EXHIBIT 10.42
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JOINT VENTURE AGREEMENT
The following sets out the terms for the Joint Venture agreement between
ValueFlash (Asia) Limited, a Hong Kong incorporated company with an office at
Units 1702-04, Shui On Centre, 6-8 Harbour Road, Wan Chai, Hong Kong
("VflashAsia") and Sprouts Online Pte Ltd., a Singapore corporation with offices
at 143 Cecil Street, #19-01 GB Building, Singapore 069542 and Prodigy Alliances
Pte Ltd., a Singapore corporation with offices at 10 Anson Road, #10-12
International Plaza, Singapore 079903 (collectively "S&P"). The new Joint
Venture Company will be called ValueFlash Corporation Pte Ltd.
("VflashSingapore").
(a) Vflash Singapore will pay an initial set-up fee for US$500,000 payable as
follows: US$200,000 upon the execution hereof (to take place no later than
September 30th, 2000), US$100,000 by no later than November 30, 2000,
US$100,000 by no later than February 28, 2001 and US$100,000 by no later
than September 1, 2001. Payment is to be made by certified or bank check
(drawn on a Hong Kong bank) or wire transfer of available funds.
(b) Vflash Singapore will pay an annual fee equal to the following in each
respective year:
US$200,000 for 2001
US$200,000 for 2002
US$250,000 for 2003
US$250,000 for 2004
US$300,000 for 2005
US$400,000 for 2006
US$400,000 for 2007
US$500,000 for each year thereafter
Each such annual fee is payable in two equal payments no later than July 10 and
December 30 of each such year. Payment is to be made by certified or bank check
(drawn on a Hong Kong bank) or wire transfer of available funds.
VflashAsia has the right to terminate this Agreement (and retain all payments
from VflashSingapore received prior thereto) in the event of failure on the part
of VflashSingapore to reach any of the criteria set forth above. However, this
Agreement shall be extended if VflashSingapore fulfills the annual payments set
out above.
2. S&P will have the right to become the regional Joint Venture partner for
VflashAsia and its parent companies ("V-Flash") in Singapore, Malaysia and
Indonesia (the "Territory"). VflashSingapore will have the exclusive
rights to provide V-Flash services to all clients located within the
Territory and such other activities, if any, as will be determined by
VflashAsia. Such services will include hosting, graphic design, client
data base management and software maintenance in connection with the
V-Flash technology (collectively, the V-Flash Hosting Services).
VflashSingapore will also have the exclusive right to search and cooperate
with local business partners in the Territory. VflashAsia shall, for a
period of up to 2 months from the date of this Agreement, fully support
VflashSingapore in the delivery of
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the V-Flash Hosting Services so as to assist VflashSingapore in its
startup phase at no extra cost to VflashSingapore.
3. A budget in connection with the start up costs for providing such services
will be developed by VflashSingapore and VflashAsia. It is presently
anticipated that the budget will be no more than US$500,000. VflashAsia
will provide training for VflashSingapore's personnel at the VflashAsia's
offices (each such company will be responsible for the costs incurred by
their employees in connection with such training). VflashSingapore agrees
to employ such employees in connection with the provision of V-Flash
Hosting Services as will have the requisite skills and experience to be
able to perform at high quality once trained. S&P agree that neither they
or VflashSingapore will take any action in connection with the provision
of V-Flash Hosting Services that will result in any actions or disrepute
against V-Flash or any of the companies utilizing such services. Any and
all initial and future capital requirements for VflashSingapore will not
require a contribution by VflashAsia.
4. Thirty (30%) percent of the ownership and profits of VflashSingapore will
be owned by VflashAsia. S&P will not be able to sell, dispose, transfer,
encumber, assign or otherwise alienate any of its seventy (70%) percent
interest in VflashSingapore without the prior written consent of
VflashAsia; provided, however, that S&P will be able to sell, dispose,
etc. any of its interest in VflashSingapore without such consent provided
that such sale, disposition, etc. is not to any competitor of VflashAsia
or any person or entity which might being disrepute to V-Flash (for
example, a pornography site or a criminal) and provided that S&P continue
to manage VflashSingapore after such transaction. VflashAsia's ownership
and profit percentage in VflashSingapore shall not be diluted by any
further issuance or offering by VflashSingapore of equity or debt without
the prior written consent of VflashAsia. VflashSingapore will deliver
Quarterly reports to VflashAsia detailing the gross revenues collected,
expenses paid and incurred, and agreements entered into (all agreements
will be based on business models mutually agreed between S&P and
VflashAsia). Such reports will be delivered no later than the fifteenth
(15) day of the following Quarter, and agreements referred to therein.
Profits shall be payable annually within 30 days after resolution has been
passed by the Board of Directors for each calendar year. Payment is to be
made by certified or bank check (drawn on a Hong Kong bank) or wire
transfer of available funds. S&P hereby grants to VflashAsia the right to
audit the books and records of VflashSingapore, upon seven (7) business
days notice, in order to verify the accuracy and completeness of the
monthly reports.
