JOINT VENTURE AGREEMENT
This Agreement is made as of this , 2005 by and between:
1. Best Xxxx Investments Holdings Ltd., a corporation duly organized and
existing under the laws of the British Virgin Islands with it's a
registered office at Xxxxx, Fabrega & Fabrega Trust Co. BVI Limited,
000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxx Building, 2nd Floor, Xxxxxxx'x Xxx,
Road Town, Tortola, British Virgin Islands (hereinafter referred to as
"XXXX"), which is a wholly owned subsidiary of Xxxx Trading Company
Limited, a company organized and existing under the law of Hong Kong
and having its registered office at 10th Floor, DCH Building, 20 Xxx
Xxxxxx Road, Kowloon Bay, Hong Kong (hereinafter referred to as "Xxxx
Trading"); and
2. SPAR International Ltd., a company organized and existing under the
laws of the Cayman Islands, having its a registered office in
Georgetown, Grand Cayman with an office 000 Xxxxx Xxxxxx Xxxx,
Xxxxxxxxx, XX, XXX (hereinafter called "SPAR"),
WITNESSETH THAT:
WHEREAS, XXXX is a wholly owned subsidiary of Xxxx Trading which is engaged in
the retail solution businesses in Hong Kong and China, having a wide range of
clients and also having various knowledge and human resources with respect to
the retailing businesses in Hong Kong and China.
WHEREAS, SPAR is engaged in the retail solution businesses in the USA, having
computer software useful for agency, assistance, instruction and reporting of
storefront activities and also having operational know-how with respect to such
software; and
WHEREAS, XXXX and SPAR are desirous of organizing a Hong Kong corporation to
acquire a company in China to conduct a retail solution businesses in China and
will further consider whether to extend the retail solution businesses to Hong
Kong (Hong Kong and China are collectively referred to as "Territory").
NOW, THEREFORE, in consideration of the mutual covenants and agreement herein
contained, the parties hereto agree as follows:.
CHAPTHER I: ORGANIZATION OF THE NEW COMPANY
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Article 1. Establishment
Promptly after the effective date of this Agreement, the parties hereto shall
cause a new company to be organized under the laws of Hong Kong (hereinafter
called "SPAR China"). SPAR China shall then
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form a wholly owned subsidiary in the rest of China and upon formation, The
wholly owned subsidiary and SPAR China shall become a party to this Agreement
(herein referred to as the "New Companies").
Article 2. Business Purposes
The business purposes of the New Companies shall consist of the following:
1. Provide retail merchandising and product demonstration services;
2. Agency, assistance, instruction and report of storefront sales activities;
3. Implementation of market research and analysis of results thereof;
4. Installation of displays for new product launch, cut-ins and category resets;
5. Re-ordering and replenishment; .
6. Assembly of setups used for sales promotion;
7. POSM management/POP monitoring;
8. Consulting regarding store management;
9. Development and sale of management system regarding retailing;
10. Designing and sale of data; and
11. Any and all businesses incidental or relating to any of the foregoing.
Article 3. Trade Name
The New Companies shall be named in the Territory as SPAR China Ltd. or as
mutually agreed between the parties. However at a future date and with written
notice the name of the companies may be changed to reflect the equal shared
ownership of the New Companies by Xxxx Trading using the name "Xxxx" or "DCH" at
its discretion.
Article 4. Location
SPAR China shall have its main office in Hong Kong.
Article 5. Articles of Association
The Articles of Association of SPAR China shall be attached as Exhibit A hereto.
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Article 6. Capital
The total number of shares which SPAR China shall be authorized to issue shall
be 5,000,000 that par value of each share shall be HK$1.00. At the time of
establishment of SPAR China shares shall be issued and fully subscribed by the
parties hereto as follow:
o SIMS 50% HK$800,000.00
o SPAR: 50% HK$800,000.00
All the shares to be issued by SPAR China shall be ordinary shares
Article 7. Payment
Each of the parties hereto shall pay in Hong Kong dollars and in cash the amount
equivalent to its subscribed shares at par value upon issuance of the shares of
SPAR China.
