<PAGE>
As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-89827
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM SB-2
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MYWEB INC.COM
- --------------------------------------------------------------------------------
(Name of Small Business Issuer in Its Charter)
Nevada 3089 88-0207089
- ---------------------------- ------------------------- ---------------------
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation or Industrial Identification
Organization) Classification Code Number) Number)
Block G, Unit G606, Phileo Damansara 1
No. 9, Jalan 16/11
Off Jalan Damansara, 46350 Petaling Jaya
Malaysia
- --------------------------------------------------------------------------------
(Address and Telephone Number of Principal Executive Offices)
Block G, Unit G606, Phileo Damansara 1
No. 9, Jalan 16/11
Off Jalan Damansara, 46350 Petaling Jaya
Malaysia
- --------------------------------------------------------------------------------
(Address of Principal Place of Business)
Alex Jorge, Vice President
MyWeb Inc.com
595 Market Street, Suite 2500
San Francisco, California 94105
(415) 538-3728
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Agent For Service)
Please Send Copies of Communications to:
Michael S. Novins, Esq.
George A. Greenslade, Esq.
Baker & McKenzie
805 Third Avenue
New York, New York 10022
(212) 751-5700
Approximate Date of Commencement of Proposed Sale to the Public: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ______________________________
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
-----------------------------------
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EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form SB-2 of MyWeb
Inc.com is being filed solely to include additional exhibits. Part II of the
Registration Statement and the additional exhibits are included in this
Amendment No. 1 but the prospectus included in the Registration Statement is not
being filed herewith.
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PART II
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 78.751 of the Nevada General Corporation Law, our
Bylaws provide for the indemnification by MyWeb, including suits brought by or
on our behalf, of each director, officer, employee or agent thereof to the
fullest extent permitted by Nevada law.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by MyWeb in connection with the
sale of common stock being registered (all amounts are estimated except the SEC
registration fee ). The selling shareholders will only pay the brokerage
commissions, discounts or other expenses relating to the sale of the common
stock.
SEC registration fee $ 6,510
-------------
Blue sky fees and expenses (including legal fees) $ *
-------------
Printing expenses $ *
-------------
Legal fees and expenses (other than blue sky) $ *
-------------
Accountants' fees and expenses $ *
-------------
Miscellaneous expenses $ *
-------------
Total estimated expenses $ *
-------------
* To be filed by amendment.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
Within the past three years, we have sold securities pursuant to the
following transactions, all of which were exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Act").
- On March 18, 1996, we issued an aggregate of 89,125,000 shares of our
common stock to 14 parties in connection with the merger of
Kremlyovskaya Group, Inc. with and into a wholly-owned subsidiary of
MyWeb. All of such parties were sophisticated investors and the shares
were offered and sold in reliance upon the exemption from registration
provided by Section 4(2) of the Act. On August 15, 1996, the merger
was rescinded and all of the shares were returned to us.
- On December 26, 1996, we granted an option for no consideration to our
wholly-owned subsidiary, AMC International Holdings Ltd., a British
Virgin Islands corporation ("AMC Holdings"), to acquire, for no
consideration, such number of shares of our common stock as may be
required to effect the exchange of preference shares to be issued to
AMC Holdings. On December 31, 1996, AMC Holdings issued 25 preference
shares to IPC Corporation, a publicly traded company in Singapore, in
connection with the acquisition of a wholly-owned subsidiary of IPC
Corporation. The option was granted in reliance upon the exemption
from registration provided in Section 4(2) of the Act.
- On August 1, 1997, we sold a warrant to purchase 1,000,000 shares of
our common stock to Ocean Strategic Holdings, Limited, a Guernsey
corporation, for $50,000 in cash. The
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warrant's exercise price is $.01 per share, provided that both the
exercise price per share and the number of shares issuable upon
exercise of the warrant are subject to adjustment upon the happening
of certain events, except for a reverse stock split in which case no
adjustment is to be made. The warrant is exercisable between August 1,
1998 and August 1, 2001. On February 25, 1999 Ocean Strategic Holdings
exercised its rights under the warrant to purchase 500,000 shares of
our common stock; on April 1, 1999 Ocean Strategic Holdings exercised
its rights under the warrant to purchase an additional 400,000 shares
of our common stock; and on August 4, 1999 Ocean Strategic Holdings
exercised its rights under the warrant to purchase an additional
100,000 shares of our common stock. The warrant and the shares issued
upon the exercise thereof were issued in reliance upon Regulation S
under the Act.
- On February 24, 1999, we issued:
- 8,500,000 shares of our common stock to 20 parties in connection
with the acquisition of all of the capital stock of TecnoChannel
Technologies Sdn Bhd, a Malaysian corporation, and
- 440,000 shares of common stock to GEM Ventures Ltd., an
investment banking firm, in consideration of their services as
financial advisor to the company with regard to the acquisition
of Tecnochannel Technologies. All of the former shareholders of
TecnoChannel Technologies and GEM Ventures are accredited
investors and the shares were issued in reliance upon the
exemption from registration provided in Section 4(2) of the Act
and Regulation D promulgated thereunder.
- In May 1999 we issued 526,250 shares of our common stock to 13
accredited investors in a private placement for an aggregate of
$3,780,000. The shares were issued in reliance upon the exemption from
registration provided in Section 4(2) of the Act and Regulation D
thereunder.
ITEM 27. EXHIBITS.
See the Exhibit Index filed herewith.
ITEM 28. UNDERTAKINGS.
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales of securities are
being made, a post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in
the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
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(iii) include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act of 1933 (the "Act"),
each post-effective amendment shall be treated as a new registration statement
of the securities offered, and the offering of the securities at that time shall
be treated as the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling MyWeb, MyWeb has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements of filing on Form SB-2 and authorized this Amendment No.1 to the
Registration Statement to be signed on its behalf by the undersigned, in Kuala
Lumpur, Malaysia on this 11th day of November, 1999.
MYWEB INC.COM
By: /s/ T.S. Wong
----------------------------------------
T.S. Wong
President and Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
/s/ T.S. Wong Director, President and November 11, 1999
- --------------------- Chief Executive Officer
T. S. Wong
* Director and Chief November 11, 1999
- -------------------- Financial Officer
Victor Ng
* /s/ T.S. Wong
- --------------------
by T.S. Wong as attorney in fact
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EXHIBIT LIST
2.1 Plan of Reorganization (incorporated by reference to the Report on
Form 10-SB of Asia Media Communications, Ltd., filed with the
Commission on February 23, 1994)
2.2 Acquisition Agreement dated February 24, 1999, by and among Asia Media
Communications, Ltd. and the stockholders of TecnoChannel Technologies
Sdn Bhd (incorporated by reference to the Current Report on Form 8-K
of Asia Media Communications, Ltd. (Commission File No. 0-23462),
filed with the Commission on March 11, 1999)
3.1(a) Articles of Incorporation of Sperzel-NV, Inc. (incorporated by
reference to the Report on Form 10-SB of Asia Media Communications,
Ltd., filed with the Commission on February 23, 1994)
3.1(b) Certificate Amending Articles of Incorporation of Sperzel-NV, Inc.
