipt of the written advice as
aforesaid, to purchase the Offered Shares on the
terms and conditions at which such third Party is
prepared to do so.
10.3.4 Should MPCom not complete the sale of all the Offered
Shares within 120 (one hundred and twenty) days (or
such longer period as may be required by law to
obtain all required approvals of Governmental bodies)
after non-acceptance of the Offer by Myriad, then
MPCom's right to effect the sale to the third Party
shall terminate and the process set out in clause
10.3.1, 10.3.2 and 10.2.3 shall commence anew with
respect to any such Shares.
10.3.5 Following acceptance of the Offer by Myriad as set
out in clause 10.4 or clause 10.3.3, MPCom shall be
obliged to sell, and Myriad shall be obliged to
purchase, the Offered Shares at 10h00 on the date
falling 10 (ten) business days after the date of
acceptance, at the registered office of the Company
(or such other time, date and place as may be agreed
by MPCom and Myriad) upon the terms and conditions as
set out in such Offer or on the terms and conditions
which the bona fide third Party was prepared to do
so, as the case may be. Pending completion of such
purchase and sale, MPCom shall remain liable for all
its obligations to the Company.
10.3.6 Unless the transferee is an existing Shareholder, any
Transfer of Shares (and any registration thereof)
shall be subject to the condition precedent that:
10.3.6.1 the transferee enters into an agreement in
writing with the Company and Myriad in a
form reasonably acceptable to Myriad,
whereby the transferee agrees to be bound by
all of the provisions of this Agreement
(mutatis mutandis and insofar as they are
applicable) as those by which the transferor
is bound under this Agreement as a
Shareholder, as if it were an original
Shareholder and, where the context so
permits, as if each reference therein to the
transferor were always a reference to the
transferee in place thereof); and
10.3.6.2 the transferee notifies the Company and the
Shareholders of its address for service of
all notices and communications to be given
or made under this Agreement.
10.4 Myriad shall notify MPCom in writing at least thirty days in
advance of the transfer by Myriad of any of its shares.
11. GOVERNING LAW AND ARBITRATION
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11.1 This agreement shall be governed by and construed in all
respects in accordance with the laws of The Netherlands.
11.2 If any dispute arises at any time between any of the Parties
in connection with this agreement including without
limitation, the formation or existence of, the implementation
of or the interpretation or application of, the Parties'
respective rights and obligations in terms of or arising out
of this agreement or its breach or termination or the
performance or non-performance of any Party's obligations
hereunder or which relates in any way to any matter affecting
the interests of the Parties in terms of this agreement, and
the Parties are unable to resolve their dispute, any Party may
refer the matter in dispute, in the first instance, to the
respective chief executive officers of the Shareholders for
resolution.
11.3 All disputes arising in connection with this Agreement or
further agreements resulting therefrom, which after having
been referred under clause 11.2 shall not have been resolved
by the said chief executive officers within 21 (twenty-one)
days of having been so referred, shall be finally settled by
arbitration in accordance with the rules of the Netherlands
Arbitration Institute (Nederlands Arbitrage Instituut). The
arbitration tribunal shall be composed of three arbitrators.
The place of arbitration shall be Amsterdam, the Netherlands.
The arbitration procedure shall be conducted in the English
language. The arbitration tribunal shall decide in accordance
with the rules of law (overeenkomstig de regelen des rechts).
11.4 This clause 11 shall not preclude any Party from obtaining
interim relief on an urgent basis from a court of competent
jurisdiction pending any decision of the arbitrator.
11.5 The provisions of this clause -
11.5.1 constitute an irrevocable consent by the Parties to
any proceedings in terms hereof and no Party shall be
entitled to withdraw therefrom or claim at any such
proceedings that it is not bound by such provisions;
11.5.2 are severable from the rest of this agreement and
shall remain in effect despite the termination of or
invalidity for any reason of this agreement.
12. RESTRICTIVE COVENANTS
12.1 MPCom undertakes that it will not, and it shall procure that
its Affiliates shall not, either alone or in conjunction with
or on behalf of any other Person, or directly or indirectly,
do any of the following things while it is a Shareholder and
for a period of 6 (six) months after it ceases for any reason
to be a Shareholder -
12.1.1 carry on or be engaged or interested in any business
in Greece or Cyprus which competes with the Business
excluding any business in which MPCom or any of its
Affiliates is interested or engaged as at the date of
signature of this Agreement ; or
12.1.2 solicit the custom in Greece as a subscriber of any
Person who at any time in the 12 (twelve) months
prior to it ceasing to be a Shareholder was a
subscriber
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to the programming services of any Pay-TV licence
holder in which Company has an interest, whether
direct or indirect; or
12.1.3 solicit or entice away any employee of the Company;
or
12.1.4 use any business name, ▇▇▇▇ or style which may
suggest a connection with the Company excluding those
business names, marks and styles which are used by
MPCom at the date of signature of this Agreement; or
12.1.5 assist any other Person to do any of the foregoing
things.
