EXHIBIT 10.30
JOINT VENTURE AGREEMENT
by and between
PACIFIC PAY VIDEO, LIMITED
and
NAG YONG LEE
TABLE OF CONTENTS
PAGE
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1. Formation of the JVC.................................................... 1
2. Business Purpose........................................................ 2
3. Article of Incorporation of the JVC..................................... 2
4. Capital and Shares...................................................... 2
5. Conditions Precedent to Subscription.................................... 4
6. Preemptive Rights....................................................... 4
7. Transfer of Shares...................................................... 4
8. Shareholders............................................................ 5
9. Board of Directors...................................................... 5
10. Officers................................................................ 6
11. Statutory Auditor....................................................... 6
12. Financial Activity and Accounting....................................... 6
13. Related Agreements...................................................... 7
14. Non-competition......................................................... 8
15. Term.................................................................... 8
16. Termination............................................................. 8
17. Consequences of Termination............................................. 9
18. Miscellaneous........................................................... 10
18.1 Entire Agreement................................................. 10
18.2 Modifications.................................................... 10
18.3 Waiver........................................................... 11
18.4 Severability..................................................... 11
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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18.5 Governing Law.............................................. 11
18.6 Arbitration................................................ 11
18.7 Expenses................................................... 11
18.8 Assignment................................................. 11
18.9 Third Party Benefits....................................... 11
18.10 No Partnership or Agency................................... 11
18.11 Force Majeure.............................................. 12
18.12 Notices.................................................... 12
18.13 Compliance with Law........................................ 12
18.14 Counterparts............................................... 12
18.15 Captions................................................... 13
18.16 Confidentiality of Agreement............................... 13
18.17 Language................................................... 13
Exhibits
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Exhibit A - Articles of Incorporation
Exhibit B - Asset Purchase Agreement
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JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT (this "Agreement") is entered into as of March
1, 1995, by and among:
I. Pacific Pay Video Limited, a corporation organized and existing under
the laws of the State of California, United States of America, with its
principal place of business at 405 Tasman Drive, Sunnyvale, California 94089,
the United States of America ("PPV");
II. Nag Yong Lee, a Korean individual residing at 82-102, Hyundai
Apartment, Apgujung-Dong, Kangnam-Gu, Seoul, Korea ("LEE").
RECITALS
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A. PPV is engaged in the development, manufacture, maintenance and
distribution of software, data processing works, accounting and computing
machinery and video distribution involving on-demand pay per view entertainment
and information systems for the lodging industry (hereinafter the "Products")
and has acquired and possesses valuable technical information, and experience in
the installation and operation of such Products; and
B. LEE (hereinafter, the "Korean Partner") is engaged in the pre-
scheduled hotel pay movie business in the Republic of Korea ("Korea") for
numerous years and has thus developed expertise with respect to said business.
C. PPV and LEE (hereinafter collectively, the "Parties," and
individually, the "Party") have mutually agreed to establish a joint venture
company in Korea to market, distribute and service such Products in the premier
hotel industry in Korea in accordance with the terms and conditions of this
Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties agree as follows:
1. Formation of the JVC.
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1.1 Promptly upon the receipt of all authorizations, approvals,
licenses and/or clearances from the Korean government or other authorities
necessary to carry out the activities contemplated by this Agreement in form and
substance satisfactory to all Parties, the Parties shall establish a joint
venture company (the "JVC") as a joint stock company (chusik-hoesa) under the
laws of Korea.
1.2 The name of the JVC shall be:
(a) In Korean: PPV Korea Chusik-Hoesa; and
(b) In English: Pacific Pay Video (Korea), Ltd.
1.3 The head office of the JVC shall be located at Seoul, Korea.
Branches and other business offices may be established anywhere within or
outside Korea, as required.
1.4 The Korean Partner shall render all possible assistance and
support to PPV in the preparation and submission of an "Application for Approval
of Foreign Investment" under the Foreign Capital Inducement Law and other
related documents, and in securing all approvals, licenses and permits from the
Korean authorities that are necessary or appropriate for the execution and
performance of this Agreement under the most favorable terms and conditions
possible. The Parties to this Agreement shall make best efforts to establish the
JVC within 30 days after execution of this Agreement.
