1
EXHIBIT 10.38
JOINT VENTURE AGREEMENT
BETWEEN
1. Quelle ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ & Co. with its seat in Furth, Germany (hereinafter
referred to as "Quelle") and
2. Home Shopping Network Inc. with its seat in St. Petersburg, Florida,
United States of America (hereinafter referred to as "HSN Inc."),
3. Home Shopping Network GmbH ▇.▇▇. with its seat in Frankfurt am Main,
Germany (hereinafter referred to as "HSN GmbH") (together with HSN Inc. jointly
referred to as "HSN").
4. ▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as "▇▇▇▇▇")
5. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (hereinafter referred to as "▇▇▇▇▇▇")
Quelle, HSN, ▇▇▇▇▇ and ▇▇▇▇▇▇ are occasionally referred to as "Shareholders" or
"Parties".
PREAMBLE
A. In April, 1995, Pro7 Television GmbH and Quelle have agreed to cooperate
in the area of teleshopping in the form of the joint venture company H.O.T. Home
Order Television GmbH & Co. KG, Unterfohring -- hereinafter referred to as
"HOT-KG" -- and its general partner H.O.T. Home Order Television Verwaltungs
GmbH, Unterfohring -- hereafter referred to as "HOT-GmbH". HOT-KG and HOT-GmbH
are occasionally also referred to hereafter as "HOT Companies".
In December, 1995, Pro 7 Television GmbH was released from certain duties
under the said cooperation agreement. At that time, Pro 7 Television GmbH
divided its share in HOT-GmbH into two shares and transferred them to ▇▇▇▇▇ and
▇▇▇▇▇▇. Also, Pro 7 Television GmbH transferred its interests in HOT-KG to ▇▇▇▇▇
and ▇▇▇▇▇▇, who joined into the joint venture cooperation agreement described
above.
Now, HSN, Quelle, ▇▇▇▇▇ and ▇▇▇▇▇▇ have agreed that HSN will join the HOT
Companies pursuant to the provisions of the Purchase and Sale Agreement of the
same day and the Articles of Incorporation attached as Exhibit 5.2.1
thereto -- hereafter referred to as Articles of Incorporation" -- for HOT-GmbH
and the Partnership Agreement for HOT-KG attached as Exhibit 5.1.1
thereto -- hereafter referred to as Partnership Agreement" -- as well as the
Rules of Procedure for the General Management of HOT-GmbH attached as Exhibit
5.2.2 thereto -- hereafter referred to as Rules of Procedure for the General
Management" -- and the Rules of Procedure for the Advisory Board of HOT-GmbH
attached as Exhibit 5.2.3 thereto -hereafter referred to as Rules of Procedure
for the Advisory Board" -- as of September 1,1996 hereafter referred to as the
"Relevant Date" -- or as soon as practicable and that HSN will join into the
joint venture pursuant to the provisions of this Agreement.
B. HOT-KG produces teleshopping programs and broadcasts such programs via
cable, satellite and terrestrially in Germany and other German speaking
territories.
C. As there have not been any experiences in Germany with teleshopping as a
new mode of distribution at the time of establishing the Joint Venture, HOT-KG
was entrusted with the development of specific teleshopping formats and systems.
In this respect the HOT-KG also took over the responsibility for selection of
products to be marketed by way of teleshopping.
D. However, in order to enable HOT-KG to set up the teleshopping business
and to operate it successfully, the shareholders are supporting and will support
the HOT-Companies in the areas of their respective specific expertise as
provided hereunder.
E. It is the purpose of this Agreement to govern the relationships among
the shareholders of the venture on the one hand, and the relationship of the
shareholders with the HOT-companies on the other hand in more
2
detail. This Agreement shall control in the event that there is a conflict
between this Agreement and the other corporate agreements among the parties or
in the event that the other corporate agreements are silent on an issue.
Therefore it is agreed as follows:
PART 1
CONCEPT OF THE PROJECT
SEC. 1 -- PROJECT "TELESHOPPING"
(1) The shareholders have agreed to distribute goods and services by way of
teleshopping through the HOT Companies.
Teleshopping for the purposes of this Agreement is any form of broadcast
which makes direct offers to the public for the purposes of sale, purchase or
renting or leasing of goods or for the purposes of supplying services in
consideration of money.
(2) HOT-KG currently operates, maintains and utilizes the systems required
for the distribution of goods by way of teleshopping. HOT-KG is and will be
responsible in particular for the choice of goods to be marketed by way of
teleshopping.
(3) Furthermore, HOT-KG will rely on the support of the shareholders
pursuant to service agreements insofar as necessary, economically viable and
reasonable. All such related party agreements shall be subject to approval of
the Advisory Board.
