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EXHIBIT 10.35
DATED 12TH DECEMBER 1996
(1) JUPITER PROGRAMMING CO;. LTD
(2) HOME SHOPPING NETWORK, INC.
(3) JUPITER SHOP CHANNEL CO;. LTD
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SHAREHOLDERS AGREEMENT
Relating to
Jupiter Shop Channel Co;. Ltd
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THIS AGREEMENT is made the 12th day of December 1996
BETWEEN
(1) JUPITER PROGRAMMING CO;. LTD a company incorporated in Japan whose
principal place of business is at Tokyo Opera City Tower ▇▇▇, ▇▇-▇,
▇-▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇-▇▇ ▇▇▇▇▇ ("JPC").
(2) HOME SHOPPING NETWORK INC., a company incorporated in the State of
Delaware United States of America whose principal place of business is
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("HSN").
(3) JUPITER SHOP CHANNEL CO;. LTD a company incorporated in Japan whose
principal place of business is at Tokyo Opera City Tower ▇▇▇, ▇▇-▇,
▇-▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇-▇▇ ▇▇▇▇▇ ("the
Company").
WHEREAS:
(A) JPC and HSN are from the date of this Agreement the owners of all the
issued share capital of the Company.
(B) JPC and HSN propose that the Company will carry on the Business (as
hereinafter defined).
(C) JPC and HSN are entering into this Agreement in order to record the
basis of their relationship as shareholders in the Company and to
establish the manner in which the business affairs of the Company will
be conducted.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement and the recitals hereto the following words and
expressions shall save as otherwise specifically provided have the
following meanings:
"Applicable Law": with respect to a Party, any domestic or foreign,
federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, directive,
judgement, decree or other requirement of any Governmental Authority
applicable to such Party or its properties, business or assets;
"Approved Public Company": a company or its subsidiary whose securities
are either publicly traded on the Nasdaq National Market (USA), the New
York Stock Exchange (NYSE), the American Stock Exchange (ASE), the
Tokyo Stock Exchange (TSE), the Osaka Stock Exchange (OSE), Nagoya
Stock Exchange (NSE) or the London Stock Exchange (LSE) (other than an
electronic retailing company whose principal place of business is in
the United States of America) and which is approved where necessary
pursuant to Clause 8.1(b);
"the Articles": the articles of incorporation of the Company prepared
by JPC so as to make them as simple as possible and so as only to
include minimum mandatory legal requirements in the agreed form as set
out in Schedule I (Japanese and its English
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translation) or as they may be altered from time to time in accordance with this
Agreement;
"Associate": in relation to any Shareholder, another company in which the
Shareholder owns at least ten per cent (10%) of the issued voting shares of that
company;
"the Board": the board of Directors of the Company from time to time acting by
quorate meeting or as otherwise empowered in this Agreement or in the Articles;
"the Business": the ownership management and operation of a television shopping
business in the Territory of which the principal element will be a live shopping
television channel;
"Business Plan": any total macro (annual or longer) business plan (other than
the Initial Business Plan) in a form substantially similar to the Initial
Business Plan prepared for the Company on an annual basis and reviewed prior to
the period to which it relates and then approved by the Board on an annual
basis;
"Capital Expenditure": the total amount of capital expenditure as set out in the
Initial Business Plan or any Business Plan (as the case may be);
"Closing": as defined in the Subscription Agreement;
"Control": a person shall be taken to have control of a Shareholder if it
exercises, or is able to exercise or is entitled to exercise or is entitled to
acquire direct or indirect control over the Shareholder's affairs including if
it possesses or is entitled to:
(1) a majority of the share capital or voting rights of the Shareholder; or
(2) a majority of any distributions from the Shareholder or assets on a
winding up of the Shareholder.
and "Controlled" shall be construed accordingly;
"Deed of Adherence": the deed substantially in the form of the draft set out in
Schedule III;
"Directors": the directors (full time and part time) appointed by the
Shareholders for the time being of the Company;
"Encumbrance": any mortgage, charge, pledge, option, attachment, restriction,
assignment, security interest, title retention, preferential right, equity or
trust arrangement, lien, right of set-off, hypothecation, encumbrance or any
security interest whatsoever howsoever created or arising, including any
analogous security interest under local law (other than arising solely by the
operation of law);
"Fair Value": in respect of each Share the same proportion of the fair market
value of the Company as a whole on the date of service of the Transfer Notice
(or deemed date thereof) as it bears to the whole of the issued ordinary share
capital of the Company stated as a price per Share as certified by the Referees
on the basis of a sale thereof as between a willing vendor and a willing
purchaser on the assumption that the Shares will be purchased in one lot by a
purchaser contracting on arm's length terms, who has no other interest in the
Company and (if the Company is then continuing as a going
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concern) on the assumptions that all the Shares were ordinary shares of the same
class and that the Company will continue in business as a going concern and
having regard to any goodwill attaching to the Company, but without taking
account (if that be the case) that the relevant Shares represent a minority,
majority or controlling interest in the Company;
"Foreign Shareholder": HSN and any other non-Japanese Shareholder from time to
time;
"Governmental Authority": any foreign, domestic, federal, territorial, state or
local governmental authority, quasi-governmental authority, court, government or
self regulatory organisation, commission, tribunal, organisation or any
regulatory, administrative or other agency, or any political or other
subdivision, department or branch of any of the foregoing;
"HSN Directors": the Directors nominated by HSN;
"HSN Trademarks": those of the HSN registered trademarks licensed to the Company
from tune to time by HSN;
"HSN Shares": those Shares beneficially owned by HSN including any held by a
lawful nominee on behalf of HSN;
"Initial Business Plan": the five year business plan as agreed between the
Shareholders and set out in Schedule II;
"in writing" or "written": includes any communication made by letter or
facsimile;
"JPC Directors": the Directors nominated by JPC;
"Last Business Plan": the last Business Plan approved by the Board;
"Management Agreement": the management agreement to be entered into between the
Company (1) and JPC (2) in the form agreed by the Shareholders as set out in
Schedule 1 of the Subscription Agreement;
"Operating Cash Flow": the total amount of operating cash flow as set out in the