2. Business Purpose. The business purpose of the JVC shall be as follows:
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(a) To market, distribute, and service software, data processing
works; accounting and computing machinery and video distribution involving on-
demand pay per view entertainment and information systems for use in the lodging
industry in Korea;
(b) To engage in foreign trade within the scope necessary for
carrying out the foregoing activities; and
(c) To engage in any and all acts, things, businesses and activities
that are related, incidental or conducive, directly or indirectly, to the
achievement of the foregoing businesses.
3. Article of Incorporation of the JVC.
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3.1 The JVC's articles of incorporation (the "Articles") and internal
regulations shall be in conformity with the terms and conditions of this
Agreement. If any discrepancy is found between this Agreement and the Articles
and internal regulations, the Parties shall amend the Articles and internal
regulations to make them consistent with this Agreement.
3.2 The Parties shall cause the JVC to adopt the Articles that are
substantially in the form attached hereto as Exhibit A.
4. Capital and Shares.
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4.1 The authorized capital of the JVC shall be TWO BILLION FIVE
HUNDRED MILLION Korean won (2,500,000,000), divided into FIVE HUNDRED THOUSAND
(500,000) shares of, common stock with a par value of FIVE THOUSAND Korean won
(5,000) per share.
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4.2 The paid-in capital of the JVC at the time of incorporation shall
be FIVE HUNDRED SIXTY MILLION Korean won (560,000,000), divided into ONE HUNDRED
TWELVE THOUSAND (112,000) shares of common stock with a par value of FIVE
THOUSAND Korean Won (5,000) per share.
4.3 The amount of subscription prices to be contributed and the
number of shares to be subscribed for by each Party at the time of incorporation
shall be as follows:
(a) PPV: FOUR HUNDRED SEVENTY SIX MILLION Korean won
(476,000,000) (equivalent to SIX HUNDRED TWO THOUSAND FIVE HUNDRED THIRTY TWO
United States dollars [US$602,532]) divided into NINETY FIVE THOUSAND TWO
HUNDRED (95,200) shares at FIVE THOUSAND Korean won (5,000) per share;
(b) LEE: EIGHTY FOUR MILLION Korean won (84,000,000) (equivalent
to ONE HUNDRED SIX THOUSAND THREE HUNDRED TWENTY NINE United States dollars
[106,329]) divided into SIXTEEN THOUSAND EIGHT HUNDRED (16,800) shares at FIVE
THOUSAND Korean won (5,000) per share.
4.4 Subject to the provision of Sections 4.5 and 4.6, the Parties
shall make their respective contribution to the paid-in capital of the JVC in
the following ratio:
(a) PPV: eighty five percent (85%);
(b) LEE: fifteen percent (15%);
4.5 The Parties shall make their respective initial capital
contributions in cash in Korean won or equivalent U.S. dollars.
4.6 Any shares issued by the JVC shall be common stock of one (1)
class, in non-bearer form evidenced by share certificates to be issued
immediately after the JVC is incorporated.
4.7 CAPITAL CONTRIBUTION TABLE
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(WOOO)
DATE PPV LEE FORM
- ---------------- ------- ------- ---------------------
Initial 476,000 84,000 Cash for Common Stock
April 1, 1995 657,333 116,000 Cash for Common Stock
June 1, 1995 266,667 47,000 Cash for Common Stock
Sept. 1, 1995 283,333 50,000 Cash for Common Stock
Jan. 1, 1996 680,000 120,000 Direct loan or guarantee
of third party loan
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In the event either party fails to make a cash contribution to equity in
the amount and on the date specified, the other party shall have the right to
make up such shortfall, and in such event the ownership percentages of the
respective parties shall be adjusted accordingly.
4.8 Unless otherwise provided by Korean law or this Agreement, no
additional shares of the JVC, whether common or preferred, shall be authorized
or issued except upon the prior written approval of a majority of the voting
shares of the JVC.