(4) The Parties are aware that HSN Inc. is subject to certain restraints of
competition relating to the infomercial business.
2
3
PART 2
IMPLEMENTATION OF THE PROJECT
SEC. 2 -- ADVISORY BOARD
(1) Currently the Advisory Board consists of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Chairman), ▇▇. ▇▇▇▇▇▇ Moissl, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (Vice Chairman) and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(2) With effect as of the execution of the Purchase and Sale Agreement, the
number of the members of the Advisory Board will be extended to six. HSN GmbH
will appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as members of the Advisory
Board. With effect from the next Ordinary Shareholders' meeting pursuant to
sec. 11 subsection (2) of the Articles of Incorporation of HOT-GmbH a
representative of HSN GmbH will be chosen Chairman of the Advisory Board
pursuant to sec. 10 Subsection (1) of the Articles of Incorporation of HOT-GmbH.
With effect from the point of time set forth in the sentence before, a
representative of Quelle will be chosen Vice Chairman of the Advisory Board.
Otherwise there are no changes to the alternating of the chairmanship among the
representatives of the Shareholders on the Advisory Board of HOT-GmbH as
provided in the Articles of Incorporation.
SEC. 3 -- BUDGET AND INVESTMENT PLAN
(1) The Profit Plan attached as EXHIBIT 8.1.18 to the Purchase and Sale
Agreement (hereinafter: "Profit Plan"), covers the period until December 31,
2000. The Parties undertake to provide HOT-KG with the means necessary for the
implementation of the Profit Plan, subject to the reviews provided for in
sec. 6.
(2) If due to a change of the underlying conditions, facts and
circumstances, the Profit Plan referred to in subsection (1) needs to be
changed, the parties undertake to amend it. Each Party hereof has the right to
request such a change within 3 months of the date of the request.
If the Shareholders do not agree on a change to the Profit Plan as
described above within a further period of 21 days after such a request has been
submitted to the shareholders by the General Manager of HOT-KG the shareholders
will present the matter in dispute to the accountant of HOT-KG who shall act as
mediator. If the mediation fails for any reason whatsoever within a further
period of 21 days, the matter in dispute will be presented to an accountant, who
is not the accountant of HOT-KG -- hereinafter referred to as "Chartered
Accountant" -- who shall render an arbitration decision observing the
limitations set forth under sec. 3 (4) hereunder within a period of 21 days
after the issue is presented to him. If the Parties cannot agree on a Chartered
Accountant, the Chamber of Chartered Accountants in Dusseldorf shall nominate a
Chartered Accountant who shall serve as the arbitrator. The Profit Plan, as
amended by the Chartered Accountant, shall become binding on the Parties hereof.
(3) For the avoidance of doubt, the shareholders are mutually obliged to
provide HOT-KG with the means necessary to continue its business operation in
the ratio respective to their shares and Partnership Interests after Execution
of the Purchase and Sale Agreement if the parameters on which the Investment
Plan is based -- whether in the version attached hereto as EXHIBIT 8.1.18 or in
a version adapted thereafter pursuant to subsection (2) above -- are changed
(e.g., less demand, less turnover of goods or increased costs/expenses). Subject
to any other agreement between the Parties, the required liquidity has to be
provided by payment of money into HOT-KG as a further contribution of the
limited partners. Such duties exist for each shareholder in relation to its
interests and shares in the HOT-Companies in such scope as means are required by
HOT-KG in order to remain solvent after consideration of other means to finance
the business. The shareholders will pass a resolution on such request by the
General Management of HOT-KG after taking into account all facts and
circumstances, including tax considerations, of the HOT-Companies and their
shareholders.
(4) For purposes of the agreed upon Profit Plan the duty of the parties
shall be DM 130 million in aggregate. An amount of DM 68.717.600,-- out of the
amount of DM 130 million has already been provided until November 29, 1996. The
outstanding amount of DM 61.282.400,-- shall be provided by the shareholders
according to their interests in the HOT-Companies except for revisions due to
payments made after
3
4
November 29, 1996, and except for payments pursuant to sec. 4.3 of the Purchase
and Sale Agreement relating to the Balance Sheet Adjustment Payment. The request
to provide such liquidity cannot be made by HOT-KG itself but only by the other
parties to this Joint Venture Agreement. The amount set out above may be amended
upon mutual agreement of the Parties hereto.
