Exhibit 10.65
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("AGREEMENT") is made, this ___ day of
July, 2000, by and between ATM SERVICE, LTD. t/a XXXxxxxxx.xxx ("ATM") and
XXXX TORRENTS & ASSOC. ("JTA").
WHEREAS, the parties desire to form a joint venture for the purposes set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged and conclusively established, the parties
hereby agree as follows, intending to be legally bound hereby:
1. FORMATION OF A JOINT VENTURE. JTA and ATM (sometimes hereinafter
referred to as the "JOINT VENTURE PARTNERS" or "PARTIES") hereby agree to form a
joint venture to be known as XxxxXxxxxXxxxx.xxx (the "JOINT Venture"). The type
and nature of the entity to be formed by the Parties in order to facilitate the
operation of the business of the Joint Venture (the "JOINT VENTURE ENTITY") and
the country or state of the formation of the Joint Venture Entity will be
determined by ATM, with JTA's approval (which shall not be unreasonably
withheld).
2. PURPOSE OF THE JOINT VENTURE. The purpose of the Joint Venture (the
"BUSINESS") will be to create revenues, using the ATM e-commerce platform, from
asset management and disposition services, bulk and specific sales of products
and services (both on-line and off-line), auction services and other
transactions of various kinds, such as trade and barter, for, on behalf of or
with companies located within the Free Trade Zones and transaction fees paid by
such companies. The Parties acknowledge and agree that ATM offers its products
and services on a global basis and has granted the rights to represent the ATM
System in other parts of the world and that, notwithstanding anything contained
herein to the contrary, the Business shall be limited to the Free Trade Zones
and shall not include the representation of the ATM System or the sale of the
products and services offered by ATM outside of the Free Trade Zones.
3. ATM'S CONTRIBUTIONS TO THE JOINT VENTURE. ATM will contribute to the
Joint Venture the right to use the ATM transactional technology and existing
websites, marketing and sales efforts, the exclusive representation of the ATM
System within the Free Trade Zones, and its traditional know-how, asset recovery
and liquidation services. ATM will also make available to the Joint Venture
various development and operational services, including (i) access to its
fulfillment channels, (ii) the hosting, maintenance and technical support of all
hardware and software applications, (iii) customization of the transactional
technology, (iv) training with respect to the operation of the business, the
transactional software and business methodologies, (v) customization of the
business service offerings used by the Joint Venture, as needed, (vi) advice
concerning the preparation of initial marketing materials for the Joint Venture
and the preparation of an overall technology and business implementation plan
for the Joint Venture, and (vii) co-operation and support in the marketing and
implementation of commercial transactions and services. ATM will assign a staff
member to assist in the implementation of the business of the Joint Venture. In
addition, ATM may, if needed and approved by ATM, advance up to
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USD$50,000.00 (Fifty Thousand U.S. Dollars) to the Joint Venture Entity to cover
the initial costs of any necessary travel and other expenses of implementation,
in accordance with the Budget, which shall be reimbursed to ATM from the first
funds available to the Joint Venture Entity, whether from revenues from
operations or from raised capital.
4. JTA'S CONTRIBUTIONS TO THE JOINT VENTURE. JTA will contribute to the
Joint Venture 80% or more of Mr. Xxxx Torrents' time, one full-time dedicated
assistant and the support of JTA's entire professional team. JTA will also cause
the Free Trade Zone World Federation (Geneva, Switzerland) to exclusively
endorse and promote the products and services offered by ATM and use his best
efforts to develop the business of the Joint Venture through its industry
contacts and existing contracts (to the extent it can provide same with respect
to the Free Trade Zones) and other clients and contacts.
5. OUTSIDE FINANCING. If needed, the Parties shall use their best efforts
to obtain outside funding for growth or other ventures for the Joint Venture or
conclude a public offering of the securities of the Joint Venture Entity (an
"IPO") and shall cooperate and assist the Joint Venture in all reasonable ways
to obtain such funding or conclude such IPO.