5. Conditions Precedent to Subscription. The obligations of the
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Parties to complete the subscription of shares, in the JVC under Section 4.3 are
subject to the following conditions precedent:
(a) All authorizations, approvals, licenses and/or clearances from
the Korean government or other authorities that are necessary to carry out the
activities contemplated by this Agreement shall have been received in form and
substance satisfactory to all Parties; and
(b) The Korean Partner shall deliver or cause to be delivered to PPV
a written undertaking that he and GLOBAL ENGINEERING INC. ("GLOBAL") shall
indemnify and hold harmless PPV from any damages, losses, lawsuits and claims
arising out of, or in connection with, the operation of the on-demand pay video
business prior to the establishment of the JVC.
6. Preemptive Rights. The shareholders of the JVC shall have preemptive
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rights in proportion to the number of shares held by each shareholder with
respect to any new issuance of shares of the JVC.
7. Transfer of Shares.
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7.1 If, at any time after the subscription of the shares of the JVC
in accordance with Section 4, either party or his successor(s) ("Transferer")
wishes to transfer its shares, then such party shall first offer such shares in
writing to the other party ("Transferee") specifying the proposed price and
other terms and conditions of sale. If the Transferee rejects or does not accept
the offer within sixty (60) days from the date of dispatch, and/or the
Transferer and the Transferee are unable to reach agreement on the price and
terms of such transfer, then the Transferer shall thereafter be free to dispose
of the shares so offered for a period of six (6) months after rejection or the
expiration of said acceptance period subject to the provision of Section 7
hereof. However, the Transferer may not dispose of such shares (i) at a lower
price than the price at which such shares were first offered to Transferee or
(ii) on terms and conditions substantively more favorable than those on which
shares were first offered to the Transferee.
7.2 In the event the Transferee exercises its option to purchase the
shares of the Transferer pursuant to Section 7.1, the Transferer, as
appropriate, shall sell to the Transferee the shares subscribed for by the
Transferer free and clear of all liens, claims, encumbrances or any impediments
of any nature whatsoever.
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7.3 If a material disagreement concerning the operation or management
of the JVC arises between any Transferer and Transferee, which either party
deems in good faith to be an irreconcilable disagreement, and after one hundred
twenty (120) days following written notice thereof by either party is given to
the other party, the notifying party continues to believe in good faith that an
irreconcilable disagreement exists, then the notifying party or his successor(s)
shall offer to sell his shares to the other party pursuant to the procedure set
forth in Paragraphs 7.1 and 7.2 hereof.
7.4 Notwithstanding the provisions of Section 7.1 above, the Korean
Partner or successor thereto shall not sell shares in the JVC to any third party
("Transferee") that is a competitor of either PPV or the JVC, or which
Transferee does not agree in writing to comply with and be governed by the terms
of this Agreement and to assume all obligations of the selling Korean Partner or
successors).
8. Shareholders.
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8.1 The board of directors shall decide the time and place for
convening all meetings of the shareholders of the JVC unless the applicable law
provides otherwise.
8.2 Unless otherwise provided by the applicable law, the presence of
shareholders representing a majority of the total number of shares issued and
outstanding shall constitute a quorum at all meetings of the shareholders, and
no meeting of shareholders shall be validly convened or constituted unless a
quorum is present at such meeting.
8.3 Unless otherwise provided by the applicable law, resolutions of
the shareholders at any meeting of shareholders shall be adopted by the
affirmative vote of a majority of the shares represented at such meeting at
which a quorum is present.
9.0 Board of Directors.
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9.1 The Parties shall exercise their respective voting rights in the
JVC and take such other steps as are necessary or proper to ensure:
(a) the board of directors of the JVC shall consist of three (3)
members;
(b) of such three (3) members, two (2) shall be nominated by PPV
and, so long as the Korean Partner continues to own at least ten (10) percent of
the equity of the JVC, one (1) shall be nominated by the Korean Partner; and
(c) if any of the Parties wishes to remove the directors it has
nominated with or without cause, the other Parties shall vote accordingly;
provided that if such removal is without cause, the Party proposing the removal
shall indemnify and hold the JVC and the other Party harmless for any and all
damages and other expenses that may arise from such action.
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9.2 Meetings of the board of directors may be convened by the
chairperson of the board of directors at the request of two (2) or more
directors.