Initial Business Plan or any Business Plan (as the case may be);
"Operating Expenses": the items of expenditure as set out in Section 3 headed
"Expenses" of the Initial Business Plan;
"Party" or "Parties": a party or the parties to this Agreement;
"person": any individual, firm, company or other incorporated or unincorporated
body;
"Prescribed Price":
(a) in relation to a voluntary Transfer of Shares in respect of which a
Transfer Notice shall have been served pursuant to Clause 10.6.1, the
price per Share offered by the Proposed Transferee (as defined in
Clause l0.6.1(a))
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(b) in relation to a Transfer of Shares in respect of which a Transfer
Notice shall be deemed to have been served pursuant to Clause 11,
such price as the Shareholders may agree per Share, or in default of
agreement within 30 days after the date on which the Transfer Notice is
deemed to be served, following a reference by any of the Shareholders,
such price per Shares as the Referees (acting as experts and not
arbitrators and whose determination shall be final and binding on the
Shareholders) shall determine to be:
(i) in the case of Clause 11.1(a) the Fair Value; and
(ii) in the case of Clause 11.1(b) the Fair Value less a
discount of 30%;
"President": the president from time to time of the Company nominated by JPC;
"Referees": One reputable outside firm of professional accountants knowledgeable
about the Business appointed by the Company acting as experts and not as
arbitrators who decision shall be final and binding;
"Representative Director": the Representative Director of the Company from time
to time appointed by JPC;
"Services and Trademark Licence Agreement": the serices agreement to be entered
into between the Company (1) and HSN (2) in the form agreed by the Shareholders
as set out in Schedule II of the Subscription Agreement;
"Shareholder": a holder of a Share or Shares being JPC and/or HSN or any other
Shareholder who may execute a Deed of Adherence;
"Shares": ordinary shares of the Company, as authorised by the Articles;
"Subscription Agreement": the subscription agreement dated 14th November 1996
and entered into between JPC and HSN;
"Subsidiary": in relation to any Shareholder, another company in which the
Shareholder owns at least fifty per cent (50%) of the issued voting shares of
that Company;
"Territory": the country of Japan and such other countries as the Board may from
time to time unanimously determine;
"Transfer": any sale, assignment, transfer or grant of lease; and
"Yen" and "Y": the lawful currency of Japan;
1.2 References in this Agreement to Clauses, sub-Clauses, paragraphs and
Schedules are references to those contained in this Agreement.
1.3 The Schedules to this Agreement are an integral part of this Agreement
and references to this Agreement include references to such Schedules.
1.4 Clause headings are for ease of reference only and shall not be taken
into account in construing this Agreement.
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2. PURPOSE OF THE COMPANY
The primary object of the Company shall be to carry on the Business.
The Business shall be conducted in the best interests of the Company
and its Shareholders collectively on sound commercial principles so as
to generate the maximum achievable value for the Shareholders.
3 SHARES IN THE COMPANY
Pursuant to the terms of the Subscription Agreement, the capital of the
Company is held at the date of this Agreement as follows:
Number of Shares Percentage
---------------- ----------
JPC 9,100 70%
HSN 3,900 30%
Total 13,000 100%
4. FINANCE
4.1 The Shareholders agree that the funding requirements for the Company
will be as determined by the Board from time to time in accordance with
any Business Plan and the Shareholders shall provide funding in
proportion to their prevailing shareholding ratios on terms and at
times such funding is required as so determined by the Board.
4.2 Notwithstanding Clause 4.1, JPC and HSN agree that in so far as they
may have the right to approve a Business Plan pursuant to Clause 8.1(a)
neither of them will withhold their consent to the funding
requirements in such Business Plan where they are for amounts (in
aggregate or otherwise) up to and including those set out in the
Initial Business Plan and JPC and HSN confirm that they are obligated
to provide funding in proportion to their prevailing shareholding
ratios for amounts (in aggregate or otherwise) up to and including
those set out in the Initial Business Plan irrespective of when funding
is required.
4.3 Without prejudice to the obligations of HSN under Clauses 4.1 and 4.2
at any time after HSN loses its right of approval pursuant to Clause
8.4 HSN shall remain obligated to provide funding (in proportion to its
prevailing shareholding ratio) for:
(a) the Operating Cash Flow in any Business Plan which provides
that the total amount of the Operating Expenses in such
Business Plan has not increased by more than ten per cent
(10%) over:
(i) the total amount of the Operating Expenses in the
Initial Business Plan (or if greater the total amount
of the Operating Expenses in the Last Business Plan
for which HSN is obliged to provide its share of
funding of Operating Cash Flow); and
(ii) after the expiration of the Initial Business Plan,
the total amount of the Operating Expenses in the
Last Business Plan for which HSN is obliged to
provide its share of funding of Operating Cash Flow;
and
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(b) the total amount of the Capital Expenditure in the Initial
Business Plan (or if greater the total amount of the Capital
Expenditure for which HSN is obliged to provide its share of
funding in the Last Business Plan) and after the expiration of
the Initial Business Plan the Capital Expenditure for the
particular year for which HSN is obliged to provide its share
of funding in the Last Business Plan.
4.4 In the event that the increase in the total amount of the Operating
Expenses pursuant to Clause 4.3 is more than ten per cent (10%), HSN
shall remain obligated to provide funding (in proportion to its
prevailing shareholding ratio) for:
(a) the Operating Cash Flow but adjusted for the difference
between the total amount of the Operating Expenses in the
Business Plan for the particular year and the total amount of
the Operating Expenses in the Initial Business Plan (or if
greater the total amount of the Operating Expenses in the Last
Business Plan for which HSN is obliged to provide its share of
funding of Operating Cash Flow) or (after the expiration of
the Initial Business Plan ) in the Last Business Plan
increased by ten per cent (10% (which based on the
shareholding ratios at the date of this Agreement can as an
example be expressed by way of the formula: "HSN funding = 30%
[0CFact - (OEact - OE110) + CAPEXlbp"); and
(b) the total amount of the Capital Expenditure in the Initial
Business Plan (or if greater the total amount of the Capital
Expenditure in the Last Business Plan) and after the
expiration of the Initial Business Plan the Capital
Expenditure for the particular year for which HSN is obliged
to provide its share of funding in the Last Business Plan;
but for additional funding above and beyond the funding that HSN is
obliged to provide as set out above HSN may elect whether to
participate or not.