CHAPTER II. PREPARATION OF ESTABLISHMENT OF THE NEW COMPANIES
-------------------------------------------------
Article 8. Preparation of Establishment of SPAR China
Each party shall take its role as described below for the preparation of the
commencement of SPAR China business. Any expenses and costs necessary for such
preparation shall be borne by each party.
SPAR shall enter into with XXXX on behalf of SPAR China Ltd. a license agreement
in the form attached hereto as Exhibit B (the "License Agreement"). For
reference, the License Agreement includes the obligations of SPAR to:
1. localize, set up, maintain and enhance software provided by SPAR to
work in China;
2. localize, set up, maintain and enhance software provided by SPAR to
work in Hong Kong at the option of the New Companies;
3. consult on the organization of merchandising services;
4. train the New Companies' personnel in how to operate the merchandising
software;
5. give advice on budgeting and development of each business plan;
6. provide 24 hours/day/365days/year IT system support and problem solving
services to the New Companies with no consideration for time
differences;
7. Promote the New Companies' services to SPAR US customers with
operations in the Territory.
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Xxxx Trading shall:
1. provide office space, facility and other back office and support
services to the New Companies under the terms described in Article 26
herein;
2. arrange meetings with current clients to promote the New Companies'
services;
3. transfer such business as is practical to the New Companies currently
performed by Xxxx Trading on behalf of Xxxx Trading's principals at
charges to be agreed between the parties hereto. [Need to determine
pricing.]
CHAPTER III: GENERAL MEETING OF SHAREHOLDERS
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Article 9. Annual General Meeting and Extraordinary General Meeting
The Annual General Meeting of Shareholders shall be held in Hong Kong or any
other vicinal place within 3 months from the day of each accounting period of
SPAR China.
An Extraordinary General Meeting shall be convened whenever deemed necessary by
the parties hereto.
Article 10. Quorum
A quorum of the General Meeting of Shareholders shall be the parties hereto
present either in person or by proxy.
Article 11. Resolution
Except as expressly otherwise provided in the Articles of Association of SPAR
China Ltd. and this Agreement, all resolutions of the General Meeting of
shareholders shall be adopted by the affirmative vote of shareholders holding at
least 52% of the shares present or represented at meeting for which there is
quorum or by written resolutions of all shareholders.
Article 12. Important Matters
In addition to such matters as required by the Articles of Association of SPAR
China and the Companies Ordinance (Chapter 32, Laws of Hong Kong), any
resolutions of the following matters by the General Meeting of shareholders
require the affirmative vote of at lease three quarters of the votes of the
shareholders present:
1. any amendment or modification of the Articles of Association;
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2. increase or decrease in the authorized capital or paid-up capital;
3. issuance of new shares or any other kind of equity securities or
instruments convertible into equity securities or the decision to
undertake a Public Offering (as defined in Article 30);
4. issuance of debentures;
5. transfer of any part or whole of business
6. any and all matters relating to dividends of SPAR China;
7. dissolution or amalgamation;
8. change in number or length of tenure of Directors;
CHAPTER IV: BOARD OF DIRECTORS AND OFFICERS
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Article 13. Election of Directors
The Board of Directors of the SPAR China shall consist of four (4) Directors;
two (2) of whom shall be elected from among those appointed by XXXX and 2 of
whom shall be elected from those appointed by SPAR. The Chairman of the Board of
Directors shall be elected from the Directors by the mutual consultation of both
parties. In case of any increase or decrease in the number of Directors, the
representation stipulated above shall be unchanged and pro-rata at all times.
Article 14. Election of Officers
Officers shall be appointed by the Board of directors and serve at their
pleasure.
Article 15. Office of Director
The term of office of each Director shall expire at the close of each Annual
General Meeting of Shareholders, which relates to the closing of the annual
accounts, but each of the Directors are eligible for re-election.