(incorporated by reference to the Report on Form 10-SB of Asia Media
Communications, Ltd., filed with the Commission on February 23, 1994)
3.1(c) Certificate of Amendment of Articles of Incorporation of Sperzel-NV,
Inc. (incorporated by reference to the Report on Form 10-SB of Asia
Media Communications, Ltd., filed with the Commission on February 23,
1994)
3.1(d) Certificate of Amendment of Articles of Incorporation of Asia Media
Communications, Ltd. (incorporated by reference to the Registration
Statement on Form S-8 of MyWeb Inc.com (Registration No. 333-81823),
filed with the Commission on June 29, 1999)
*3.1(e) Certificate of Amendment of Articles of Incorporation of Asia Media
Communications, Ltd.
*3.1(f) Restated Articles of Incorporation of MyWeb Inc.com
3.2 Registrant's By-laws (incorporated by reference to the Report on Form
10-SB of Asia Media Communications, Ltd., filed with the Commission on
February 23, 1994)
**5.1 Opinion of Baker & McKenzie
10.1 Agreement and Plan of Merger, dated March 18, 1996, by and among Asia
Media Communications, Ltd., AMC Merger Co., Inc., Kremlyovskaya Group,
Inc., Riccardo Franchini and Richard Gaspar (incorporated by reference
to the Current Report on Form 8-K of Asia Media Communications
(Commission File No. 0-23462), filed with the Commission on April 2,
1996)
10.2 Rescission Agreement, dated as of August 15, 1996, by and among Asia
Media Communications, Ltd., Kremlyovskaya Group, Inc., Kremlyovskaya
Group NV, Riccardo Franchini, Richard Gaspar, Yakov Tillman, Tadeus
Tonley, Valentin Kassatkine, Guerman Liberman, Youri Bykhovski, Wengen
Investments Ltd., Redwatch Investments Inc. SA, Safine A.G.,
Wallflower Investments Inc., SA, Able Investments Ltd., Whitehall
Investments Company Inc. and Merton Trustees Limited (incorporated by
reference to the Current Report on Form 8-K of Asia Media
Communications, Ltd. (Commission File No. 0-23462), filed with the
Commission on October 15, 1996)
10.3 Consulting Agreement, dated as of October 30, 1996, between Asia Media
Communications, Ltd. and Ian Rice (incorporated by reference to the
Current Report on Form 8-K of Asia Media Communications, Ltd.
(Commission File No. 0-23462), filed with the Commission on November
7, 1996)
10.4 Option Agreement, dated as of December 26, 1996, between Asia Media
Communications, Ltd. and AMC International Holdings, Ltd.
(incorporated by reference to the Report on Form 10-KSB of Asia
II-1
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Media Communications, Ltd. (Commission File No. 0-23462) for the
fiscal year ended December 31, 1996, filed with the Commission on
December 30, 1998)
10.5 Written Consent of the Sole Director of AMC International Holdings,
Ltd., dated as of December 27, 1996 (incorporated by reference to the
Report on Form 10-KSB of Asia Media Communications, Ltd. (Commission
File No. 0-23462) for the fiscal year ended December 31, 1996, filed
with the Commission on December 30, 1998)
10.6 Share Acquisition Agreement, dated December 1996, among IPC
Corporation, Asia Media Communications, Ltd. and AMC International
Holdings, Ltd. (incorporated by reference to the Report on Form 10-KSB
of Asia Media Communications, Ltd. (Commission File No. 0-23462) for
the fiscal year ended December 31, 1996, filed with the Commission on
December 30, 1998)
10.7 Letter Agreement, dated April 1, 1997, between AMC International
Holdings, Ltd. and IPC Corporation (incorporated by reference to the
Report on Form 10-KSB of Asia Media Communications, Ltd. (Commission
File No. 0-23462) for the fiscal year ended December 31, 1996, filed
with the Commission on December 30, 1998)
10.8 Warrant, dated August 1, 1997, to purchase 1,000,000 shares of the
common stock of Asia Media Communications, Ltd. issued to Ocean
Strategic Holdings Limited (incorporated by reference to the Report on
Form 10-KSB of Asia Media Communications, Ltd. (Commission File No.
0-23462) for the fiscal year ended December 31, 1996, filed with the
Commission on December 30, 1998)
10.9 Share Purchase Agreement, dated September 1, 1997, by and between
Parthanon Investment Corporation and Asia Media Communications, Ltd.
(incorporated by reference to the Report on Form 10-KSB of Asia Media
Communications, Ltd. (Commission File No. 0-23462) for the fiscal year
ended December 31, 1996, filed with the Commission on December 30,
1998)
10.10 Acquisition Agreement, dated February 24, 1999, by and among Asia
Media Communications, Ltd., TecnoChannel Technologies Sdn Bhd, all
stockholders of TecnoChannel Technologies Sdn Bhd and GEM Ventures
Ltd. (incorporated by reference to the Current Report on Form 8-K of
Asia Media Communications, Ltd. (Commission File No. 0-23462), filed
with the Commission on March 11, 1999)
10.11 1999 Non-Qualified Stock Option Plan of MyWeb Inc.com (incorporated by
reference to the Registration Statement on Form S-8 of MyWeb Inc.com
(Registration No. 333-81823), filed with the Commission on June 29,
1999)
10.12 Asia Media Communications, Inc. 1999 Incentive Program (incorporated
by reference to the Registration Statement on Form S-8 of Asia Media
Communications, Ltd. (Registration No. 333-76289), filed with the
Commission on April 14, 1999)
*10.13 Employment Agreement, dated April 2, 1997, between T.S. Wong and
TecnoChannel Sdn Bhd
*10.14 Tenancy Agreement, dated April 28, 1999, by and between Selekta Bakti
Sdn Bhd and TecnoChannel Technologies Sdn Bhd
*10.15 Tenancy Agreement, dated April 28, 1999, by and between Woi Seen Chin
Enterprises Sdn Bhd and TecnoChannel Technologies Sdn Bhd
*10.16 Rental of Storage Space Agreement, dated March 16, 1999, by and
between Woo Ah Lek and TecnoChannel Technologies Sdn Bhd
*10.17 Office Service Agreement, dated June 3, 1999, by and between
Alliance/Interoffice San Francisco, LLC and MyWeb Inc.com
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*10.18 Lease Agreement, dated April 29, 1999, by and between MyWeb Asia
Pte.Ltd. and Lee Wing Han
+10.19 Binary License and Redistribution Agreement, dated March 25, 1999, by
and between Sun Microsystems, Inc. and Tecnochannel Sdn Bhd
+10.20 License Agreement, dated January 4, 1999, by and between TecnoChannel
Technologies Sdn Bhd and NetChina
+10.21 Memorandum of Understanding, dated March 15, 1999, by and between
MyWeb Inc.com and Masslink
**10.22 Agreement, dated June 16, 1999, by and between MyWeb Inc.com and Xin
Hua Organization
+10.23 Joint Venture Agreement, dated July 12, 1999, by and between MyWeb
Inc.com and Qingdao Haier Computer Co., Ltd.