9.3 Unless otherwise provided by the applicable law, the presence of
two (2) directors shall constitute a quorum at all meetings of the board of
directors, and no meeting of the board of directors shall be validly convened or
constituted unless a quorum is present at such meeting.
9.4 Unless otherwise provided by the applicable law, all actions
taken and resolutions adopted at a meeting of the board of directors shall be
taken or adopted by the affirmative vote of a majority of directors present at a
meeting at which a quorum is present.
9.5 If the position of director of the JVC becomes vacant for any
reason, the Parties agree to cause their shares to be voted to elect, as
director, a person nominated by the Party who had nominated the director whose
office is vacant.
10. Officers.
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10.1 The board of directors shall elect from its members one (1)
representative director who shall serve as the president of the JVC. The
director nominated by the Korean Partner shall serve as the initial
representative director of the JVC until changed by the board according to the
foregoing. The parties to this Agreement agree that the more detailed terms and
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conditions on the appointment of the representative director shall be provided
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in a separate agreement.
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10.2 The board of directors shall appoint such other officers as it
considers necessary or appropriate to operate the JVC. The board of directors
shall also determine the level of management staffing necessary or appropriate
to conduct the day-to-day operations of the JVC.
10.3 The president shall serve as the chairperson of the shareholders
meetings and the board of directors meetings. If the president is unable to
attend such meetings, the directors present shall elect a chairman among
themselves.
10.4 No director shall be deemed to have a separate, particular
interest in a matter and be disqualified from voting on such matter on the
ground that such director is a nominee of PPV or the Korean Partner, as the case
may be.
11. Statutory Auditor. The JVC shall appoint one (1) statutory auditor
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who shall be nominated by PPV at a meeting of shareholders.
12. Activity and Accounting.
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12.1 The Parties shall exercise their best efforts to enable the JVC
to obtain the necessary working capital by arranging financing for the JVC or
providing guarantees or otherwise.
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12.2 The JVC shall prepare monthly unaudited financial statements for
delivery to the Parties of this Agreement by the tenth day of the following
month.
12.3 The JVC, upon resolution of the shareholders and depending upon
the results of each fiscal year's settlement of accounts, shall make periodic
payment of dividends to the shareholders according to the provisions of the
applicable law and the provisions of the Articles.
12.4 Unless otherwise prescribed hereunder, all of the payments made
by the JVC to PPV shall be made in U.S. dollars at the bank account or other
address designated by PPV in writing.
12.5 The Korean withholding tax, if applicable, to the payments to PPV
shall be withheld by the JVC and be immediately paid to the competent Korean tax
office. The Parties shall cause the JVC to obtain from the competent tax
authorities a certificate of payment of such withholding tax or other
appropriate evidence in such form as shall be acceptable to the tax authorities
of PPV and forward the same to PPV.
12.6 The books and records of the JVC shall be maintained in
accordance with generally accepted international accounting principles and shall
accurately reflect the JVC's financial position. The books, records and
supporting documents of the JVC shall be available for inspection by any Party
or its designee at all reasonable times. Each Party may request an audit of such
records by a certified public accountant of its selection, other than the
statutory auditor used by the JVC for its annual audit, at the expense of such
Party.
12.7 The Parties agree to cause the books and records of the JVC to be
audited at the end of each fiscal year during the term of this Agreement by an
independent certified public accountant. Such accountant shall annually provide
the Parties with financial reports in both the English and Korean languages in
accordance with generally accepted international accounting principles. Copies
of such financial reports shall be provided to each of the Parties at the JVC's
expense. Such annual audits shall be final and binding upon the Parties as to
the revenues, costs, losses and profits of the JVC, in the absence of manifest
error or fraud.
12.8 The fiscal year of the JVC shall commence on January 1 and end on
December 31 of each calendar year; provided, however, that the first fiscal year
of the JVC shall commence on the date of the registration of incorporation of
the JVC and shall end on December 31 of that calendar year.
12.9 Profits of the JVC shall be calculated in conformity with the
requirements of Korean law and generally accepted international accounting
principles.