Article 16. Quorum
Each Director shall have one (1) voting right in the Board of Directors. The
quorum at meetings of the Directors shall be two (2) Directors, provided that at
least one of the Directors appointed by SPAR
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and at least one of the Directors appointed by XXXX. All resolutions shall be
adopted by the affirmative vote of more than two-thirds of the votes of the
Directors that are in attendance or by proxy.
Article 17. Meetings of the Board of Directors
The Ordinary Meetings of the Board of Directors shall be held quarterly and an
Extraordinary Meeting of the Board of Directors shall be held when necessary,
and shall be convened in accordance with the provisions of the Articles of
Association and this Agreement To the extent then permitted, any meeting of the
Board of Directors may be held by interactive video conference or other similar
electronic or telephonic means, and any action that may be taken by the Board of
Directors at a meeting thereof (whether in person or video conference) may be
effected in lieu of such meeting by unanimous written consent resolution
executed by each member of the Board of Directors. The parties hereto confirm
that the prevailing interpretation in Territory is that meetings of boards of
directors may be held by interactive videoconference. A written record in
English of all meetings of the Board of Directors and all Board decisions shall
be made available as promptly as practicable after each meeting of the Board of
Directors. At each meeting, one Director shall be selected by the attending
Directors to act as the Secretary of the meeting and keep the records of the
meeting. The records of the meeting shall be confirmed by the signature of each
of the Directors.
Article 18. Important Matters
In addition to such matters as required by the Articles of Association of SPAR
China, the following matters of the Board of Directors meeting shall require the
unanimous vote of all Directors:
1. Any proposal to the shareholders or action by the Board of Directors
for the matters as provided in Article 12 hereof;
2. any investment or commitment of SPAR China in amounts individually in
excess of HK $200,000.00 or in the aggregate in excess of
HK$400,000.00;
3. any loan or credit taken by SPAR China;
4. execution, amendment or termination of agreements or commitments with
XXXX, SPAR or their subsidiaries or affiliates;
5. adoption or amendment of the annual budgets and business plan;
6. adoption or any material modification of major regulations or
procedures, including any employee rules or handbook;
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7. change of the auditing firm as provided in Article 21;
8. initiating or settling any litigation, arbitration or other formal
dispute settlement procedures or forgiveness of any obligation owed to
SPAR China in excess of HK$200,000.00;
9. approval of annual closing of the books of SPAR China and SPAR China's
annual financial statements, and changing of accounting policies and
practices or SPAR China's accounting periods;
10. No sale at disposition of or granting a lien, security interest or
similar obligation with respect to, in one or a series of related
transactions of SPAR China or with respect to any major strategic asset
of SPAR China that is crucial to SPAR China's business;
11. Formation of any subsidiary of SPAR China, entry into (or subsequent
termination of) any joint venture, partnership or similar agreements;
12. Entering into amending or terminating agreement or commitment to
provide goods or services outside the Territory.
13. Appointment or dismissal of the President or Chief Executive Officer.
CHAPTER V: AUDIT
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Article 19. Accounting Period
The accounting periods of SPAR China shall end on the 31st day of December of
each year.
Article 20. Statutory Auditors
A Statutory Auditor shall be appointed by SPAR China where required by law.
Article 21. Inspection of Accounting Records and Books
The accounting records and books of SPAR China shall be audited annually. SPAR
China shall submit a report of such audit to each of the parties hereto within
thirty (30) days from the completion of the audit.
Ernst & Young or KPMG or another mutually accepted international auditing firm
shall be the auditing firm engaged by SPAR China. This auditing firm shall audit
the accounting records and books of the New Companies and any other matters
relating, directly or indirectly, to the financial conditions of New Companies.