4.5 Notwithstanding Clause 12 in the event HSN so elects not to participate
in the additional funding pursuant to Clause 4.4, the relevant Business
Plan shall remain in full force and effect (and HSN shall continue to
have no right of approval) and the Board and management of the Company
shall have the right to decide in their sole discretion how best to
fund such shortfall and whether this should be through internal working
capital or external finance and should the Board decide to fund either
by:
(a) requesting additional capital from the other existing
Shareholder(s) (other than HSN), then such Shareholders shall
receive Shares proportionate to the additional capital it or
they contribute (and HSN's equity percentage will be diluted
accordingly); or
(b) introducing new capital from one or more new Shareholders,
then solely in such circumstances HSN will have no right of
approval in respect of such new Shareholders pursuant to
Clause 8.1(b) and Clause 10.6.1(a) shall not apply.
5. THE BOARD, AUDITORS AND MANAGEMENT
5.1 Subject to Clause 5.2 the Board shall initially comprise six (6)
Directors. On the date of this Agreement JPC shall have the right to
nominate four (4) Directors and HSN shall have the right to nominate
two (2) Directors (subject to Clause 5.8) and to remove and replace any
such appointees and, to the extent that Japanese law and regulations
permit, such Directors appointed by JPC and HSN need not be
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Japanese nationals or resident in Japan. Such rights shall be
exercisable at a Shareholders Meeting and the Shareholders shall be
required to vote in favour of resolutions proposed by JPC or HSN
appointing or removing directors nominated by JPC and HSN respectively
so that such persons may be properly appointed or removed. Any
appointee so removed shall automatically cease to hold the office and
status to which he or she had been appointed.
5.2 The Company shall (where necessary) have three (3) statutory auditors
of which one (1) shall be full time and the other two (2) part time and
JPC shall have the right to appoint all of them.
5.3 The Board shall act by majority vote only. JPC and HSN shall use their
reasonable endeavours to procure that a quorum is present at any
meeting of the Board. The quorum necessary for the transaction of the
business of the Board shall consist of four (4) Directors of which at
least three (3) must be JPC Directors. The business to be conducted
shall be limited to that referred to in the agenda accompanying the
notice of meeting unless it is in the proper commercial interests of
the Company for any new business to be considered. In the event that a
quorum is not present on a first call of a Board Meeting as prescribed
in Clause 5.5(b), the Board Meeting shall be reconvened on the day
being three weeks thereafter (which may be shortened by the written
consent of all JPC and HSN Directors) and any matter on the agenda can
be decided by those Directors attending and Clause 8.1 shall be
construed accordingly. Notice of any such reconvened meeting shall be
given to all Directors not in attendance at the original inquorate
meeting.
5.4 One JPC Director shall be the President and the Representative Director
and shall be responsible for conducting delegating and managing the day
to day business and affairs of the Company subject to the provisions of
this Agreement and the Articles and to those other matters which are
otherwise required to be decided by the Board or general meeting of the
Company.
5.5 Save as otherwise provided in this Agreement, the Company (so far as it
is legally able) shall and JPC and HSN shall exercise their respective
powers and rights in relation to the Company so as to ensure that the
Company shall:
(a) convene and hold a formal meeting of the Board at least once
in every period of three months;
(b) procure that not less than two weeks' prior written notice of
any meeting of the Board shall be given to the Directors, that
every such notice shall be accompanied by a written agenda (in
Japanese and English) specifying the business of such meeting
(provided, however, that such fourteen day period may be
shortened with the consent of all JPC and HSN Directors);
(c) provide each Director with a management report and quarterly
financials (in Japanese and English) at least seven days prior
to every meeting of the Board;
(d) carry on and conduct the Business and its affairs on a
commercial basis, in a proper, lawful and efficient manner and
for its own benefit and in accordance with and within the
parameters prescribed by Clause 2;
(e) transact all its business on arm's length terms;
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(f) ensure that all the Business and affairs of the Company are
undertaken and transacted by the Company in accordance with
this Agreement;
(g) at all times observe and duly perform its obligations under
the Articles and this Agreement.
5.6 A synopsis of each Board meeting shall be prepared in both Japanese and
English by the Company which shall distribute them to JPC and HSN.
5.7 Immediately preceding formal meetings of the Board, there will be
informal discussions in English between those JPC Directors and HSN
Directors attending the relevant Board Meeting on all the matters which
are the subject of such Board Meeting and all Directors attending such
Board Meeting shall participate. All Board Meetings shall be conducted
in the English language.
5.8 For whatever reason other than pursuant to Clause 10.4 but without
prejudice to the obligations of the Shareholders in this Agreement,
each time a Shareholder's equity interest declines by at least fifteen
per cent (15%) of the total number of the Shares it shall procure the
resignation from the Board of one Director (per fifteen percent (15%)
of the Shares) it has nominated to the Board or where it does not own
at least fifteen percent (15%) of the total number of the Shares then
it shall not be entitled to nominate any Directors and shall procure
the resignation from the Board of all Directors it has nominated to the
Board. Such Shareholder shall procure that, in his or her resignation,
such Director shall deliver to the Company a letter acknowledging that
he or she has no claim outstanding for director's fees or compensation
for wrongful dismissal or unfair dismissal or entitlement to any
payment for redundancy or in respect of any other moneys or benefits
due to him or her from the Company arising out of such resignation
other than those arising or accrued due prior to the effective date
of such resignation. If the Company pays any amount to a Director
resulting from a claim by such Director in connection with the
resignation of such Director then the Shareholder who nominated such
Director shall reimburse such amount to the Company.