+10.24 Memorandum of Understanding, dated April 8, 1999, by and between MyWeb
Inc.com and Lang Chao Computer Co
+10.25 Service Agreement, dated January 2, 1999, by and between TecnoChannel
Technologies Sdn Bhd and Unilever (Malaysia) Holdings Sdn Bhd
+10.26 Agreement, dated December 8, 1997, by and between TecnoChannel Sdn Bhd
and Philips Consumer Electronics B.V.
+10.27 Joint Venture Agreement, dated April 12, 1999, by and between Asia
Media Communications, Ltd. and Beijing Telecom Communication Ltd
+10.28 License Agreement, dated May 4, 1999, by and between TecnoChannel
Technologies Sdn Bhd and HKNet Co Ltd
+10.29 Memorandum of Understanding, dated May 19, 1999, by and between MyWeb
Inc.com and China Sci-Technologies International Trust & Investment
Co. Ltd
**10.30 Lease Agreement, dated June 2, 1999, by and between MyWeb Inc.com and
Beijing Chongwen-New World Properties Development Co. Ltd.
+10.31 Letter of Agreement, dated June 22, 1999, by and between MyWeb Inc.com
and Ogilvy Public Relations Worldwide
**10.32 Cooperation Agreement, dated May 18, 1999, between SOYEA Ltd and MyWeb
Inc.com
+10.33 Agreement, dated June 28, 1999, between Ncore Technology and
TecnoChannel Technologies Sdn Bhd
**10.34 Letter of Intent, dated October 25, 1999, between Infosto Information
Technology (Beijing) Co., Ltd. and MyWeb Internet System (Beijing)
Co., Ltd
+10.35 Agreement, dated October 23, 1999, between TVSN China (Holdings) Ltd.
and MyWeb Inc.com
**10.36 Agreement between Beijing Yan Jian Co. Ltd. and MyWeb Inc.com
**10.37 Agreement between Beijing Goyoyo Technology Dev. Ltd. and MyWeb
Inc.com
**10.38 Agreement between Shenzhen Property Systems Co. Ltd. and MyWeb Inc.com
**10.39 Agreement between www.158.com.ch and MyWeb Inc.com
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10.40 Employment Agreement, dated May 1, 1999, between Danny Toe Teow Teck
and MyWeb Inc.com
+10.41 Media Relations Cooperation Agreement, dated February 23, 1999,
between Merger Communications, Inc. and Asia Media Communications,
Ltd.
16 Letter, dated December 28, 1998 from Albright, Persing & Associates,
Ltd., our former principal accountants, to the Securities and Exchange
Commission pursuant to Item 304(a)(3) of Regulation S-B (incorporated
by reference to the Report on Form 10-KSB of Asia Media
Communications, Ltd. (Commission File No. 0-23462) for the fiscal year
ended December 31, 1996, filed with the Commission on December 30,
1998)
*21 Subsidiaries of the Registrant
*23.1 Consent of Wlosek & Braverman, L.L.C.
*23.2 Consent of Arthur Andersen & Co
23.3 Consent of Baker & McKenzie (included in Exhibit 5.1)
- ---------------
* Previously filed
** To be filed by amendment
+ Portions of these exhibits have been omitted pursuant to a request for
confidential treatment
II-4
<PAGE>
TECNOCHANNEL
BINARY LICENSE
AND
REDISTRIBUTION AGREEMENT
This Binary License and Redistribution Agreement (the "License") is
entered into this 25th day of March, 1999 (the "Effective Date") between Sun
Microsystems, Inc. ("Sun") with its principal place of business at 901 san
Antonio Road, Palo Alto, California 94303 and TecnoChannel Sdn. Bhd., a
corporation with its principal place of business at Incubator 2,Lot G3,
Technology park Malaysia, Lebuhraya Puchong-Sungei Besi, Bukit Jalil, 57000
Kuala Lumpur ("Licensee").
RECITALS
WHEREAS Sun wishes to license certain of its Java(TM) technology in binary code
form for distribution as part of Licensee's Java related products, while
maintaining compatibility among Java language based products; and
WHEREAS Licensee wishes to incorporate the Java(TM) technology into Licensee's
Java related products for distribution to customers;
NOW THEREFORE, Sun and Licensee enter into this License on the following terms.
1.0 DEFINITIONS
1.1 "Field of Use" means the relevant market segments and/or product areas
identified in Exhibit A.
1.2 "Licensee's Product" means Licensee's product identified in Exhibit A into
which Licensee will incorporate the Software. A "Product" must: (i) have a
principal purpose which is substantially different from that of the stand-alone
Software; (ii) represent a significant functional and value enhancement to the
Software; and (iii) operate in conjunction with the Software. A current list of
Product(s) is identified in Exhibit A, which may be amended by Licensee to add
Product(s) from time to time.
1.3 "Per Unit Royalties" means the royalty rate specified in Exhibit C for each
copy of Licensee's Product distributed by or for Licensee which incorporates the
Software or each licensed user of Licensee's Product to the extent Licensee
distributes a single copy of Licensee's Product for use by multiple users.
1.2 "Software" means the Java(TM) software product in binary code form
identified in Exhibit A (collectively "Exhibit A") and any Upgrades.
1.5 "Upgrade" means bug fixes, modifications, variations, and enhancements, to
the extent included in a patch or dot release of the Software which Sun
generally licenses as part of the Software during the term of this License,
unless otherwise specified in Exhibit A.
2. LICENSE TO DISTRIBUTE
Subject to the terms and conditions contained in this License, Sun hereby grants
to Licensee, solely for the Field(s) of Use, the right to reproduce and
distribute the Software when incorporated as part of Licensee's Product,
provided that Licensee:
(i) does not remove or alter any proprietary legends or notices contained
in the Software;
(ii) enters into a signed agreement with its distributors on terms
substantially similar to those contained herein; and
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(iii) requires an end user license agreement including in substance, the
provisions of Sections 3, 11 and 13, as well as any additional Software
specific terms and conditions specified in Exhibit A.