Any fee for the certified public accountant for inspection and audit mentioned
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above shall be borne by New Companies. SPAR China shall keep true and correct
accounting records and books with regard to all of its operations in accordance
with generally accepted accounting principals consistently applied ("GAAP") in
Territory. All accounting records and books shall be kept ready for inspection
by the parties hereto or by their authorized representative. If requested by
SPAR, SPAR China shall cooperate with respect to each financial period to
provide such information as required by SPAR to reconcile SPAR China's financial
statements with U.S. GAAP reporting requirements of SPAR.
Article 22. Increase of Capital
In case of capital increase of SPAR China after its establishment, XXXX and SPAR
shall have the preemptive right to new shares to be issued for such capital
increase in proportion to their respective shareholdings in SPAR China.
CHAPTER VI: TRANSFER OF SHARES
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Article 23. Restrictions on Transfer of Shares
Except as provided in Article 24 hereof, neither party hereto shall, without the
prior written consent of the other party, assign, sell, transfer, pledge,
mortgage, or otherwise dispose of all or any part of its shares (including its
right to subscribe to new shares) of SPAR China to any third parties.
Article 24. Preemptive Right and Option
1. After five (5) years from the effective date of this Agreement, if either
party hereto (hereinafter called "Selling Party") wishes to transfer and sell
all but not less than all of its shares, the Selling Party shall furnish to the
other shareholder in SPAR China (hereinafter called "Other Party") a written
notice ("Sale Notice") of the proposed sale. The Sale Notice should include the
offered sale price to be determined in accordance with sub-paragraph (3) hereof
and other major terms and conditions of such proposed sale. Except with the
consent of the Other Party, a Sale Notice shall be irrevocable.
2. The Other Party shall have a right to purchase such shares by giving Selling
Party a written notice of its intention to purchase the same within ninety (90)
days ("Acceptance Period") from the receipt of Selling Party's notice, upon the
same terms and conditions as described in the Selling Party's notice. The
Selling Party may sell such shares upon the terms and conditions as described in
its notice after ninety (90) days from the date of Other Party's receipt of such
notice. Unless agreed by the Other Party in writing, any transferee party shall
be subject to this Agreement.
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3. The sale price for the shares shall be the price as may be determined, at the
request of the Other Party and at the cost of SPAR China, by the Auditors of the
New Companies (acting as experts and not as arbitrators) on the basis of the net
asset value and net profit after tax as shown in the latest audited accounts of
the New Companies (whichever is greater), provided that if at the date of the
Sale Notice the market value as between a willing seller and a willing buyer
acting at arm's length of any of the assets of SPAR China is greater or less by
ten percent (10%) or more than the book value of such assets then the market
value of such assets shall be substituted for the book value thereof in
computing the fair value of the shares.
4. If the Other Party does not give notice to the Selling Party within the
Acceptance Period that the Other Party is willing to proceed with the purchase,
the Selling Party shall be at liberty, within a period of sixty (60) days from
the expiration of the Acceptance Period, to sell and transfer the shares
(subject to sub-paragraph 7 hereof) at any price but not less than the sale
price to any other third party(ies) as the Selling Party shall determine,
provided that the shareholders of SPAR China in shareholders' meeting shall
first be reasonably satisfied as to the financial position and other conditions
of such third party(ies) and its or their ability to comply with the obligations
of the Selling Party before registering the transfer.
5. Notwithstanding anything to the contrary (expressly or implied) herein
contained, upon registration of the Other Party or third party(ies) as the
shareholder(s) of all the shares of the Selling Party of and in SPAR China the
Selling Party shall cease to be bound by the terms and provisions of this
Agreement and its rights under this Agreement shall be extinguished but without
prejudice to any rights accrued or accruing by the virtue of any antecedent
breach of any term or provision hereof.
6. The remaining shareholders shall procure that SPAR China release forthwith
any Director(s) of SPAR China appointed by the Selling Party after the sale or
transfer of the shares by the Selling Party from all their offices and
employments with SPAR China and the Selling Party shall upon request of the
remaining shareholders procure that any such Director(s) resign forthwith all
their offices and employments with SPAR China without payment of any
compensation by the SPAR China to such Director(s) in respect thereof and shall
indemnify SPAR China against any claim by any such Director(s) in connection
with such loss of office and employment.