(5) The Parties may consider the establishment of a second shop at home
channel, aimed primarily at a market outside German-speaking territories. In
such event the HOT Advisory Board would vote on the creation of the second
channel. If the vote is approved, the second channel would be developed within
HOT-KG, in which case the above DM 130 million cap would have to be reasonably
raised. If the vote fails, any partners who elect to proceed with a second
channel may form a separate venture to do so which shall not be governed by the
provisions set forth hereunder. In such case the Parties are in agreement, that
all shareholders in HOT-KG will be invited to participate in the second venture
and that additional parties may be brought into the new venture. However, no
third party may be brought in if it competes with a shareholder in a country in
which the shareholder is otherwise engaged in significant business. For purposes
of this subsection a competitor of Quelle shall mean any electronic retailer. As
to the definition of HSN's and ▇▇▇▇▇'▇ and ▇▇▇▇▇▇'▇ competitors, reference is
made to sec. 7 (2) below.
SEC. 4 -- SERVICE AGREEMENTS
(1) In so far as necessary, commercially viable and reasonable, HSN and
HOT-KG on the one hand and the other Parties hereto, Quelle and HOT-KG, on the
other hand will enter into service contracts pursuant to the general terms
provided in EXHIBIT (5.3) 4.1 for the services defined in following Subsection
(2).
(2) HSN Inc. will support HOT-KG to the best of its ability in the
performance of the following functions itself or through its affiliates and
subsidiaries:
- Access to, and purchase of, HSN's products and services
- Access to related background information and selling materials on each
item for use by show hosts
- Access to HSN marketing and sales know how: consumer research, on-air
presentation, sales histories of individual items and product
categories, etc.
- Consulting on HSN systems: computer, etc.
- On the job training and consultation for HOT key employees
- Various licenses and trademarks owned by HSN
- Facilitate cooperation with HSN Direct, if mutually valuable.
Quelle, ▇▇▇▇▇ and ▇▇▇▇▇▇ are supporting and will support HOT-KG to the best
of their ability in the performance of the following functions themselves or
through their affiliates and subsidiaries:
- German management (i.e., operating the business in its entirety)
- Equipment
- Facilities and related operational requirements
- Marketplace know how
- Operating licenses (including transponder)
- Inbound and outbound telemarketing (Quelle)
- Governmental compliance and lobbying (federal and local)
- Distribution (cable, satellite) in Germany and other German speaking
markets
- Order fulfillment (processing, accounting, physical distribution and
supply of products) (Quelle)
- Credit card processing (Quelle)
- Customer service (Quelle)
- Upsell marketing
- Check processing (Quelle)
- Ongoing accounting and financial services
- Legal Compliance
- HOT Catalogue/Program Guide
- Access to and purchase of Quelle's products and services (Quelle)
- MIS reports (Quelle)
4
5
The above list is neither conclusive nor exclusive.
SEC. 5 -- "WINDOW"
(1) Each party is entitled, possibly together with any third party, subject
to its own choice to use no more than 1 hour of broadcasting time per day on the
teleshopping channel for teleshopping activities in consideration of a fee to be
agreed with HOT-KG. Such fee shall cover HOT's cost and a reasonable profit
margin. sec. 8 of this Agreement shall only apply to such teleshopping
activities to the extent that one or more of the other Parties must not allow
such third party to be a mail-order company a broadcasting company, or a
electronic retailer.
(2) In the set-up of the programs, the respective Party must take into
account the image of HOT-KG.
(3) Further details are subject to a separate agreement. This agreement
shall be subject to the approval of Advisory Board of HOT-KG.
SEC. 6 -- REVIEW OF COOPERATION AND NOTICE OF TERMINATION
(1) The parties will jointly review the status of the project in regular
intervals of no more than 6 months.
(2) Each party has the right to terminate this Agreement and the
Participation in the HOT-Companies by giving two months' written notice if
a) the broadcasting has been prevented by administrative action and
legal measures against such administrative action have not been successful
in summary proceedings in a second court instance; or
b) in 1997 the turnover profits (gross sales) are below DM 75 million;
or
c) in 1997 the annual aggregate loss exceeds DM 51 million.
This right to give notice of termination is to be exercised in writing
only within the period from January 1, 1998 until April 30, 1998. Except
as provided below, if such notice is duly given, the Joint Venture
Agreement shall be terminated with effect at the expiration of the above
notice period except for the parties' claims against each other which
have already come into existence, in particular the obligation to
provide the Company with the necessary liquidity pursuant to sec. 3 of
this Agreement. The shareholder giving such notice is obliged to offer
to the other shareholders pursuant to the provisions of the relevant
Articles of Incorporation or Partnership Agreement the
quotas/partnership interests in the appropriate form for purchase. In
such case the compensation shall be determined pursuant to sec. 17 of
the Partnership Agreement of HOT-KG and sec. 19 of the Articles of
Incorporation of HOT-GmbH. If such offer has not been accepted within
one month after receipt of the written notice in the appropriate form,
the shareholders shall undertake to wind up the companies.