3. RESTRICTIONS.
Software is confidential copyrighted information of sun and title to all copies
is retained by Sun and/or its licensors. Licensee shall not decompile,
disassemble, decrypt, extract, or otherwise reverse engineer Software. Software
may not be leased or assigned in whole or in part. Software is not designed or
intended for use in on-line control of aircraft, air traffic, aircraft
navigation, or aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. Sun disclaims any express or
implied warranty of fitness for such uses.
4. MAINTENANCE AND SUPPORT.
This License does not include maintenance and support of Software by Sun.
Licensee shall be solely responsible for providing maintenance and support for
its distributors and end users.
5. ROYALTY PAYMENTS, TAXES AND RECORDS.
5.1 Unless otherwise specified in Exhibit C, payment of Per Unit Royalties
shall be made quarterly, shall be due thirty (30) days following the end of the
calendar quarter to which they relate and shall be submitted with a written
statement documenting the basis for the royalty calculation.
5.2 All payments required by this License shall be made in United States
dollars, are exclusive of taxes, and Licensee agrees to bear and be responsible
for the payment of all such taxes, including, but not limited to, all sales,
use, rental receipt, personal property or other taxes and their equivalents
which may be levied or assessed in connection with this License (excluding only
taxes based on Sun's net income).
5.3 Licensee shall maintain accounts books and records consistent with
Generally Accepted Accounting Principles appropriate to Licensee's domicile, as
may be in effect from time to time, sufficient to allow the correctness of the
royalties required to be paid pursuant to this License to be determined. Sun may
have Licensee's accounts audited by an independent auditor, once each calendar
year upon reasonable notice (unless discrepancies are discovered in excess of
five percent (5%) threshold set forth in Section 5.4, in which case two
consecutive quarters per year may be audited).
5.4 Any discrepancy revealed by Sun's audit shall be addressed by an adjustment
in the amount due in the quarter in which the discrepancy is discovered. If the
audit reveals an underpayment of more than five percent (5%), Licensee shall
pay: (i) interest on the unpaid portion at the maximum rate permitted by law;
and (ii) all costs of the audit.
6. TRADEMARKS AND LOGOS
Unless otherwise authorized in Exhibit A, this License does not authorize
Licensee to use any Sun name, trademark or logo. Licensee acknowledges that Sun
owns the Java trademark and all Java-related trademarks, logos and icons
including the Coffee Cup and Duke ("Java Marks") and agrees to: (i) comply with
the Java Trademark Guidelines at http://java.sun.com/trademarks.html; (ii) not
do anything harmful to or inconsistent with Sun's rights in the Java Marks; and
(iii) assist Sun in protecting those rights, including assigning to Sun any
rights acquired by Licensee in any Java Mark.
7. DISCLAIMER OF WARRANTY.
Sun represents and warrants that the media on which the Software is recorded, if
any, will be free from defects in materials and workmanship for a period of
ninety (90) days after delivery. Sun's sole liability with respect to breach of
this warranty is to replace the defective media. Except as expressly provided in
this Section 7, Software is provided "AS IS", without a warranty of any kind.
ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY
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OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE
HEREBY EXCLUDED.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR
DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT
OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. LICENSEE'S SOLE AND EXCLUSIVE REMEDY ARISING FROM
ANY BREACH OF THIS AGREEMENT BY SUN SHALL BE LIMITED TO A REFUND OF THE PER UNIT
ROYALTIES PAID TO SUN DIRECTLY RELATING TO THE NUMBER OF UNITS OF LICENSEE'S
PRODUCT THAT LICENSEE HAS TO REFUND TO LIECENSEE'S CUSTOMERS AS A RESULT OF SUCH
BREACH, IF ANY.
9.0 LIMITED INDEMNITY
9.1 Sun will defend, at its expense, any legal proceeding brought against
Licensee, to the extent it is based on a claim that use of the Software is a
misappropriation of a third party trade secret or an infringement of a third
party copyright in a country that is a signatory of the Berne Convention, and
will pay all damages awarded by a court of competent jurisdiction attributable
to such claim, provided that Licensee: (i) provides notice of the claim promptly
to Sun; (ii) gives Sun sole control of the defense and settlement of the claim;
(iii) provides to Sun, at Sun's expense, all available information, assistance
and authority to defend; and (iv) has not compromised or settled such proceeding
without Sun's prior written consent.
9.2 Should the Software or any portion thereof become, or in Sun's opinion
likely to become, the subject of a claim of infringement or misappropriation for
which indemnity is provided under Section 9.1, Sun shall, as Licensee's sole and
exclusive remedy, elect to: (i) obtain for Licensee the right to use the
Software; (ii) replace or modify the software so that it becomes non-infringing;
or (iii) if neither (i) nor (ii) are commercially practical, accept the return
of the Software and grant Licensee a refund on any prepaid royalties, for which
Licensee is unable to distribute Licensee's Product.
9.3 Sun shall have no liability for any infringement or claim which results
from: (i) use of other than a current unaltered version of the Software, if such
version was made available to Licensee; or (ii) use of the Software in
combination with any non-Sun-provided equipment, software or data if the
Software would not otherwise infringe.
9.4 THIS SECTION 9.0 STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY AS A RESULT OF USE, LICENSE, OR SALE OF THE SOFTWARE.
9.5 Except for claims for which Sun is obligated to indemnify Licensee under
Section 9.1, Licensee shall defend, at Licensee's expense, any and all claims
brought against Sun by third parties, and shall pay all damages awarded by a
court of competent jurisdiction, or such settlement amount negotiated by
Licensee, arising out of or in connection with Licensee's use, reproduction or
distribution of the Software or Licensee's Product. Licensee's obligation to
provide indemnification under this Section 9.5 shall arise provided that Sun:
(i) provides notice of the claim promptly to Licensee; (ii) gives Licensee sole
control of the defense and settlement of the claim; (iii) provides to Licensee,
at Licensee's expense, all available information, assistance and authority to
defend; and (iv) has not compromised or settled such proceeding without
Licensee's prior written consent.
10. TERM AND TERMINATION
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<PAGE>
10.1 This License shall have a term of twenty four (24) months from the
Effective Date unless otherwise specified in Exhibit C, provided that either
party may terminate this License in the event the other party is in material
breach and has not cured such breach within thirty (30) days after written
notice by the other party and an opportunity to cure within such thirty days, or
upon any action for infringement of any patent relating to the Software by
Licensee against Sun or any Sun" licensees of the Software.