7. Any transfer of shares in SPAR China pursuant to Article 24 shall be
conditional upon the transferee entering into an agreement with the existing
shareholder(s) whereby the transferee shall agree to be bound by and to observe
and perform the terms and conditions of this Agreement.
Article 25. Cooperation in Financing
1. SPAR China may borrow up to HK$8,000,000 as its operating funds which shall
be guaranteed by
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Xxxx Trading if necessary. As a condition precedent to Xxxx Trading executing
any guarantee or providing any form of security to the Lender as security for
the facility, SPAR has to execute a guarantee or provide other forms of security
in favour of Xxxx Trading as security for up to half of Xxxx Trading's
liabilities, costs and expenses (legal or otherwise) under such facility. The
terms of the borrowing and any agreement between SPAR China and Xxxx Trading
with respect to Xxxx Trading guarantee shall be matters subject to Article 18
hereof.
2. SPAR China may borrow an additional HK$8,000,000 when it needs additional
funds, if such borrowing is approved in advance by the Board of Directors as an
important matter under Article 18 herein.
3. If Xxxx Trading is required to pay any amounts under Article 25(1) and 25(2)
due to a guarantee made by Xxxx Trading for such amounts in favor of SPAR China,
SPAR shall forthwith reimburse Xxxx Trading for half of the amount paid or
payable by Xxxx Trading. SPAR's failure to comply this Article 25(3) will
entitle Xxxx Trading to enforce its rights against SPAR under any of the deeds,
guarantee or documents executed by SPAR in favour of Xxxx Trading pursuant to
Article 25(1) hereof.
CHAPTER VII: ROLE OF CONTRACTING PARTIES
---------------------------
Article 26. Supply of Office and Facility
1. Xxxx Trading shall at Xxxx Trading's sole discretion supply offices and
facilities, staff service for general affairs and finance, and intra company
network services building on the infrastructure of Xxxx Trading's four regional
offices, namely, Guangzhou, Shenzhen, Shanghai and Beijing, which are necessary
for the operation of the New Companies after the consultation between both
parties, and at no charge to the New Companies for a period of four (4) years.
PROVIDED ALWAYS THAT (a) Xxxx Trading's total incremental cash expenses under
this Article 26(1) in the 4-year period shall not in any event exceed
HK$1,750,000; and (b) any such incremental cash expenses exceeding the said
limit of HK$1,750,000 shall be borne by the New Companies absolutely and the New
Companies shall settle in favour of Xxxx Trading in full all the expenses each
month without delay; and (c) any office(s) of the New Companies to be set up
outside Xxxx Trading's four regional offices in China shall be at the sole and
absolute discretion of Xxxx Trading and in reaching its decision, Xxxx Trading
shall be entitled to take into accounts matters including without limitation,
the profitability of customers' needs and requests for the New Companies'
services, feasibility studies and prospect of development and expansion of the
business.
2. SPAR for first four (4) years will provide up to a total of four thousand
(4,000) hours of business
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support. This support may be in the form of general business, consultation or
programming support to modify or enhance the merchandising software. SPAR will
maintain ownership of all software. Ownership of any of the information and
database of SPAR China clients shall belong to SPAR China absolutely. If support
provided exceeds four thousand (4,000) hours the additional hours will be billed
by SPAR to SPAR China at US$55.00 per hour. Coach travel for work performed on
behalf of the Joint Venture by SPAR or XXXX or Xxxx Trading would be paid for by
SPAR China.
3. Both Parties agree that their operating expenses, which include the
management hours of the Directors and other senior management staff, may not be
allocated to SPAR China in the first five (5) years.