5.9 JPC shall have the right to nominate the Chief Operating Officer, the
Chief Financial Officer and any other executive officers and staff of
the Company.
6. AGREEMENT TO PERFORM
6.1 Each Shareholder undertakes with the other or others generally to use
its reasonable endeavours to promote (and not do anything detrimental
to) the Business and the Company in accordance with Clause 2.
6.2 Each Shareholder shall at all times exercise its respective powers and
votes as a shareholder of the Company to ensure that (to the extent
that the same is within such powers and voting rights) the Company
will comply with all of its obligations under this Agreement and the
Articles.
7. INFORMATION
7.1 Each Shareholder shall exercise its rights and powers so far as it is
able to procure that the Company shall:
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(a) at all times keep true, accurate and up to date books and
records of all the affairs of the Company;
(b) subject to Clause 9, at all times make available to each other
and their duly authorised representatives full and complete
access (including copying facilities) to the books, records,
accounts, documents, data, information and premises of the
Company.
7.2 Without prejudice to Clause 7.1 the Company shall at its own cost
prepare and send to JPC and HSN and each Director:
(a) within four (4) weeks from the end of each calendar month
unaudited financial statements of the Company for that month
and cumulative financial statements for the current accounting
period up to and including the end of each six calendar month
period all in a form agreed by the Board but prepared in
accordance with Japanese GAAP (generally accepted accounting
principles); and
(b) within ninety (90) days from the end of each financial year
audited accounts of the Company prepared in accordance with
Japanese GAAP and certified by the auditors of the Company.
7.3 HSN may at its own cost (reimbursing the Company where necessary) have
periodic partial or full audited accounts for the Company prepared for
its own use in accordance with US GAAP so long as it notifies the
Company of its intention to do so and ensures that HSN and its auditors
and representatives at all times cooperate with the Company and the
Company's auditors and that HSN and its employees, representatives and
auditors do not materially interfere with or interrupt the Company's
business and operations.
8. IMPORTANT MATTERS
8.1 For so long as any Shareholder owns directly or indirectly fifteen per
cent (15%) or more of the total number of the Shares a decision
relating to any of the following matters shall require the unanimous
approval (which is not to be unreasonably withheld) of such
Shareholder's Directors at the relevant Board meeting (and when
necessary the unanimous approval (which is not to be unreasonably
withheld) of such Shareholders at a Shareholders meeting) and the
Shareholders shall exercise all voting rights and other powers of
control available to them in relation to the Company and the Directors
so as to procure (insofar as they are able by the exercise of such
rights) that the Company shall not without such approval:
(a) approve any Business Plan for the Company or implement any
material amendment to or material departure from the same save
that no approval shall be necessary where any amendment,
variation or departure does not exceed in any one year an
aggregate amount equal to ten per cent (10%) of the amounts of
the Operating Expenses for the particular year as set out in
the Initial Business Plan for the period of five (5) years
from the date of this Agreement and thereafter five per cent
(5%) of the amounts of the Operating Expenses of the Company
for that particular year;
(b) approve any third party who is to become a Shareholder (either
by acquiring, issued or granted an option to acquire Shares)
other than either an
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Associate of JPC, a Subsidiary of JPC or (subject to JPC
retaining fifty one per cent (51%) of the Shares) any
broadcaster or services/systems provider;
(c) make any material change to the Articles (other than a change
relating to the share capital of the Company and related
Shares resulting from the implementation of the Initial
Business Plan and any Business Plan);
(d) other than in the ordinary course of business enter into any
contract with a Shareholder or Director which is not on arms
length and bona fide terms and which is for an annual amount
in excess of ten million yen;
(e) enter into any sub-license or contract with a third party for
the use of the HSN Trademarks;
(f) make any material change in the nature of the Business;
(g) other than in the ordinary course of business merge or
amalgamate with any third party or transfer the whole or any
material part of the undertaking, property and/or assets of
the Company (or any interest therein).
(h) other than in the ordinary course of business create, acquire
or dispose of any subsidiary or otherwise acquire or dispose
of any shares, securities or other interest in any company or
business or permit any subsidiary to issue or allot any share
or security or grant or create any option or right to acquire
any share or security except to the Company;
(i) take or permit the taking of any step to have the Company
voluntarily wound up or voluntarily to take advantage of any
provisions of winding up legislation or similar legislation;
(j) other than for the protection of the Company institute any
material litigation, arbitration or tribunal proceedings
against any person (other than HSN for whom no approval shall
be necessary).
8.2 Where appropriate, if the Directors shall not have approved any
Business Plan for the Company before the commencement of the period to
which it is to relate, the Shareholders shall procure that the Company
shall continue to carry on the business on the basis of the Last
Business Plan of the Company but with the amounts of the Operating
Expenses as set out in the Initial Business Plan for the year in
question and thereafter from the Last Business Plan increased by five
per cent (5%) until the matter is resolved pursuant to Clauses 8.3 and
8.4.
8.3 In the event that the relevant Directors or Shareholders (as the case
may be) do not approve any of the matters as required in Clause 8.1
then they will use all reasonable endeavours to reach agreement. If no
agreement is reached within ten (10) business days from the date the
matter is put to the Board or the Shareholders (as the case may be) for
approval then the President of each Shareholder (or an authorised
representative designated by such President) will use all reasonable
endeavours to try and reach agreement.
8.4 Where the matter requiring agreement is pursuant to Clause 8.1(a) then
if no agreement can be reached within a further fifteen (15) business
days after the expiry of the ten (10) business days referred to in
Clause 8.3 JPC shall forthwith be entitled
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(which HSN and any other Shareholder hereby acknowledges) to treat the
failure to reach agreement as the deemed confirmation by HSN and the
other Shareholder(s) whose President or representative does not agree
with JPC's President or representative that HSN and such other
Shareholders (and its/their Directors) will upon the expiry of such
fifteen (15) business day period no longer have a right of approval
under Clause 8.1 in respect of those matters requiring approval
pursuant to Clause 8.1(a) for the remaining term of this Agreement
and this Agreement shall be construed accordingly.