13. Related Agreements.
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13.1 Simultaneously with the execution of this Agreement, the Korean
Partner shall enter into the asset purchase agreement in the form attached
hereto as Exhibit B with the JVC
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information under which the JVC shall purchase from the Korean Partner certain
assets of GLOBAL that are necessary for the operation of the JVC as a on-demand
pay video business.
13.2 Immediately after the JVC is incorporated, the JVC and PPV may
enter into other agreements that are necessary for the successful operation of
the JVC, including technical Assistance or license agreements in the form
attached hereto as Exhibit C.
14. Non-competition.
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14.1 Throughout the term of this Agreement and two (2) years after
this Agreement is terminated for any reason, no Party shall engage in, and all
Parties shall cause their Affiliates not to engage in, any business or activity
in Korea, directly or indirectly except through the JVC, that is in competition
with any business or activity the JVC engages in at any time, regardless of
whether the Party or the Affiliate concerned engaged in said business or
activity before the JVC engaged in said business or activity. For the purpose of
this Section, GLOBAL shall be regarded as Affiliates of the Korean Partner.
14.2 PPV acknowledges that after the execution of this Agreement but
until the issuance by the Korean tax authorities of the business registration
certificate of the JVC, GLOBAL should act as the exclusive agent of the parties
to commence business in Korea and may engage in the normal business operations
such as receiving orders, collection of credits already invoiced by GLOBAL and
sales of the inventory already at GLOBAL's possession. Immediately after the JVC
has registered itself with the local tax authorities, GLOBAL shall assign and
transfer to the JVC all orders not yet completed by GLOBAL, and the JVC and
GLOBAL shall in good faith consummate the sale of items of inventory from GLOBAL
to the JVC, the sale price of which shall not exceed the book value of such
inventory.
14.3 If any Party or its Affiliate is engaged in any business or
activity in Korea which was not in competition with any business or activity of
the JVC at the time of commencement of said business or activity but becomes in
competition with any business or activity of the JVC, such Party shall promptly
cease to engage in such business or activity or shall cause such Affiliate to
promptly cease to engage in such business or activity, as the case may be.
15. Term. This Agreement shall be effective upon its execution by all
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Parties, and shall, continue in full force and effect until terminated in
accordance with the terms hereof.
16. Termination.
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16.1 Each Party shall have the right to terminate this Agreement
immediately by giving written notice to the other Parties, if any of the
conditions specified in Section 5(a) or (b) has not been fulfilled within six
(6) months after the execution of this Agreement or if it becomes evident that
any of the conditions specified in Section 5(a) or (b) cannot be satisfied.
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16.2 Each Party shall have the right to terminate this Agreement
immediately by giving a written notice to the other Parties, if any of the other
Parties commits a material breach of any of its obligations or covenants under
this Agreement and fails to cure such breach within sixty (60) days following
the date of the receipt of written notice thereof from the non-breaching Party.
16.3 If any Party has been adjudicated a bankrupt or has made an
assignment for the benefit of creditors, or if bankruptcy, insolvency,
reorganization, arrangement, debt adjustment, receivership, liquidation or
dissolution proceedings have been instituted by or against such Party and, if
instituted adversely, such Party consents to the same or admits in writing the
material allegations thereof or said proceedings shall remain undismissed for
sixty (60) days, any of the other Parties may terminate this Agreement.
16.4 Each Party shall have the right to terminate this Agreement
immediately by giving written notice to the other Parties if any of the other
Parties is prevented from performing any obligation under this Agreement because
of Force Majeure (as defined in Section 18.11) for longer than ninety (90) days.
17. Consequences of Termination.
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17.1 Upon termination of this Agreement, subject to the provisions of
Section 17.2, the Parties shall have no further rights or obligations under this
Agreement, except that the rights and obligations of any of the Parties that
have accrued at the date of termination shall not be affected thereby.
17.2 The Parties, obligations under Sections 14, 17, 18.5, 18.6 and
18.12 shall survive any termination of this Agreement and remain in full force
and effect in accordance with their terms thereafter.
17.3 The right of each Party to terminate this Agreement is not an
exclusive remedy, and upon breach of this Agreement, each Party shall be
entitled alternatively or cumulatively to any available remedy against the other
Parties under the applicable law.