(3) The exercise of rights arising from sec. 18 of the Articles of
Incorporation of HOT-GmbH and sec. 16 of the Partnership Agreement of HOT-KG
remains otherwise unaffected.
SEC. 7 -- DISPOSAL OF INTERESTS IN THE HOT-COMPANIES
(1) Subject to sec. 6 of this Agreement the parties undertake not to
dispose of their interests in HOT-GmbH and HOT-KG prior to September 1, 1999.
This applies also to the transfer to affiliated undertakings in terms of sec. ▇▇
▇▇▇▇ (▇▇▇▇▇▇ Stock Corporation Act).
(2) The transfer of a share or a part of a share of HOT-GmbH or a
Partnership Interest of HOT-KG requires the written consent of the other
shareholders or partners, as applicable, pursuant to sec. 5 Subsection (1) of
the Articles of Incorporation of HOT GmbH and sec. 14 Subsection (1) of the
Partnership Agreement of HOT KG in order to be valid. The consent of a party
shall, however, not be unreasonably withheld. Such
5
6
consent may, in particular, be withheld if the interests and shares are to be
transferred to a competitor of the remaining Shareholders. For purposes of this
Subsection
- Competitor of Quelle shall mean any mail order company,
- Competitor of ▇▇▇▇▇ and ▇▇▇▇▇▇ shall mean any broadcasting company,
- Competitor of HSN shall mean any electronic retailer,
and affiliated entities to the competitors within the meaning of sec. 15
AktG.
Each Shareholder shall grant the written consent and waive any preemption
rights to sec. 5 subsections (1) through (3) of the Articles of Incorporation of
HOT GmbH and sec. 14 of the Partnership Agreement of HOT KG if it
a) is transferred to an entity which is affiliated with the
transferring shareholder within the meaning of sec. 15 Aktiengesetz and
b) such entity does not directly or indirectly compete with the HOT-KG
and
c) it is ensured in an appropriate way that in case of the termination
of the affiliation the share and Partnership Interest shall be transferred
back to the disposing shareholder and
d) the transferring shareholders transfers all of its shares or its
Partnership Interests and
e) the acceding party shall join into this Agreement.
Any such transfer does not affect this Agreement nor any of the obligations
of the respective Party hereunder.
PART 3
MISCELLANEOUS
SEC. 8 -- TERMINATION OF JOINT VENTURE AGREEMENT
In general, each Party has the right to terminate this Agreement by giving
six months' written notice before the end of a calendar year. Such notice may
not be effective prior to the earlier of December 31, 2000 or at the return on
investment, (repayment of any capital contributions of all Parties to HOT-KG
plus interest at a rate of 6% p.a.). This termination shall not affect a
terminating party's interest in any of the HOT Companies nor any agreement
pursuant to sec. 4 of this Agreement. Upon the effective date of termination,
the party terminating shall no longer be party of this Agreement with the
exception of sec. 7 and sec. 9 hereunder which shall survive in relation the
terminating party. The Agreement shall continue in full force and effect among
the remaining parties except for the obligations set forth under sec. 3 (4)
hereunder.
SEC. 9 -- COMPETITION CLAUSE
(1) During the time that a Party holds shares in HOT-GmbH or partnership
interests in HOT-KG and for one year thereafter, that party will neither
directly nor indirectly participate as an owner, partner, shareholder,
consultant, employee, affiliate, officer or director in other teleshopping
activities in terms of sec. 1 subsection (1) of this Agreement targeted at
German Speaking Territories or in the German Language other than those of HOT-KG
or support such teleshopping activities in any other way.
(2) DRTV spots and infomercials broadcast as a part of any other TV-program
which does not have teleshopping as its focus are not affected by this sec. 9.
Not affected either is third party fulfillment unless it is for competitors of
HOT and its affiliated entities within the meaning of sec. 15 AktG which are
engaged in the electronic retailing business and of which the parent company is
based in the Americas.
6
7
SEC. 10 -- GENERAL PROVISIONS
(1) If any provision of this Agreement is invalid or becomes invalid, the
validity of the rest of the Agreement shall not be affected. The parties
mutually undertake to replace the provision which is or became invalid by a
provision which equals the commercial purpose of the provision to be replaced as
far as possible. The same applies if there are gaps in the agreement.
(2) Changes and amendments of this agreement need to be in writing in order
to be valid unless a notarized form is required. The same applies to the change
of this clause. Verbal collateral agreements have not been concluded.
(3) Exclusive place of jurisdiction for disputes arising from this
Agreement is Frankfurt am Main unless prohibited by law.
(4) This Agreement is exclusively subject to German law (unless
prohibited).
(5) This Agreement is executed in German and English. Only the German
version is notarized and shall be binding.
(End of text)
7