10.2 Unless otherwise specified in Exhibit A, upon expiration of this License,
Licensee shall be authorized to distribute Licensee Product(s) containing the
version of the Software incorporated therein at the time of expiration, subject
to Licensee's continued compliance with the terms of this License, including
payment of Per Unit Royalties. All other rights of Licensee shall terminate upon
expiration or termination of this License except that all end user licenses
issued for Licensee's Products prior to such expiration or termination shall
remain in full force and effect according to their terms.
10.3 Neither party shall have the right tot recover damages, nor to
indemnification of any nature, whether by way of lost profits, expenditures for
promotion, payment for goodwill or otherwise made in connection with the
business contemplated by this Agreement, due to the expiration or permitted or
lawful termination of this Agreement. EACH PARTY WAIVES AND RELEASES THE OTHER
FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS
RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.
11. EXPORT REGULATIONS.
All Software, including technical data delivered under this License is subject
to U.S. export control laws and may be subject to export or import regulations
in other countries. Licensee agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software.
12. LICENSEE ADVERTISING SERVICES.
12.1 As sole and exclusive consideration for the JavaOS for Consumers Getting
Started Kit license granted herein and as set forth in Attachment C, Section D,
Licensee will provide Sun with advertising services related to the MyWeb set top
box and to any successor Licensee Product that contains, at a minimum,
substantially similar features and functionality as the MyWeb set top box. Such
services will be provided for up to two (2) years from the general commercial
availability of such Licensee Product, or for a shorter period of time that the
parties may agree to in Sun's marketing program described in Section 12.2.
12.2 Upon Sun's reasonable request, Licensee will help Sun create a marketing
program for certain sun products, services and technologies to be delivered
using the MyWeb set top box or successor Licensee Product. Sun shall have sole
and absolute discretion in defining the form, format and content of any
advertising or promotional materials. Upon the completion of such marketing
program, Licensee will broadcast, display, execute and perform the advertising
materials provided by Sun on the Myweb set top box or successor Licensee Product
in accordance with the schedule and other provisions of the Sun marketing
program. Licensee may not subcontract, transfer or assign any of its obligations
related to the advertising services described herein without obtaining Sun's
prior written approval.
12.3 Licensee may not modify or adapt Sun's advertising materials without Sun's
prior written approval. Until released tot he general public in accordance with
the marketing plan, Sun's advertising materials shall be considered Sun
Confidential Information. Sun will retain all right, title and ownership in the
advertising materials created by or for Sun and provided to Licensee pursuant to
this Agreement and Licensee hereby agrees not to remove any copyright or other
propriety right notices
4
<PAGE>
found in Sun's advertising materials. Licensee agrees that it does not obtain
any rights in the Sun advertising materials by virtue of this agreement or
otherwise.
12.4 Sun, in its sole and absolute discretion, may terminate Licensee's
advertising services at any time by providing Licensee with thirty (30) days
prior written notice. Upon such termination, the consideration set out in
Section 12.1 will be deemed to have been satisfied by Licensee or the parties
may come to a mutually agreeable settlement of the consideration amount still
owed to Sun.
12.5 Licensee warrants that the advertising services provided hereunder shall be
of a quality level that is generally acceptable in the advertising industry.
This Agreement is not intended to create a relationship such as a partnership,
joint venture, agency or employment relationship. Neither party may act in a
manner that expresses or implies a relationship other than that of an
independent contractor, nor bind the other party. Licensee personnel shall be
employees of Licensee, and not of Sun, and Licensee shall be solely liable for
the conduct of such personnel and their compliance with all provisions of this
Agreement. Licensee agrees to indemnify and hold harmless Sun from and against
all claims or actions brought by any Licensee personnel or government agency
with respect to a claim that such Licensee personnel is an employee of Sun, and
from any and all damages, losses, liabilities and expenses, including reasonable
attorneys' fees and costs of litigation, arising out of or resulting therefrom.
13. RESTRICTED RIGHTS.
The use, duplication or disclosure by the US Government of technical data,
computer software and documentation, as specified in the license under which the
computer software was produced, is subject to the restrictions as set forth in
FAR 52.227-14(g) (2), FAR 52.227-19, DFARS 252.227-7015(b), and DFARS
227.7202-3(a) as applicable. Licensee may not provide Software or technical data
to any third party, including the US Government, unless such third party accepts
the same restrictions. Licensee is responsible for ensuring that proper notice
is given to all such third parties and that the Software and technical data are
properly marked.
14. GOVERNING LAW.
Any action related to this License will be governed by California law and
controlling U.S. federal law. No choice of law rules of any jurisdiction will
apply.
15. SEVERABILITY.
If any of the above provisions are held to be in violation of applicable law,
void, or enforceable in any jurisdiction, then such provisions are hereby waived
or amended to the extent necessary for the License to be otherwise enforceable
in such jurisdiction. However, if sun's opinion deletion or amendment of any
provisions of the License by operation of this paragraph significantly
compromises the rights or increases the liabilities of Sun or its licensors, Sun
reserves the right to terminate the License.
16. NOTICES.
All notices must be in writing and delivered either in person or by means
evidenced by a delivery receipt, to the persons signing this License at their
respective addresses specified in the first paragraph of this License. Such
notice will be effective upon receipt.
17. MARKETING ANNOUNCEMENT.
Licensee hereby authorizes Sun to include Licensee in a published list of
licensees of Software.
18. ASSIGNMENT AND CHANGE IN CONTROL.
This License may not be assigned or transferred by either party without the
prior written consent of the other party except that Sun may assign this License
to a majority-owned subsidiary.
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<PAGE>
19. DISCLAIMER OF AGENCY.
Licensee is not authorized to make any representation or warranty on behalf of
Sun to its end users or third parties. The relationship created hereby is that
of licensor and licensee and the parties hereby acknowledge and agree that
nothing herein shall be deemed to constitute Licensee as a franchisee of Sun.
licensee hereby waives the benefit of any state or federal statutes dealing with
the establishment and regulation of the franchises.
20. CONSTRUCTION.
This License has been negotiated by Sun and Licensee and by their respective
counsel. This License will be fairly interpreted in accordance with its terms
and without any strict construction in favor of or against either party.
21. COMPLETE UNDERSTANDING.
This License, including Exhibits A-D attached hereto, constitutes the final,
complete and exclusive agreement and understanding between the parties with
respect to its subject matter and supercedes all previous communications,
representations or agreements, whether written or oral, with respect to the
subject matter hereof. No terms of any purchase order or similar document issued
by Licensee shall be deemed to add to, delete or modify the terms and conditions
of this License. This License may not be modified, amended, rescinded, canceled
or waived, in whole or part, except by a written instrument signed by the
parties.
IN WITNESS WHEREOF, the parties have caused this License to be executed by their
duly authorized representatives.