6. MANAGEMENT. The business of the Joint Venture Entity will be managed by
its Board of Directors or other governing body, which will consist of at least
three (3) members, and which will, among other things, review and approve the
Joint Venture Entity's annual operational and capital budgets ("BUDGET") and
strategic operating plans. ATM will manage the day-to-day business of the Joint
Venture.
7. DISTRIBUTIONS OF AVAILABLE CASH. All cash available for distribution
to the Joint Venture Partners will be distributed 50% to JTA and 50% to ATM.
8. EQUITY OWNERSHIP. The equity interest in the Joint Venture Entity will
be owned by the Joint Venture Partners as follows:
ATM 62%
JTA 38%
In the event of any future equity infusions, each Party's equity will be diluted
on a pro rata basis.
9. TRANSFER OF EQUITY INTEREST. Neither Party may transfer its equity
interest in the Joint Venture Entity without consent of the other Party for a
period of two (2) years from the date of the formation of the Joint Venture
Entity.
10. KEY MAN INSURANCE. The Joint Venture Entity may procure and maintain
key person life insurance policies on the lives of certain executives of the
Joint Venture Entity, payable to the Joint Venture Entity, as beneficiary, in
the amount of up to $1,000,000 each.
11. NON-COMPETITION AND NON-CIRCUMVENTION AGREEMENTS.
a. Each Joint Venture Partner hereby agrees not to compete with the
Joint
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Venture Entity, in any way, directly or indirectly, or to circumvent
either the Joint Venture Entity or the other Party, in any way, with
respect to the Business, during the term of this Agreement. The
Parties will each enter into definitive Non-Competition and
Non-Circumvention Agreements with the Joint Venture Entity in form
and substance reasonably satisfactory to the Joint Venture Entity.
b. During the term of this Agreement and for a period of five (5) years
after its termination by either Party, for any reason, neither JTA
nor any of its agents, representatives or distributors shall compete
with ATM, directly or indirectly, either on its own behalf or on
behalf of any other person, firm, partnership, corporation or other
entity, in the sale or promotion of any products or services which
are the same as or similar to the products or services offered by
ATM.
c. Neither Party shall, at any time, disclose to any person any of the
trade secrets, proprietary or confidential information, business
methods or systems used by the other Party. All customer lists,
brochures, reports, and other such information of any nature made
available by either Party to the other or to the Joint Venture
Entity, or acquired by either Party by virtue of its association
with the other Party or the Joint Venture, shall be held in strict
confidence by such Party during the term of this Agreement and for a
period of five (5) years after its termination. Further, the Parties
will each cause each of their employees and agents involved in the
conduct of the Business to execute an agreement (each, an "EMPLOYEE
AGREEMENT"), expressly naming both the other Party and the Joint
Venture Entity, as intended third party beneficiaries, whereby such
employees or agents agree to be individually bound by the provisions
of this Section 11(c), and each Party will, at its sole expense,
take all action necessary to enforce such Employee Agreements with
its employees on behalf of the other Party and/or the Joint Venture
Entity.
12. TERM; TERMINATION. The term of this Agreement shall be a period of twenty
(20) years, commencing on the date hereof; PROVIDED, HOWEVER, that either
Party shall have the right to terminate this Agreement at any time in the
event that (i) the other Party violates or is in conflict, in any way,
with the U.S. Foreign Corrupt Practices Act, for any reason, or (ii) the
other Party fails to perform or fulfill its duties and obligations
hereunder or pursuant to any other agreement between the Parties and to
cure such default within thirty (30) days after its receipt of a written
notice of default from the non-defaulting party.
13. COSTS AND EXPENSES. Except as otherwise provided herein, ATM and GAP shall
each bear any and all costs or expenses incurred by such party in
connection with the performance of its duties and obligations under this
Agreement.