5. VflashAsia will make available to VflashSingapore upgrades and new
developments in the V-Flash and related technology at no charge
whatsoever.
6. Neither S&P nor VflashSingapore may assign any of their rights to any of
V-flash's competitor or potential rival technology providers, nor to any
person or entity who might bring disrepute to V-flash. (for example, a
pornography site or a criminal). No permitted assignment may be made
unless V-Flash receives no less than five (5) business days prior written
notice of such assignment. The Board of Directors of VflashSingapore shall
consist of four members, one of which Directors shall be appointed by
VflashAsia and three of which Directors shall be appointed by S&P. In the
event that VflashAsia, for any reason,
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enters into receivership and/or liquidation, then VflashAsia will
automatically deliver to VflashSingapore the V-Flash technology, including
but not limited to the software and source code, so that VflashSingapore
could continue to provide the V-Flash Housing Services in the Territory.
7. All notices permitted, required or provided for by this Agreement shall be
made in writing, and shall be deemed adequately delivered if delivered by
hand or by the mailing of the notice in the mail, prepaid certified or
registered mail, return receipt requested, or by priority overnight by a
nationally recognized overnight courier services that regularly maintains
records of its pick-ups and deliveries, or by facsimile followed by one of
the other means of delivery, to the parties at their respective addresses
as stated first above or to any other address designated by a party hereto
by written notice of such address change, with a copy of any and all such
notices to Units 1702-04, Shui On Centre, 6-8 Harbour Road, Wan Chai, Hong
King (facsimile number (852) 2815 1035), Attention: Frederick Chen Vee
Yong. Notices delivered personally shall be deemed communicated as of the
date of actual receipt, mailed notices shall be deemed communicated as of
the date five (5) business days after mailing, couriered or faxed notices
as of the date two (2) business days after delivery to the courier or the
faxing, as appropriate.
8. This Agreement may not be modified or amended, except by an instrument in
writing signed by the party or parties against whom enforcement of any
such modification or amendment is sought.
9. Each of the parties hereto hereby agrees to execute and deliver any
further instruments, certificates and documents as may be reasonably
requested by any other party hereto to carry out the terms and conditions
of this Agreement.
10. Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. Further, to the extent that
any term or provision hereof is deemed invalid, void or otherwise
unenforceable, but may be made enforceable by amendment thereto, the
parties agree that such amendment may be made so that the same shall,
nevertheless, be enforceable to the fullest extent permissible under the
laws and public policies applied in any such jurisdiction in which
enforcement is sought.
11. This Agreement shall be interpreted, construed and performed, and the
rights and liabilities of the parties hereto determined, in accordance
with the laws of Singapore, without regard to any conflicts of law
principles. Any legal action resulting from, arising under, out of or in
connection with, directly or indirectly, this Agreement shall be commenced
in the Courts located in Singapore. All parties to this Agreement hereby
submit themselves to the jurisdiction of any such court, and agree that
service of process on them in any such action, suit or proceeding may be
effected by the means by which notices are to be given under this
Agreement.
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12. The parties hereby agree that any remedy at law for a violation of any of
the provisions of this Agreement is not, in itself, adequate to protect
the parties hereto, and each party therefore shall be entitled to specific
performance or any other mode of injunctive and/or other equitable relief
to enforce his or its rights hereunder or any other relief a court may
award.
13. Any waiver of any of the provisions of this Agreement, or of any
inaccuracy in or non-fulfillment of any of the representations, warranties
or obligations hereunder or contemplated hereby, shall not be effective
unless made in writing and signed by the party against whom the
enforcement of any such waiver is sought. A waiver given in any case shall
only apply with respect to that particular act, omission or breach, and
shall not be effective as to any further or subsequent act, omission or
breach, regardless of whether they be of the same or similar nature.
14. (a) This Agreement sets forth the entire agreement and understanding of
the parties hereto in respect of the subject matter contained herein,
and supersedes all prior agreements, promises, understandings, letters
of intent, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any party thereto or by any
related or unrelated third party.
(b) All exhibits and schedules attached hereto, and all certificates,
documents and other instruments delivered or to be delivered pursuant
to the terms hereof are hereby expressly made a part of this Agreement
as fully as those set forth herein, and all references herein to the
terms of this Agreement, hereunder, herein, hereby or hereto shall be
deemed to refer to this Agreement and to all such writings.
15. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
If you agree to the terms as set forth above, please indicate such agreement by
signing below.
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Dated this 15th day of September, 2000
ACKNOWLEDGED AND AGREED:
ValueFlash (Asia) Ltd.
By:_________________________
Name: Frederick Chen
Title: C.E.O.
ACKNOWLEDGED AND AGREED:
Sprouts Online Ptd Ltd.
By:_________________________
Name: NG Boon Yew
Title: Director
ACKNOWLEDGED AND AGREED:
Prodigy Alliances Pte Ltd.
By:_________________________
Name: Jenny Prawesti
Title: Director