Sun Microsystems, Inc. Licensee
TecnoChannel Technologies
By: /s/ Jay Puri By: /s/ T.S. Wong
----------------------- -------------------------
Name: Jay Puri Name: T.S. Wong
--------------------- -----------------------
(Print or Type) (Print or Type)
Title: VP, WW Sales Title: CEO
-------------------- ----------------------
Date: 3/25/99 Date:
--------------------- -----------------------
6
<PAGE>
EXHIBIT A
LICENSEE PRODUCT, ROYALTY AND SOFTWARE
The Software licensed hereunder are those initialed by both parties below:
Exhibit Software Licensee Sun
A-4: JavaOS for Consumers v1.0 /s/ illegible /s/ illegible
Personal Applications Browser v1.0 ------------- -------------
and free upgrade to JavaOS for consumers
v3.0
7
<PAGE>
ATTACHMENT B
LICENSED SOFTWARE AND SUPPLEMENT TERMS FOR
JAVAOS FOR CONSUMERS AND PERSONAL APPLICATIONS BROWSER
The supplement terms contained in this Attachment B are in additions to the
terms of the Agreement. In the event of a conflict of terms between the
Agreement and this Attachment B, this Attachment B shall govern. The parties
agree as follows:
I. LICENSED SOFTWARE
A. JavaOS for Consumers 1.0 consisting of:
(a) OS binaries supplied on CD_ROM
(b) OS documentation package supplied on CD-ROM
(c) Five right-to-use licenses for JavaOS for Consumers Developer Package
Documentation 1.0 supplied on CD-ROM.
(d) Two months free developer level technical support.
(e) [***] worth of prepaid royalties, which are included in the
pre-payment amounts described in Attachment C.
(f) free upgrade to the 3.0 version of this package when and if it becomes
available.
(g) Corporate wide usage rights.
(h) Licensee will have access to a web site which will provide driver source
code and board specific source code for the hardware supported by Sun
Microsystems.
B. Personal Applications Browser v. 1.0
1. Files:
a) All the files from the following packages:
- handlers
- ib
b) images for the default graphical user interface
c) configuration files for properties
d) configuration files for parser
e) binary distribution libraries
2. Personal Applications Browser Developer Documentation
II. LICENSEE PRODUCT. Licensee Product is limited to the following:
(a) web set top boxes
III. ADDITIONAL TERMS AND CONDITIONS FOR JAVAOS FOR CONSUMERS:
(a) Limitations on Derivative Works. Derivative works of JavaOS for
consumers 1.0 and 3.0 are limited to modifications to the operating
systems. Drivers that integrate control systems or field busses and
real-time and Personal Java applications developed independently to
published APIs by Licensee, that do not incorporate any Sun
Intellectual Property Rights, will not be considered derivative works.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
8
<PAGE>
(b) Compliance Testing. All derivative works that are to use any Java
branding must pass the PJCK compliance suite. Sun will provide
compliance testing free of charge for vendors without access to the
PJCK compliance suite for derivative works of 1.0 and 3.0 of this
package.
(c) Installation of Code. OS binaries may only be installed on a maximum
of five (5) development systems simultaneously.
(d) Upgrade Requirement. Licensee must upgrade to the 3.0 version of
JavaOS for Consumers Developer Package within sixty (60) days of its
being made available or Sun will not be obligate to continue support.
(e) This package cannot be sold in conjunction with JavaOS for Consumers
1.0 Internal Use Only Package.
(f) Platform Change Option. Within six (6) months from the Effective Date,
Licensee may notify sun in writing that it desires to change the
platform for the version of JavaOS for Consumers that Customers has at
that time. Provided that, the new platform is one for which JavaOS for
Consumers is generally commercially available, Sun will provide to
Licensee version of JavaOS for the platform identified by Licensee
shortly thereafter. Upon receipt of the new platform version of JavaOS
for Consumers, such new platform version shall be considered to be the
Software for purposes of this Agreement and any related Sun support
obligations to Licensee.
IV. ADDITIONAL TERMS AND CONDITIONS FOR PERSONAL APPLICATIONS BROWSER
A. COMPATIBILITY REQUIREMENTS
1. COMPATIBILITY. Products incorporating Personal Applications Browser
technology must be designed to function with the most current pJava Application
environment available from Sun one hundred and twenty (120) days prior to first
production shipment of Licensee's Product.
2. PERSONAL APPLICATIONS BROWSER INTERFACE. Sun makes no representations or
warranties that the Personal Applications Browser interfaces existing as of the
Effective Date will remain unchanged thereafter.
B. COMPATIBILITY LOGO: NONE
C. END USER LICENSE TERMS
For Products distributed pursuant to a software license agreement to end users,
Licensee shall include the following terms and conditions. Licensee shall
substitute Licensee's name in place of Sun as appropriate.
1. PERSONAL APPLICATIONS BROWSER INTERFACE. Licensee shall include the text as
specified in Section IV.2. above.
2. RESTRICTIONS. Software is confidential copyrighted information of Sun and
title to all copies are retained by Sun and/or its licensors. Customer shall not
modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer
software.
3. RESTRICTED RIGHTS. Use, duplication or disclosure by the United States
government is subject to the restrictions as set forth in the Rights in
Technical Data and Computer Software Clauses in DFARS 252.227-7013(c) (1) (ii)
and FAR 52.227-19(c) (2) as applicable.
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<PAGE>
ATTACHMENT C
PAYMENTS
The supplemental terms contained in this Attachment C are in addition to the
terms of the Agreement. In the event of a conflict of terms between the
Agreement and this Attachment C, this Attachment C shall govern. The parties
agree as follows:
I. PRE-PAID ROYALTIES AND LICENSE FEES:
A. JavaOS for Consumers
Licensee will make non-refundable royalty pre-payments which will cover and
apply to the distribution of the number of Software units specified below during
each 12-month period from the Effective Date:
1. The first year pre-payment amount and schedule shall be:
Year Units Pre-Payment
1 [***] US$ [***]
US$ [***] will become due on the Effective Date and payable no
later than thirty (30) days from the Effective Date.
Sun will invoice Licensee for US$ [***] per quarter for the three
remaining quarters of the year.
2. The second year pre-payment amount and schedule shall be:
Year Units Pre-Payment
2 [***] US$ [***]
US$ [***] will become due on the first anniversary of the
Effective Date and payable no later than thirty (30) days thereafter.
Sun will invoice Licensee for US$ [***] per quarter for the three
remaining quarters of the second year.