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14. UNAUTHORIZED REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION. Neither JTA
nor any agents or employees of JTA shall extend any warranty or guarantee
or make any representations or claims with respect to the ATM System or
the services provided by ATM, without express written authorization from
ATM, and JTA shall indemnify, defend and hold harmless ATM and the Joint
Venture Entity from and against any and all claims or liability arising as
a result of any such unauthorized representations or warranties or any
other negligent, intentional or other acts of JTA or any agent or employee
of JTA.
15. GOVERNING LAW; WAIVER OF JURY TRIAL; VENUE AND JURISDICTION.
THIS AGREEMENT, AND ALL TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT GIVING
EFFECT TO CONFLICT OF LAW PRINCIPLES. EACH OF THE PARTIES HERETO HEREBY
WAIVES TRIAL BY JURY IN CONNECTION WITH ANY LEGAL ACTION BROUGHT BY EITHER
PARTY WITH RESPECT TO THIS AGREEMENT AND AGREES TO SUBMIT TO THE PERSONAL
JURISDICTION AND VENUE OF A U.S. COURT OF SUBJECT MATTER JURISDICTION
LOCATED IN XXX XXXX XXXXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA.
16. NOTICES. Any notice under this Agreement shall be deemed given on the
third business day following the mailing of any such notice, postage paid,
to the address set forth below:
If to ATM:
ATM Service, Ltd.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000 XXX
Attention: Chairman
If to JTA:
17. ETHICAL BUSINESS PRACTICES.
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Neither Party shall pay, offer or otherwise authorize payment of any
monies or anything of value to any government official or employee or to any
political party or candidate for political office for the purpose of influencing
any act or decision of such official or of the government to obtain or retain
business or perform any other act that is unlawful under the laws of any country
included within the Territory. This prohibition shall not, unless otherwise
prohibited by law, apply to modest facilitating payments to low-level government
employees for the purpose of expediting or securing a routine administrative
action ordinarily performed by such employees, provided the recipient of such
service or action is entitled to receive such service or action and the payment
is customary and appropriate within such country. The Joint Venture Entity shall
have the right to audit the books and records of either Party in order to
satisfy itself that no breach of this Section 17 has occurred and such Party
shall fully cooperate in any audit conducted by or on behalf of the Joint
Venture Entity. In the event the Joint Venture Entity has reason to believe that
a breach of any of the provisions of this Section 17 by either Party has
occurred or may occur (a) the Joint Venture Entity may withhold further payments
to such Party until it has received confirmation to its satisfaction that no
breach has occurred or will occur, and neither the Joint Venture Entity nor the
other Party shall be liable to such Party for any losses or damages whatsoever
related to the Joint Venture Entity's decision to withhold such payments, (b)
the non-breaching Party shall have the right to immediately terminate this
Agreement upon written notice to the breaching Party, (c) any payments due the
breaching Party hereunder shall be automatically forfeited, (d) any
distributions previously paid to the breaching Party by the Joint Venture Entity
with regard to such transaction shall be refunded to the Joint Venture Entity by
the breaching Party, and (e) the breaching Party shall indemnify, defend and
hold the Joint Venture Entity and the non-breaching Party harmless from and
against any and all claims, losses or damages arising from or related to such
breach or the termination of the Agreement, or both. In no event shall either
Party be obligated under this Agreement to take any action or omit to take any
action that such party believes, in good faith, would cause it to be in
violation of any laws of the Territory or any U.S. laws, including without
limitation the Foreign Corrupt Practices Act.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements between the Parties with respect
to the subject matter hereof. No representation, warranty, promise or condition
not contained herein shall be binding upon either Party.
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly
executed as of the date first above written.
ATM SERVICE, LTD. XXXX TORRENTS & ASSOC.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx Torrents
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Name: Xx. Xxxxxx Xxxxxxxxx Name: Mr. Xxxx Torrents
Title: President Title: President
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