8.5 Where the matter requiring agreement is pursuant to Clause 8.1(i)
then if no agreement can be reached within a further fifteen (15)
business days after the expiry of the ten (10) business days referred
to in Clause 8.3 the Shareholder who does not agree that the Company
should be wound up ("the Acquiring Shareholder") shall be entitled (by
written notice within ten (10) business days after the expiry of such
fiurther fifteen (15) business day period) in its entire discretion to
treat the occurrence of the failure to reach agreement as the deemed
service by the other Shareholder(s) of a Transfer Notice pursuant to
Clause 10.6 the provisions of which shall accordingly apply mutatis
mutandis save that:
(i) there shall be no right to withdraw the Transfer Notice;
(ii) the Prescribed Price shall be determined in accordance with
paragraph (b)(i) of the definition of "Prescribed Price" in
Clause 1.1; and
(iii) the provisions of Clause 10.6 shall be construed on the basis
that there is no proposed third party purchaser of the Shares
other than the Acquiring Shareholder,
and if the Acquiring Shareholder is HSN and it does not serve notice as
aforesaid then it shall forthwith no longer have a right of approval
under Clause 8.1 in respect of those matters requiring approval
pursuant to Clause 8.1 (i) for the remaining term of this Agreement and
this Agreement shall be construed accordingly.
9. CONFIDENTIALITY
9.1 Each Shareholder shall at all times keep secret and confidential and
shall not use (and shall procure that its Subsidiaries, officers
employees and agents shall keep secret and confidential and shall not
use) any information which it may have or acquire in relation to the
customers, business, finances, assets or affairs of the Company or in
relation to each other and their Subsidiaries or which, in consequence
of the negotiation or operation of, or the exercise of rights under,
this Agreement it may have or acquire in relation to the customers,
business or affairs of each other or their Subsidiaries, save for any
information:
(a) which is publicly available or becomes publicly available
through no act of that Shareholder;
(b) which is disclosed to that Shareholder by a third party which
did not acquire the information under an obligation of
confidentiality;
(c) which is independently acquired by that Shareholder as the
result of work carried out by an employee to whom no
disclosure of such information had been made;
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(d) which (after full consultation with the other Shareholder) is
required to be disclosed by any law (including any order of a
court of competent jurisdiction) or the rules of any stock
exchange or governmental, revenue or other regulatory
authority, whether or not having the force of law; or
(e) which any Shareholder feels necessary to disclose in relation
to the development of the Business provided that such
Shareholder shall first obtain consent from the Board for the
proposed disclosure.
9.2 The provisions of this Clause shall survive for a period of five (5)
years after termination of this Agreement.
10. TRANSFER OF SHARES
10.1 The Shareholders agree and undertake with each other that they shall
procure that a Transfer or purported Transfer of Shares may only be
made or registered in accordance with this Agreement and the Articles.
10.2 The Shareholders shall procure that the Company does not and the
Company shall refuse to register any Transfer of any Share other than a
Transfer permitted by or made in accordance with the provisions of this
Agreement.
10.3 The Shareholders agree and undertake that no Transfer of any Shares may
be made or registered prior to _______ (save pursuant to Clauses 10.4,
10.9 and 11).
10.4 JPC may at any time transfer or sell all of its Shares to a Subsidiary
of JPC or some of its Shares to an Associate of JPC or (subject to
approval pursuant to Clause 8.1(b) where JPC is not retaining fifty one
(51) or more percent of the Shares) to any broadcaster or
services/systems provider in whatever multiples and on whatever terms
it desires.
10.5 If any Shareholder proposes to Transfer any Shares to any person ("the
Transferee") then it shall be a condition precedent to the
effectiveness of such Transfer and the registration thereof that the
parties to this Agreement, the Transferee and (if required by the
Board) a guarantor acceptable to it of the Transferee's obligations
hereunder shall execute a Deed of Adherence in the form set out in
Schedule II and deliver a legal opinion in a form, and from legal
counsel, acceptable to the other Shareholders concerning the issues
warranted and represented by them in Clauses 2 and 3 of the Deed of
Adherence.
10.6 Save pursuant to Clauses 10.4, 10.9 and 11, any Shareholder must
comply with this Clause 10.6 before selling or transferring its Shares:
10.6.1 Any Shareholder who wishes to sell or transfer its Shares (a "Vendor")
after _______ shall give notice in writing to the Company and the other
Shareholders of such wish (a "Transfer Notice") identifying:
(a) the party to whom it proposes to sell all (but not some only
of) its Shares which person must be an Approved Public Company
if it is not a Shareholder pursuant to the provisions of this
Clause 10 (the "Proposed Transferee");
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(b) the name of the Proposed Transferee's ultimate parent company
and controlling shareholder(s), if any;
(c) the Prescribed Price and other terms of the proposed sale.
The Transfer Notice shall not be effective if it does not
contain such information (unless it is a deemed Transfer
Notice pursuant to Clause 11). The Transfer Notice shall
constitute the Company as the Vendor's agent for the sale of
all, but not some only, of the Shares held by the Vendor (and
in the case of a Foreign Shareholder those shares (if any)
also registered in the name of a third party nominated by the
Foreign Shareholder pursuant to Clause 10.8 ("the Sale
Shares") to the other Shareholder(s) or any person procured or
nominated by the other Shareholder(s) (as it may in its
absolute discretion determine) at the Prescribed Price. The
Transfer Notice shall be accompanied by the Vendor's share
certificates and a duly executed transfer in blank in respect
thereof and (save as hereinafter provided) may not be
withdrawn.