B. Personal Applications Browser
Licensee will make non-refundable royalty pre-payments which will cover and
apply to the distribution of the number of Software units specified below during
each 12-month period from the Effective Date:
1. The first year pre-payment amount and schedule shall be:
Year Units Pre-Payment
1 [***] US$ [***]
US$ [***] will become due on the Effective Date and payable no
later than thirty (30) days from the Effective Date. Sun will invoice
Licensee for US$ [***] per quarter for the three remaining
quarters of the year.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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<PAGE>
2. The second year pre-payment amount and schedule shall be:
Year Units Pre-Payment
2 [***] US$ [***]
US$ [***] will become due on the first anniversary of the
Effective Date and payable no later than thirty (30) days thereafter.
Sun will invoice Licensee for US$ [***] per quarter for the three
remaining quarters of the second year.
C. After such prepaid amounts have been fully depleted, even if such depletion
takes place prior to the next pre-payment date, Licensee shall pay Sun
per-unit royalties for the software as set forth in this Exhibit C.
D. JavaOS for Consumers 1.0 Getting Started Kit (X86 platform): valued at
US$ [***] is provided to Licensee in consideration for the
advertising services to be provided pursuant to Section 12 of the
Agreement.
II. PER-UNIT ROYALTIES.
The applicable per unit royalty is set forth below.
PER UNIT ROYALTY
----------------
JavaOS for Consumers $ [***]
Personal Applications Browser $ [***]
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
11
<PAGE>
ATTACHMENT D
BINARY CODE LICENSE AGREEMENT
READ THE TERMS OF THIS AGREEMENT AND ANY PROVIDED SUPPLEMENTAL LICENSE TERMS
(COLLECTIVELY "AGREEMENT") CAREFULLY BEFORE OPENING THE SOFTWARE MEDIA PACKAGE,
YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SOFTWARE
ELECTRONICALLY INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT"
BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS,
PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR,
IF THE SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE
END OF THIS AGREEMENT.
1. LICENSE TO USE. Sun grants to you a non-exclusive and non-transferable
license for the internal use only of the accompanying software and documentation
and any error corrections provided by Sun (collectively "Software"), by the
number of users and the class of computer hardware for which the corresponding
fee has been paid.
2. RESTRICTIONS. Software is confidential and copyrighted. Title to Software and
all associated intellectual property rights is retained by Sun and/or its
licensors. Except as specifically authorized in any Supplemental License Terms,
you may not make copies of the Software, other than a single copy of the
Software for archival purposes. Unless enforcement is prohibited by applicable
law, you may not modify, decompile, disassemble or otherwise reverse engineer
Software. Software is not designed or licensed for use in on-line control of
aircraft, air traffic, aircraft or navigation or aircraft communications; or in
the design, construction, operation or maintenance of any nuclear facility. You
warrant that you will not use the Software for these purposes. You may not
publish or provide the results of any benchmark or comparison test run on
Software to any third party without the prior written consent of Sun. no right,
title or interest in or to any trademark, service mark, logo, or trade name of
Sun or its licensors is granted under this Agreement.
3. LIMITED WARRANTY. Sun warrants to you that for a period of ninety (90) days
from the date of purchase, as evidenced by a copy of the receipt, the media on
which Software is furnished (if any) will be free of defects in materials and
workmanship under normal use. Except for the foregoing, Software is provided "AS
IS". Your exclusive remedy and Sun's entire liability under this limited
warranty will be at Sun's option to replace the Software media or refund the fee
paid for the Software.
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TOT THE EXTENT THAT THESE DISCLAIMERS
ARE HELD TO BE LEGALLY INVALID.
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN
NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR
DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES,
HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR
RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Sun's liability to you,
whether in contract, tort (including negligence), or otherwise, exceed the
amount paid by you for Software under this Agreement. The foregoing limitations
will apply even if the above stated warranty fails of its essential purpose.
6. TERMINATION. This agreement is effective until terminated. You may terminate
this Agreement at any time by destroying all copies of the Software. This
Agreement will terminate immediately without notice from Sun if you fail to
comply with any provision of this Agreement. Upon termination, you must destroy
all copies of Software.
7. EXPORT REGULATIONS. All Software and technical data delivered under this
Agreement are subject to U.S. export control laws and may be subject to export
or import regulations in other countries. You agree to comply strictly with all
such laws and regulations and acknowledge that you have the responsibility to
obtain such licenses to export, re-export, or import as may be required after
delivery to you.
8. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication, or disclosure by the
U.S. Government is subject to restrictions set forth in this Agreement and as
provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS
252.227-7013(c)(1)(ii)(Oct 1998), FAR 12.212(a)(1995), FAR 52.227-19 (June
1987), or FAR 52.227-14 (ALT III) (June 1987), as applicable.
9. GOVERNING LAW. Any action related to this Agreement will be governed by
California law and controlling U.S. federal law. No choice of law rules of any
jurisdiction will apply.
12
<PAGE>
10. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, this Agreement will remain in effect with the provision omitted,
unless omission of the provision will frustrate the intent of the parties, in
which case this Agreement will immediately terminate.
11. INTEGRATION. This Agreement is the entire agreement between you and Sun
relating to its subject matter. It supersedes all prior or contemporaneous oral
or written communications, proposals, representations and warranties and
prevails over any conflicting or additional terms of any quote, order,
acknowledgement, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification of this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
For inquiries please contact: Sun Microsystems, Inc., 901 San Antonio Road, Palo
Alto, California 94303
13
<PAGE>
Agreement-1
A LICENSE AGREEMENT
made this 4th day of January, 1999
BETWEEN
TecnoChannel Technologies Sdn Bhd a company incorporated in Malaysia whose
business address is at Lot G3, Technology Park Malaysia, 57000 Kuala Lumpur,
Malaysia (hereinafter referred to as "Licensor") on the one part
And
NetChina whose business address is at Beijing, China (hereinafter referred to as
"Licensee") on the other
WHEREAS:
1. Licensor to license its ThunderServe software (hereinafter referred to as
"the Software") to the Licensee
2. The Licensee wishes to use the Software to facilitate the access of its
customers to the Internet
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. LICENSE TO USE
1.1 Subject to the terms and conditions contained in this agreement, the
Licensor hereby grants to the Licensee the right to use the Software solely
in China (hereinafter referred to as "the License") provided that the
Licensee does not remove alter any proprietory legends or notices contained
in the Software.
1.2 The Software is confidential information belonging to the Licensor and
title to the Software is retained by the Licensor. The Licensee shall not
decompile, disassemble, decrypt, extract or otherwise reverse engineer the
Software. The Software may not be leased or assigned in whole or in part.
2. MYWEB ON-LINE SERVICE
The Licensor agrees to make available the traditional Chinese version of MyWeb
Online Service with full testing and acceptance by the Licensee prior to the
launch of the service.