Article 27. Personnel
Xxxx Trading shall, at its own judgment, second to SPAR China its personnel who
are appropriate for the start-up of business of the New Companies for a period
of one (1) year without any consideration. In principal, SPAR China shall be
responsible for the payment of salaries and benefits for full time personnel and
all other matters concerning their employment; however Xxxx Trading shall, at
its own judgment, pay such salaries and benefits as necessary to maintain the
profitability of SPAR China.
Article 28. Training
Each party hereto shall provide the appropriate training to the employees for
the New Companies' operation at its own site. The said training shall be made
upon SPAR China's request and any necessary expenses for the training shall be
borne by SPAR China, except as otherwise provided in License Agreement as
provided by article 26.
Article 29. Non-Competition
For five (5) years from the Execution Date of this Agreement, neither SPAR nor
Xxxx Trading shall without the prior written consent of the other, engage in,
whether directly or indirectly, Merchandising Services (as defined in the
License Agreement) in Territory or any other business then competitive with SPAR
China in Territory save and except that Xxxx Trading shall be allowed without
any restrictions whatsoever to continue to carry on its Merchandising Services
under Twin Tiger International Limited in Hong Kong any time whether during the
subsistence of this Agreement or after its termination. In the event that SPAR
enters into an agreement with a customer that covers more than one country and
the scope of such agreement includes service in the Territory, SPAR shall not be
prohibited from entering into or performing such agreement, provided that SPAR
shall be obliged to notify XXXX
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Xxxxx of such agreement(s) (including global agreements) and SPAR shall use all
reasonable efforts to procure that SPAR China has a right of first refusal to
enter into and perform such agreements and the terms so offered to SPAR China
shall always be no less favourable than the terms so offered to any subsequent
parties. Notwithstanding any provisions to the contrary herein, in the event
that any Merchandising Services or any other business then competitive with SPAR
China in the Territory is carried out by SPAR directly or indirectly and whether
alone or jointly with any other third party(ies) whatsoever, XXXX shall be
entitled to charge a commission on the gross fees so received by SPAR at rate to
be fairly and reasonably determined by both parties and in any event the charges
for the merchandising services shall not be lower than the standard rate charged
by SPAR China.
For the avoidance of doubt, SPAR China has been granted the non-transferable and
exclusive license to use the Licensed Technology (as defined in the License
Agreement) in the Territory under the License Agreement. During the subsistence
of this Agreement and the License Agreement, SPAR shall not further license the
Licensed Technology to any other party(ies) in the Territory whether or not for
the purpose of providing such Merchandising Services or any other business then
competitive with SPAR China which SPAR China has exercised its first right of
refusal to take up.
Xxxx Trading may also continue to offer services to Xxxx Trading's clients that
exist on the date of execution of contract as long as they are similar to
services offered prior to the execution of this contract and Xxxx Trading has
made reasonable effort to transfer such business to the New Companies.
CHAPTER VIII: AMENDMENT FOR PUBLIC OFFERING
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Article 30. Public Offering
Both parties acknowledge that SPAR China may attempt to become a listed company
or over-the-counter company on the Territory Stock Exchange or any other stock
exchange or public market in Territory (the "Public Offering"). Both parties
acknowledge that the number of issued shares, the number of shareholders, the
paid-up capital and profit transaction with each party, the seconded employees
of SPAR China will be reviewed and instructed for amendment by the relevant
governmental or regulatory authorities in accordance with those bodies' rules or
guidelines for Public Offerings. If both parties agree to undertake a Public
Offering pursuant to Article 12 above, both parties shall discuss and reasonably
cooperate with each other to amend the Articles of Agreement and/or the License
Agreement in order to complete the Public Offering of SPAR China. Any changes to
the License Agreement will be effective upon consummation of the Public Offering
(but not before),
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and subject to the approval of the Boards of Directors of SPAR China, XXXX and
SPAR.