10.6.2 In any case where there is a Transfer Notice (whether deemed or not)
and the determination of the Prescribed Price has been referred to the
Referees, the Company shall as soon as it receives the Referees'
certificate serve a certified copy thereof on the Shareholders. The
fees and expenses of the Referees shall be borne as to one half by the
Vendor and as to the other half by the purchasers (if any) of the Sale
Shares.
10.6.3 Within ten (10) business days of receipt of the Transfer Notice by the
Company or, where a Referees' certificate is required, within ten (10)
business days of receipt by the Company of the Referees' certificate,
the Company shall give notice in writing to the other Shareholder(s)
specifying the number of Sale Shares and the Prescribed Price therefore
and offering the Sale Shares for sale to the other Shareholder(s) at
the Prescribed Price. Such notice shall be accompanied by a copy of the
Transfer Notice and, if applicable, the Referees' certificate and shall
require each other Shareholder to state in writing within thirty (30)
days of the date of the notice:
(a) that it is willing to purchase a stated amount of the Sale
Shares at the Prescribed Price; or
(b) (except in the case of a deemed Transfer Notice pursuant to
Clause 11) that it consents to the sale of all of Sale Shares
within ten (10) days thereof to the Proposed Transferee at the
Prescribed Price.
In the event that no notice is received within the said period of
thirty (30) days or (except in the case of a deemed Transfer Notice
pursuant to Clause 11) notice(s) have been given pursuant to Clause
10.6.3(a) but not collectively in respect of all the Sale Shares then
such other Shareholder(s) shall be deemed to have served a notice
pursuant to Clause 10.6.3(b) at the end of such thirty (30) day period.
10.6.4 In the event that a notice is served pursuant to Clause 10.6.3(a) in
respect of all of the Sale Shares the Company shall, by notice,
allocate the Sale Shares to (or amongst) the other Shareholder(s) or
its (their) nominees in accordance with its willingness as stated in
the notice given pursuant to that clause and (if more than one) pro
rata to the number of Shares for the time being held by it (but so that
no such other Shareholder shall be obliged to purchase more than the
Sale Shares so notified by it) as aforesaid). Such Shareholder(s) as
aforesaid shall within fifteen (15) days thereafter complete the
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purchase from the Vendor of the Sale Shares so allocated to them at the
Prescribed Price. The Vendor shall be bound to transfer the Sale Shares
comprised in the notice to the other Shareholder(s) or its (their)
nominees at the Prescribed Price, and if it makes default in so doing
the Company may receive the purchase money and the relevant Directors
appointed to the Board by the other Shareholder(s) may authorise some
person to execute a transfer of the Sale Shares in accordance with the
aforesaid allocation in favour of the other Shareholder(s) or its
(their) nominees as aforesaid ("the Shareholder Purchaser") and the
Company shall hold the purchase money in trust for the Vendor. The
receipt by the Company of the purchase money shall be a good discharge
to the Shareholder Purchaser and after its name has been entered in the
Company's Register of Members in exercise of the aforesaid power, the
validity of the proceedings shall not be questioned by any person. If
such purchase is not completed (for any reason other than the Vendor's
default) within such period of fifteen (15) days, then the
certificates and duly completed transfer in respect of the Sale Shares
shall be returned to the Vendor and consent shall be deemed to have
been given pursuant to Clause 10.6.3(b) and the provisions of Clause
10.6.3 shall apply.
10.6.5 In the event that a notice is given or deemed to be given by the other
Shareholders pursuant to Clause 10.6.3(b) the Vendor shall be at
liberty to sell all of the Sale Shares at any time within fifteen (15)
days after the date of such notice (or, if no actual notice is given
pursuant to Clause 10.6.3, the expiry of the period of thirty (30) days
provided for under Clause 10.6.3) to the Proposed Transferee at the
Prescribed Price and otherwise upon no more favourable terms than those
offered to the other Shareholder(s) and as stated in the Transfer
Notice PROVIDED THAT: -
(a) if prior to completion of the said sale an event has occurred
in relation to the Proposed Transferee which, if the Proposed
Transferee had been a member of the Company at the date of the
Transfer Notice, would have meant that a deemed Transfer
Notice arose under Clause 11 then the identity of the
Proposed Transferee shall need to be reapproved and failing
such re-approval the Transfer Notice shall be deemed to have
been withdrawn by the Vendor and such sale shall not take
place. At completion of any such sale the Proposed Transferee
shall deliver to the other Shareholder an undertaking that no
such event has occurred; and
(b) if any Shareholder (other than JPC) has with its notice
Pursuant to Clause 10.6.3(b) stated that it wishes the
Proposed Transferee to also purchase all (but not part only)
of its Shares at the Prescribed Price then the Vendor shall
procure that the Proposed Transferee shall also purchase such
Shares at the Prescribed Price in the event that the Vendor
does actually sell its Shares to the Proposed Transferee.
10.6.6 The Board shall refuse to register any Transfer of any Share other than
a Transfer permitted by or under and made in accordance with the
preceding provisions of Clause 8.5, 10, or Clause 11, which Transfer
the Board shall register.
10.6.7 All Shares Transferred pursuant to Clauses 8.5 and 10.6 shall be
transferred as beneficial owner and free from all Encumbrances together
with all rights, benefits and advantages attached thereto as at the
date of the Transfer Notice or deemed Transfer Notice except the right
to any dividend declared but not paid prior to the date of the relevant
Transfer Notice.
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10.6.8 Immediately upon completion of the Transfer of any Shares by any
Shareholder pursuant to the provisions of Clauses 8.5 and 10.6 the
Vendor shall procure the resignation of any Director appointed to the
Board by the Vendor without any claim or compensation for loss of
office of any kind whatsoever.
10.6.9 The Shareholders shall together procure that at all times during the
continuation of this Agreement the Board acts in accordance with the
provisions of Clause 10.
10.7 The Shareholders shall procure that the Company maintains an executed
copy of this Agreement on file and that the Company shall not transfer
any certificates representing Shares or issue any certificates in lieu
thereof unless all the conditions therein have been complied with and a
purported transfer not in accordance with the terms hereof shall be
null and void.