12.2 It is agreed between the Parties hereto that whilst the
restrictions set out in clause 12.1 are considered fair and
reasonable, if it should be found that any of the restrictions
are void or unenforceable and if by deleting part of the
wording or substituting a shorter period of time or different
geographical limit or a more restricted range of activities
for the period of time, geographical limits or ranges of
activities set out in clause 12.1it would not be void, then
there shall be substituted such next less extensive period
and/or limit and/or activity or such deletions shall be made
as shall render clause 12.1 valid and enforceable.
13. CONFIDENTIALITY
Save as required by law or the requirements of any stock exchange or
other regulatory body, each of the Parties hereby undertakes to the
others that it will not at any time hereafter divulge or communicate to
any person (except to such of its employees, directors, officers or
advisers whose province is to know the same) at any time hereafter
(save with the written prior consent of the other Parties) any
confidential information or secret information concerning the Business
or the financial or contractual arrangements or other dealings or
affairs of the Company or of the other Parties to this Agreement, save
to the extent to which such information shall (other than by
unauthorised disclosure by that Party or any of its or their respective
employees, directors, officers or advisers) come within the public
domain.
14. DURATION AND TERMINATION
Except as otherwise provided herein, this agreement shall continue in
full force and effect until the earlier of the following events -
14.1 the Shareholders agreeing in writing to terminate this
agreement; or
14.2 an effective resolution being passed or a binding order being
made for the winding-up of the Company;
provided, however, that this agreement shall cease to have effect as
regards any Shareholder who ceases to hold any shares save for any
provisions hereof which are expressed to continue in force thereafter.
15. NOTICES
15.1 Notices and communications under this agreement shall be given
in writing and may be
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delivered to the relevant Party or sent by registered air mail or
facsimile to the address of that Party or that Party's facsimile number
specified in 15.2.
15.2 Notices and communications shall be addressed as follows:
15.2.1 if to ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇,
and/or the Hoofddorp 2132 HP,
Company The Netherlands
Attention: Chief Executive Officer
Telefax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
15.2.2 if to MPCom - ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telefax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
or such other address of a Party, person and/or fax number as that
Party shall have notified in writing to all other Parties.
15.3 Notices and communications shall be given and made in the
English language.
16. GENERAL
16.1 Representations
No Party shall be bound by any express or implied term, representation,
warranty, promise or the like not recorded in this agreement.
16.2 Variations
No addition to, modification, amendment or consensual
cancellation of this agreement shall have any force or effect
unless made in writing specifically referring to this
agreement and duly signed by the Parties.
16.3 Waiver
No indulgence which any Shareholder ("the Grantor") may grant
to any other ("the Grantee") shall constitute a waiver of any
of the rights of the Grantor, who shall not thereby be
precluded from exercising any rights against the Grantee which
may have arisen in the past or which may arise in the future.
16.4 Severance
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If any provision of this agreement or part thereof is rendered
void, illegal or unenforceable in any respect under any law,
the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
16.5 Time
Time shall be of the essence as regards the provisions of this
agreement, both as regards the times and periods mentioned
herein and as regards any times or periods which may, by
agreement between the Parties, be substituted for them.
16.6 Survival of Rights, Duties and Obligations
Termination of this agreement for any cause shall not release
a Party from any liability which at the time of termination
has already accrued to another Party or which thereafter may
accrue in respect of any act or omission prior to such
termination.
16.7 Costs
Each Party shall bear its own costs and expenses incurred by
it in connection with the preparation, negotiation and
conclusion of this agreement.
16.8 Assignment
None of the Parties shall be entitled to assign this agreement
or any of its rights and obligations hereunder except to a
transferee of shares in accordance with clause 10.2 or 10.3 of
this Agreement.
16.9 Conflict with Articles
In the event of any ambiguity or discrepancy between the
provisions of this agreement and the Articles, then unless the
application of the relevant provisions in the Articles are
mandatory in terms of Dutch law, the provisions of this
agreement shall prevail and accordingly the Parties shall
exercise all voting and other rights and powers available to
them so as to give effect to the provisions of this agreement
and shall further if necessary procure any required amendment
to the Articles.
16.10 No Partnership
Nothing in this agreement shall be deemed to constitute a
partnership between the Parties nor constitute any Party the
agent of any other Party for any purpose.
16.11 Further Assurance
Each Party shall cooperate with the others and execute and
deliver to the others such other instruments and documents and
take such other actions as may be reasonably requested from
time to time in order to carry out, evidence and confirm their
rights and the intended purpose of this agreement.
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IN WITNESS WHEREOF this agreement has been executed on the day and year first
above written.
SIGNED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ )
)
for and on behalf of )
MYRIAD INTERNATIONAL HOLDINGS BV ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
in the presence of: )
SIGNED BY )
▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇ )
for and on behalf of )
MP COMMUNICATIONS BV ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
in the presence of: )
▇▇▇▇▇ ▇▇▇▇▇
SIGNED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ )
)
)
for and on behalf of )
NETHOLD MEDITERRANEAN BV ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
in the presence of )
▇▇▇▇▇ ▇▇▇▇▇
16