17.4 After the termination of this Agreement for any reason:
(a) the JVC shall immediately change its name so that the word
"Pacific" or its Korean equivalent is no longer used as a part of its corporate
name, and neither the Korean Partner nor the JVC shall use the word "Pacific" or
any other word or words that are confusingly similar to the word "Pacific" or
any Korean equivalent thereof as its corporate name or a part thereof;
(b) neither the Korean Partner nor the JVC shall use the word
"Pacific" or any other word or words that are confusingly similar to the word
"Pacific" or any Korean equivalent thereof as its trademark, service mark, trade
name, business name, logo or other distinctive designation or a part thereof;
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(c) neither the Korean Partner nor the JVC shall use any of
PPV's trademark, service mark, trade name, business name, logo or other
distinctive designation or any Korean equivalent thereof; and
(d) the JVC shall immediately surrender or relinquish any rights
it has with respect to or in connection with the intellectual property rights
listed in Section 17.4(c).
17.5 If the Agreement is terminated by any Party pursuant to Section
16.2, 16.3 or 16.4, such Party shall have the right (without prejudice to any
other right it may have) to the extent permissible under Korean law:
(a) to require the Party who breached this Agreement or failed
to perform its obligations(s) under this Agreement to sell all of its shares to
the terminating Party or to its designee at their net worth as appraised by a
reputable appraiser agreed to by the Parties;
(b) to require the Party who breached this Agreement or failed
to perform its obligations(s) under this Agreement to purchase all or any
portion of the terminating Party's shares at their net worth as appraised by a
reputable appraiser agreed to by the Parties; or
(c) to require the other Parties to join with the terminating
Party to cause the JVC's liquidation.
17.6 If any Party is unable to exercise the right set forth in Section
17.5(a) or 17.5(b) because the exercise of such right is prohibited or
restricted under Korean law, such Party shall have the right to exercise the
right set forth in Section 17.5(c).
17.7 If the Agreement is terminated by any Party pursuant to Section
18.4, such Party shall have the right (without prejudice to any other right it
may have), to the extent permissible under Korean law, to require the other
Parties to join with the terminating Party to cause the JVC's liquidation.
18. Miscellaneous.
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18.1 Entire Agreement. This Agreement together with the Exhibits
----------------
hereto constitutes the entire understanding and agreement among all Parties and
supersedes any and all prior or contemporaneous, oral or written,
representations, communications, understandings and agreements among the Parties
with respect to the subject matter hereof.
18.2 Modifications. This Agreement shall not be modified, amended,
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canceled or altered in any way, and may not be modified by custom, usage of
trade or course of dealing, except by an instrument in writing signed by all
Parties. All amendments or modifications of this Agreement shall be binding upon
the Parties despite any lack of consideration so long as the same shall be in
writing and executed by the Parties.
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18.3 Waiver. Performance of any obligation required of a Party
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hereunder may be waived only by a written waiver signed by the other Parties,
which waiver shall be effective only with respect to the specific obligation
described. The waiver by each Party of a breach of any provision of this
Agreement by any of the other Parties shall not operate or be construed as a
waiver of any subsequent breach of the same provision or another provision of
this Agreement.
18.4 Severability. If any provision hereof is found invalid or
------------
unenforceable pursuant to any executive, legislative, judicial or other decree
or decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms, unless any Party deems the invalid or unenforceable
provisions to be essential to this Agreement, in which case each Party may
terminate this Agreement, effective immediately, upon written notice to the
other Party.
18.5 Governing Law. This Agreement and all disputes arising out of or
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in connection with this Agreement shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the Republic of Korea.
18.6 Arbitration. Any dispute, controversy or difference arising
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among the Parties out of or in relation to this Agreement or for the breach
thereof, if irreconcilable after one hundred twenty (120) days of good-faith
negotiations among the relevant Parties, shall be resolved by arbitra tion in
Seoul, Korea, and such arbitration proceedings shall be conducted in the English
language in accordance with the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by three (3) arbitrators. PPV shall appoint
one (1) arbitrator and the Korean Partner shall appoint one (1) arbitrator. The
two (2) arbitrators so appointed shall appoint the third arbitrator. The award
made by the arbitrators shall be final and binding upon the Parties and may be
enforced in any court of competent jurisdiction.