10.8 Notwithstanding that a Foreign Shareholder may at any time be prevented
from increasing its shareholding in the Company by reason of any
Applicable Law, decree, regulation, law directive or other requirement
of the Japanese Governmental Authorities any Shareholder proposing to
transfer any Shares shall nevertheless be obliged to serve a Transfer
Notice on the Foreign Shareholder and the Foreign Shareholder shall
(notwithstanding any other provision of this Agreement or the Articles)
be entitled within thirty (30) business days of the notice served by
the Company pursuant to Clause 10.6.3 to nominate in writing any third
party approved by the other Shareholder(s) (such approval not to be
unreasonably withheld or delayed) to acquire the relevant Shares which
would otherwise have been offered to the Foreign Shareholder (provided
that such acquisition by such third party does not itself infringe any
Applicable Law, decree, regulation, law directive or other requirement
of the Japanese authorities and such third party executes a Deed of
Adherence) and such third party for all purposes shall be the
transferee of such Shares on completion of the above procedures.
10.9 HSN may transfer all (but not part) of its Shares to a wholly owned
subsidiary of HSN subject to obtaining the approval of JPC (such
approval not to be unreasonably withheld) and to HSN guaranteeing the
obligations of that subsidiary on terms satisfactory to JPC.
11. DEEMED TRANSFER OF SHARES
11.1 If any Shareholder ("the Defaulter");
(a) goes into receivership, liquidation or administration or
passes a resolution putting it into voluntary liquidation
(other than for the purposes of amalgamation or
reconstruction) or some analogous procedure; or
(b) shall commit a material breach of any provision of this
Agreement to which it is a party or the Articles and shall
have failed to remedy such breach, if capable of remedy,
within sixty (60) days after the date of a notice from any
other Shareholder specifying the nature of the breach and
requiring it to be remedied; or
(c) shall become Controlled by another person or persons acting in
concert (other than by such person or persons who are
shareholders (or who are shortly to become shareholders
pursuant to an offer made prior to the date hereof) in the
relevant Shareholder at the date of this Agreement);
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then in any such event (without prejudicing or in any way
limiting their other rights) the other Shareholder(s) ("the
Non-Defaulter(s)") shall be entitled (by notice) in its entire
discretion to treat the occurrence of any such event as the
deemed service by the Defaulter of a Transfer Notice pursuant
to Clause 10.6 the provisions of which shall accordingly apply
mutatis mutandis save that;
(i) there shall be no right to withdraw the Transfer
Notice; and
(ii) the Prescribed Price shall:
(1) in the events referred to in Clause 11.1(a)
and (c) be determined in accordance with
paragraph (b)(i) of the definition of
"Prescribed Price" in Clause 1.1; and
(2) in the events referred to in Clause 11.1(b)
be determined in accordance with paragraph
(b)(ii) of the definition of "Prescribed
Price" in Clause 1.1.
To be effective, such notice shall be given to the Defaulter within
thirty (30) days of the Non-Defaulter (or the last of them if more than
one) becoming aware of the occurrence of such event.
11.2 The provisions of Clauses 10.6.7 and 10.6.8 shall apply to any Transfer
pursuant to the provisions of this Clause.
11.3 Any notice given by the Non-Defaulter(s) pursuant to Clause 11.1
shall have the effect that (notwithstanding any provision of the
Articles) until further notice from the Non-Defaulter(s):
(a) any transfer by a Defaulter of its Shares ("the relevant
Shares") (other than to or at the direction of the
Non-Defaulter(s)) shall be void;
(b) no voting rights shall be exercisable by the Defaulter in
respect of its Shares;
(c) no further Shares shall be issued or need be offered to the
Defaulter;
(d) except in a liquidation, no interest, dividend or other
payment shall be made of any sums due from the Company on the
Defaulter's Shares (whether in respect of capital or
otherwise) to the Defaulter;
(e) all the Defaulter's rights under this Agreement shall be
suspended; and
(f) the Defaulter or its nominee (as appropriate) shall not be
required to be present to make a quorum for general meetings
of the Company or meetings of the Board.
The Non-Defaulter(s) may by notice remove or relax such restriction in
whole or in any particular case at any time.
12. NEW SHARES
If the Company at any time issues new Shares, the Shareholders shall
(subject to Clause 4.5) subscribe for such new shares in proportion to
their respective
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shareholding ratios in the Company at that time. No new shares may be
issued to any third party without the approval of the Board.
13. TERINATION
This Agreement shall continue in full force and effect from the date
thereof until:
(a) all the Shareholders agree in writing to its termination; or
(b) all of the Shares become beneficially owned by one Shareholder; or
(c) the Company goes into liquidation whether voluntary or compulsory
(other than for the purpose of an amalgamation or reconstruction
approved by all the Shareholders) or is wound up;
whereupon this Agreement (with the exception of Clauses 9, 16 and 29)
shall automatically terminate with neither Party having a claim against
the other save for any breach by a Party prior to the date of
termination.
14. REPRESENTATIONS AND WARRANTIES
14.1 Each of the Parties hereto represents warrants and undertakes to each
other that:
(a) it is a company duly incorporated and validly existing in all
respects under the laws of the jurisdiction or its
incorporation with full power and authority to own its assets
and to carry on its business as it is now being conducted and
no action has been taken or threatened (whether by it or any
third party) for or with a view to its or their liquidation,
receivership or analogous process;
(b) so far as it is aware having made reasonable enquiry no
litigation or administrative or arbitration proceedings before
or of any court, judicial, administrative or governmental
authority, arbitrator(s) or other body is taking place,
pending or threatened against it or against any or their
respective assets which might have a material adverse effect
on its business, assets, condition or operations taken as a
whole, or might adversely affect its ability duly and
punctually to perform and observe all its obligations
hereunder.