CHAPTER IX: CONFIDENTIALITY
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Article 31. Confidential Information
XXXX and SPAR shall keep secret and retain in strict confidence any and all
confidential information and use it only for the purpose of this Agreement and
shall not disclose it to a third party without the prior written consent of the
other party unless the receiving party can demonstrate that such information:
(i) has become public other than as a result of disclosure by the receiving
party, (ii) was available to the receiving party prior to the disclosure by the
disclosing party with the right to disclose, or (iii) has been independently
acquired or developed by the receiving party.
CHAPTER X: GENERAL PROVISIONS
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Article 32. Effective Date and Duration
1. This Agreement shall become effective at the time of execution hereof.
2. Subject to the following provisions of Article 33, this Agreement shall
take effect from the effective date and shall continue in force for a
term of five (5) years. This Agreement shall automatically renew for
successive five (5) year periods following the end of each preceding
five (5) year period unless one of the parties hereto serves a written
notice of termination to the other six (6) months before the end of
each period before termination can take effect.
Article 33. Termination
1. If either party transfers its shares in SPAR China to the other party
hereto in accordance with Article 24 hereof, this Agreement shall be
terminated after completion of the transfer of shares under Article 24.
If either party transfers its shares in SPAR China to another party,
unless expressly agreed by the non-transferring party in writing, this
Agreement shall be assigned to and binding upon such third party,
provided that the assigning party shall remain liable for all legal
acts with respect to this Agreement or the SPAR China occurred before
the Effective Date of such assignment.
2. In the event of a breach of this Agreement, the party not in breach of
this Agreement, may terminate this Agreement by written notice to the
party in breach of this Agreement if such breach shall not have been
corrected by the party in breach within ninety (90) days after written
notice is given by
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the party not in breach.
3. Either party may terminate this Agreement by giving notice in the event
of one or more of the following:
(a) Appointment of a trustee or receiver for all or any part of the assets
of the other party;
(b) Insolvency or bankruptcy of the other party;
(c) Assignment of the other party for the benefit of creditor;
(d) Attachment of the assets of the other party;
(e) Expropriation of the business or assets of the other party; and
(f) Dissolution or liquidation of the other party.
If either party is involved in any of the events enumerated in (a) through (f)
above, it shall immediately notify the other party of the occurrence of such
event.
4. In case of the termination of this Agreement pursuant to Article 33.2 or
Article 33.3, the party terminating in accordance with this Agreement shall have
an option to purchase the shares of the other party at the book value to be
decided by an internationally recognized accounting firm that is not the
principal accounting firm of either party, if either party so requests, or to
have SPAR China dissolved.
5. Upon termination of this Agreement or SPAR's ceasing to hold at least 50% of
the shares in SPAR China, the License Agreement shall be terminable within two
(2) years thereafter.
6. Upon the termination of this Agreement or if SPAR wishes to sell all or part
of its shares in SPAR China to a third party or XXXX or Xxxx Trading, SPAR is
committed to supply:
(a) its name for two additional years at no cost; and
(b) its software to SPAR China for additional 2 years at the
following cost:
(i) First 12 months: out of pocket costs
(ii) Next 12 months: $3,000 / month + out of pocket costs
and
(c) XXXX or Xxxx Trading will have an option to license the
software for two additional years at a fair market fee to be
mutually agreed to and which both parties will arrive at in
good faith negotiations.
Article 34. Force Majeure
Neither party shall be liable to the other party for failure or delay in the
performance of any of its obligations under this Agreement for the time and to
the extent such failure or delay is caused by riots, civil commotions, wars,
hostilities between nations, governmental laws, orders or regulations,
embargoes, actions by the government or any agency thereof, acts of God, storms,
fires, accidents, strikes, sabotages, explosions, or other similar contingencies
beyond the reasonable control of the
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respective parties.