18.7 Expenses. Each Party shall pay all of its own expenses relating
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to the transactions contemplated by this Agreement, including without limitation
the fees and expenses of its counsel and financial advisers; provided, however,
that the attorneys' fees and other expenses incurred in connection with
obtaining the approval for PPV's foreign investment in the JVC and in connection
with the establishment of the JVC shall be assumed by the JVC, to the extent
permissible under the applicable law.
18.8 Assignment. No Party may assign this Agreement or any of the
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rights or obligations hereunder to any third party without the prior written
consent of the other Parties.
18.9 Third Party Benefits. This Agreement shall be binding upon, and
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inure to the benefit of, each of the Parties and their respective successors and
permitted assigns. Nothing contained in this Agreement, express or implied,
shall be deemed to confer any right or remedy upon, or obligate any Party to,
any person or entity other than the Parties.
18.10 No Partnership or Agency. Nothing in this Agreement shall be
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construed as creating a partnership, agency, employment relationship, franchise
relationship or taxable entity among the Parties, and no Party shall have the
right, power or authority to create any obligation or
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duty, express or implied, on behalf of the other Parties, it being understood
that the Parties are independent contractors vis-a-vis one another.
18.11 Force Majeure. The failure or delay of any Party to perform any
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obligation under this Agreement solely by reason of acts of God, acts of civil
or military authority, civil disturbance, war, strikes or other labor disputes
or disturbances, fire, transportation contingencies, shortage of facilities,
fuel, energy, labor or materials, or laws, regulations, acts or order of any
governmental agency or official thereof, other catastrophes, or any other
circumstance beyond its reasonable control ("Force Majeure") shall not be deemed
to be a breach of this Agreement so long as the Party so prevented from
complying with this Agreement shall not have contributed to such Force Majeure,
shall have used its best efforts to avoid such Force Majeure or to ameliorate
its effects, and shall continue to take all actions within its power to comply
as fully as possible with the terms of this Agreement. In the event of any such
default or breach, performance of the obligations shall be deferred until the
Force Majeure ceases.
18.12 Notices. All notices, demands, requests, consents or other
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communications hereunder shall be in writing and shall be deemed sufficiently
given if personally delivered, in which case such notice shall be deemed given
upon delivery, or sent by registered or certified mail, return receipt
requested, in which case such notice shall be deemed given five (5) days after
dispatch, or sent by telecopy, in which case such notice shall be deemed given
upon acknowledgment of receipt by the recipient, to the Parties at the following
addresses, or to such other address as may be designated by written notice given
by each Party to the other Parties:
To PPV:
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Attn: Chief Financial Officer
405 Tasman Drive
Sunnyvale, California 94043
U.S.A.
To LEE:
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Attn: Nag Yong Lee
82-102, Hyundai Apartment
Apgujung-Dong, Kangnam-gu
Seoul, Korea
18.13 Compliance with Law. The Parties shall at all times act to
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assure that the JVC shall comply with the laws and regulations of Korea and
other applicable authorities.
18.14 Counterparts. This Agreement may be executed in one (1) or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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18.15 Captions. The section headings and captions contained herein are
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for purposes of reference and convenience only and shall not in any way affect
the meaning or interpretation of this Agreement.
18.16 Confidentiality of Agreement. The Parties agree that they will
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not disclose, disseminate or cause to be disclosed the terms and conditions of
this Agreement, except insofar as disclosure is reasonably necessary to carry
out and effectuate the terms of this Agreement, and insofar as any Party is
required by law to respond to any demand for information from any court,
governmental entity or governmental agency.
18.17 Language. The Parties agree that the English language shall be
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the language used for the interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties executed this Agreement as of the date
first above written.
PACIFIC PAY VIDEO LIMITED
By: /s/ James A. Barth
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Name: James A. Barth
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Title: Vice President and CFO
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NAG YONG LEE
/s/ N.Y. Lee
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March 1, 1995
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