15. REGULATORY
15.1 In connection with the Company, JPC shall be primarily responsible for
dealing with all Japanese Governmental Authorities and regulatory
issues and seeking to obtain all necessary Japanese approvals which may
at any time be required for the Company (but not HSN) for whatever
purpose, with HSN providing such support and assistance as may be
necessary.
15.2 In so far as HSN may itself require any Japanese Governmental
Authority approvals for investing in the Company then JPC will use
reasonable endeavours to assist HSN subject to HSN paying JPC for all
costs it may incur in providing such assistance.
16. COMPETITION
16.1 The Shareholders agree that the Company will be the sole vehicle
through which all Business opportunities are conducted in the Territory
and that they will not invest
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manage or otherwise participate in any Business opportunity which may
compete with the Business without first offering such opportunity to so
invest manage or otherwise participate to the Company and if the
Company (by way of a simple majority Board decision) should decline
only then will the particular Shareholder be free to invest manage or
otherwise participate in such Business.
16.2 It is the intention of the Parties where and when practical and
appropriate to discuss and offer new Business opportunities in Asia to
the Company.
16.3 The provisions of this Clause 16 shall continue to apply to any
Shareholder for a period of one year from the date it ceases to be a
Shareholder.
17. MANAGEMENT/SERVICES AGREEMENT
The Parties agree that:
(i) JPC will support the management of the Company by providing
the services pursuant to the terms of the Management
Agreement; and
(ii) HSN will provide services to the Company pursuant to the terms
of the Services and Trademark Licence Agreement.
18. NO ASSIGNMENT
No Party may assign its rights under this Agreement.
19. WAIVERS, REMEDIES CUMULATIVE, AMENDMENTS, ETC.
19.1 No failure or delay by any of the parties hereto in exercising any
right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise by any of the
parties hereto of any right, power or privilege preclude any further
exercise thereof or the exercise of any other right, power or
privilege.
19.2 The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.
19.3 No provision of this Agreement may be amended, modified, waived,
discharged or terminated, otherwise than by the express written
agreement of the parties hereto nor may any breach of any provision of
this Agreement be waived or discharged except with the express written
consent of the parties not in breach.
20. INVALIDITY
Should any provision of this Agreement be or become ineffective for
reasons beyond the control of the parties, the parties shall use
reasonable efforts to agree upon a new provision which shall as nearly
as possible have the same commercial effect as the ineffective
provision.
21. COSTS
Each of the parties hereto shall pay its own costs, charges and
expenses connected with the preparation and implementation of this
Agreement and the transactions contemplated by it.
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22. CONFLICT WITH ARTICLES ETC.
To the extent permitted by Applicable Law, in the event of any conflict
between the provisions of this Agreement and the Articles, the
provisions of this Agreement shall at all times prevail and 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 as
may be necessary to eradicate such conflict or any conflict between
this Agreement and the Articles.
23. NOTICES
Any notice or other communication given or made under this Agreement
shall be in writing in English and, without prejudice to the validity
of any other method of service, may be delivered via facsimile or
personally or by courier addressed as follows:
(a) If to JPC:
Jupiter Programming Co., Ltd
Tokyo Opera City Tower 35F
20-2, 3-chome
Nishi-Shinjuku
▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇
Attention: President
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
(b) If to HSN:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address or facsimile number as the relevant addressee
may hereafter by notice hereunder substitute.
24. ENGLISH LANGUAGE
Where this or any other English language agreement between the parties
or referred to herein is translated into Japanese for the convenience
of the parties or some of them the English language version
hereof/thereof shall for all purposes be deemed to be the definitive
and binding version thereof. Conversely where the Articles are
translated into English for such convenience, the Japanese language
version shall for all purposes be deemed to be the definitive and
binding version thereof.
25. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of Japan. As required by the Applicable Law of Japan, this
Agreement will be filed with the Japanese Fair Trade Commission.
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26. DISPUTES
26.1 Other than as provided in Clauses 8.3, 8.4 and 8.5, in the event of a
disagreement among the Parties, including a disagreement regarding this
Agreement, or any breach thereof, each Party will use its best efforts
to resolve such disagreement amicably and where applicable the Party in
breach shall promptly take all reasonable steps to remedy such breach.
If, at the end of 15 days from the occurrence of such disagreement or
breach, no resolution has been reached the President of each Party or
an authorised person designated by the President of each party will
meet to resolve the matter. If they, too, are unable to reach a
mutually agreeable resolution within 30 days of the matter being
referred to them, the matter will be arbitrated in accordance with
Clause 26.2
26.2 Any and all disputes with respect to which such authorised persons
failed to reach a mutually agreeable resolution pursuant to Clause 26.1
shall be finally settled by arbitration conducted in London under
UNCITRAL Arbitration Rules by three (3) arbitrators (none of whom shall
be Japanese or US citizens) in the English language. The award shall be
final and binding upon the Parties.
27. ENTIRE AGREEMENT
This Agreement (including the Articles which are incorporated herein by
reference) and the Subscription Agreement replaces, supersedes and
cancels all other previous and contemporaneous arrangements,
understandings, representations or agreements between the Parties
either oral or written with respect to the subject matter of this
Agreement and the Subscription Agreement and expresses and constitutes
the entire agreement between the Parties with reference to the terms
and conditions of the constitution and operation of the management of
the Business and affairs of the Company.
28. NO PARTNERSEHIP/AGENCY
Nothing herein contained shall be construed or deemed to constitute a
partnership or joint venture between the Parties and save as expressly
herein provided no Party shall hold itself out as the agent of the
other.
29. SURVIVAL OF PROVISIONS
The expiry or earlier termination of this Agreement shall not operate
to terminate any provisions which are expressed to continue in force
thereafter.
30. EXECUTION
This Agreement may be executed in counterparts (which may be exchanged
by facsimile transmissions) each of which shall be an original and
which together shall constitute one document. Without prejudice to the
foregoing, if this Agreement shall initially be exchanged by facsimile
transmissions as aforesaid the Parties shall as soon as reasonably
possible thereafter arrange for the signature and exchange of original
signed copies of this Agreement.
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