Article 35. Notices
All notices (including without limitation notices for arbitration), reports and
other communications given or made in accordance with or in connection with this
Agreement shall be made in writing and may be given either by (i) personal
delivery, (ii) overnight delivery or (iii) registered air mail, if properly
posted, with postage fully prepaid, in an envelope properly addressed to the
respective parties at the address set forth below or to such changed address as
may be given by either party to the other by such written notice. Any notice,
etc by personal delivery or overnight delivery or facsimile transmission shall
be deemed to have been given (7) days after the dispatch. In any event, if any
notice, etc. is received other than the regular business hours of the recipient,
it shall be deemed to have been given as of the following business day of the
recipient.
For XXXX,
To: Best Xxxx Investments Holdings Ltd.
c/o Sims Trading Company Ltd.
10/F, DCH Building, 00 Xxx Xxxxxx Xxxx, Xxxxxxx Xxx, Xxxx Xxxx
Attn: Xxxxx Xxxxx, CEO
For SPAR,
To: SPAR International Ltd.
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX, XXX
Attn: Xxxxxx X Xxxxx, Chairman and CEO
Article 36. Assignment
This Agreement and the rights and obligations hereunder are personal to the
parties hereto, and shall not be assigned by either of the parties to any third.
Article 37. Arbitration
All dispute, controversies, or differences which may arise between the parties
hereto, out of or in relation to or in connections with this Agreement, shall be
finally settled by arbitration in Territory in accordance with the rules of the
Territory Commercial Arbitration Association if initiated by SPAR, or in New
York City in accordance with the International Arbitration Rules of the American
Arbitration Association if initiated by XXXX. The arbitration shall be conducted
by a single arbitrator in English.
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The arbitration shall be final and legally binding upon both parties.
Article 38. Implementation
The Shareholders hereby agree, for themselves, their successors, heirs and legal
representatives, to vote at Shareholders' meetings, and to cause the Directors
they nominate to vote at Board meetings and to carry out their duties, to
prepare, execute and deliver or cause to be prepared, executed and delivered
such further instruments and documents, to take such other actions and to cause
the Articles of Incorporation of SPAR China , SPAR China work rules and other
rules and Commercial registry and any other document to be amended or adopted as
may be reasonably required to effect the provisions and intent of this Agreement
and the transactions contemplated hereby.
Article 39. Governing Law
This Agreement and all questions arising out of or under this Agreement shall be
governed by and interpreted in accordance with the laws of The Hong Kong Special
Administrative Region.
Article 40. Waiver
Any failure of either party to enforce, at any time or for any period of time,
any of the provisions of this Agreement shall not be construed as a waiver of
such provisions or of the right of such party thereafter to enforce each and
every such provision.
Article 41. Entire Agreement
This Agreement constitutes the entire and only agreement between the parties
hereto with respect to the subject matter of this Agreement and supersedes any
other commitments, agreements or understandings, written or verbal, that the
parties hereto may have had. No modification, change and amendment of this
Agreement shall be binding upon the parties hereto except by mutual express
consent in writing of subsequent date signed by authorized officer or
representative of each of the parties hereto.
Article 42. Headings
The headings of articles and paragraphs used in this Agreement are inserted for
convenience of reference only and shall not affect the interpretation of the
respective articles and paragraphs of this
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Agreement.
Article 43. Language
This Agreement has been executed in the English.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in two (2) copies by their respective duly authorized officer or representative
as of the day first above written.
SIGNED BY: WITNESSED BY:
Best Xxxx Investments Holdings Ltd.
Signature: /s/ Xxxx Xxxxxx Xxxxxxxx Xxxxx Signature: /s/ Xxxx Xxx
------------------------ --------------------
Name: Xxxx Xxxxxx Xxxxxxxx Xxxxx Name: Xxxx Xxx
Title: Director Company: XXXX Trading
Company Ltd.
Title: Financial Controller
SIGNED BY: WITNESSED BY:
Spar International Ltd.
Signature: /s/ Xxxxxx X Xxxxx Signature:/s/ Xxxxx Xxxxxx
------------------------ --------------------
Name: Xxxxxx X Xxxxx Name: Xxxxx Xxxxxx
Title: Chairman & Chief Executive Officer Company: Notary
Title:
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