<PAGE>
The Licensee agrees to ensure that all its Internet subscribers using the MyWeb
Online Service shall be directed to the MyWeb Online Service web site upon
connection to the Internet. The consideration for directing the subscribers to
the MyWeb On Line Service will be US Dollars [***] million.
The MyWeb On-Line Service for the Licensee will be jointly managed by the
parties to this agreement and revenue derived from advertising and transactions
will be [***] . The business plan of co-operation between the
parties will be set up under separate agreement, upon further consultation by
the parties.
3. MAINTENANCE
The License does not include maintenance and support of the Software by the
Licensor.
4. PAYMENTS
The consideration for the License shall be US Dollars [***] upon
signing of this agreement. The fee per subscriber is USD [***]
per annum, and is payable to the Licensor within 3 months of the date of
invoice, subject to the successful completion of the testing and launch of
service according to the business plan, mutually agreed by both parties.
5. ENGINEERING, TESTING AND BUSINESS PLAN
The Licensor will be solely responsible for the engineering of the MyWeb On-line
Service, including its traditional Chinese version for the Territory. It is
hereby agreed and declared that the parties to this agreement shall jointly test
and develop the service for the Territory, and finalize the business plan for
the MyWeb set-top box and the MyWeb On-Line Service in the Territory.
6. MARKETING & PROMOTION
It is hereby agreed and declared that the parties to this agreement shall
jointly market and promote the MyWeb set-top box and the MyWeb On-Line Service
and where appropriate, the Licensor shall encourage subscribers to use the
services of the Licensee.
7. TRADEMARKS AND LOGOS
Unless otherwise authorised by the Licensor, the Licensee is not authorised to
use any trademarks or logos belonging to the Licensor. The Licensee acknowledges
that the Licensor owns the ThunderServe trademark and MyWeb trademark and all
MyWeb related trademarks, logos and icons and agrees not to do anything harmful
to or inconsistent with the Licensor's rights in the aforementioned marks.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
8. WARRANTY
The Software will be delivered to the Licensee and shall be free from defects.
The Licensee's sole remedy in the event of a defective Software shall be a
replacement of the Software.
9. LIMITATION OF LIABILITY
In no event will the Licensor be liable for any lost revenue, profit or data or
for direct, indirect, special, consequential, incidental or punitive damages,
however caused and regardless of the theory of liability arising out of the use
of or inability to use the Software.
10. TERM OF LICENSE
The License shall be for a period of 1 year (hereinafter referred to as "the
Term").
11. TERMINATION
11.1 Either party may terminate this agreement in the event the other party is
in material breach and has not cured such breach within 30 days after
written notice by the other party.
11.2 All rights of the Licensee to the Software shall terminate upon expiry
of or termination of this agreement.
12. SECRECY
Not at any time during or after the Term will either party divulge or allow to
be divulged to any persons any confidential information relating to the business
or affairs of the other and the details of this agreement. In the event that
this Clause is breached, both parties agree that the aggrieved party shall be
entitled to claim against the other for damages and further equitable relief as
it deems necessary.
13. NON-ASSIGNMENT
The Licensee shall not assign or sub-contract any of its rights under this
agreement without the consent in writing of the Licensor.
14. COMPLIANCE WITH LAWS
To the extent applicable hereto, both parties shall comply with all laws,
regulations, policies and guidelines of Malaysia.
15. GOVERNING LAW
This agreement shall be governed and construed in all respects in accordance
with the laws of Malaysia.
<PAGE>
16. ARBITRATION
Any differences or disputes arising from this agreement shall be settled by an
amicable effort of both parties.
16.1 An attempt to arrive at a settlement shall be deemed to have failed as
soon as one of the parties notifies the other in writing.
16.2 If an attempt at settlement has failed, the parties shall try to settle
their dispute via arbitration in accordance with the applicable
arbitration legislation of Malaysia.
16.3 In the event that any attempt at an amicable settlement pursuant to
Clause 13.1 has failed, either party may seek to resolve their
differences or disputes in a valid court of law.
17. NO WAIVER
The failure of any party to assert or enforce any right hereunder (whether upon
a breach of this agreement by the other party hereto or otherwise) shall not be
deemed to be a waiver of such right with respect to any such breach or any
subsequent breach; nor will any waiver be implied from the acceptance of any
payment or service, except where the waiver has been expressly agreed to in
writing and signed by both parties.
18. NOTICE
Any notice or communication under this agreement shall be in writing and may be
given by registered post, facsimile or personal delivery to the following
addresses:
To : TecnoChannel Technologies Sdn Bhd
Unit G3, Technology Park Malaysia
57000 Kuala Lumpur, Malaysia
ATTN : MR T. S. WONG
To : NetChina
Beijing China
ATTN : MR FANG PING GUO
19. SEVERABILITY
If any one or more of the provisions contained in this agreement or any document
executed in connection herewith is found by any court of law with jurisdiction
over the matter to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired in any way.
<PAGE>
20. FORCE MAJEURE
Neither party shall be liable for delay in performance or failure to perform, in
whole or in part, the terms of this agreement if such failure or delay is due to
labour dispute, strike, war, or act of war, insurrections, riot, civil
commotion, act of publish enemy, accident, ire, flood, acts of God or other
causes beyond the reasonable control of such party and any delay or failure
shall not be considered to be a breach of this agreement. In the event that this
agreement cannot be performed due to the aforementioned circumstances for a
continuous period of 30 days, either party may at its discretion terminate this
agreement by notice in writing.
21. VARIANCE
All changes, modifications, variations and amendments to this agreement must be
in writing to be valid.
22. COST
Both parties shall be responsible for their solicitors' costs involved in the
preparation of this agreement. The stamp duty shall be borne by the Licensee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Tecnochannel Technologies Sdn Bhd NetChina
By: /s/ Signature illegible By: /s/ Signature illegible
----------------------- -----------------------
Name : T S Wong Name: Fang Ping Guo
President & CEO Manager
Date : Date:
<PAGE>
MEMORANDUM OF UNDERSTANDING
Party A: MyWeb Inc
Party B: Beijing Hong Ji Xing Ye (Masslink)
Both parties agree on the following matters after friendly discussion on the
matter of promoting and selling MyWeb products and software in the China market:
1. Both parties agree to jointly formulate the strategy and implementation of
plans to promote MyWeb products in the China market.
2. After the completion of the field trial, both parties will jointly
formulate plans for the market strategy and business operations.
3. Party B agrees to pay US$ [***] per year for each user of MyWeb
product to Party A, as compensation for the right to use MyWeb's
technology.
4. Both parties agree to jointly formulate plans for the market strategy and
business operations for MyWeb Online Service in China.
5. Party B agrees to install MyWeb Online Service for its subscribers once it
has been launched in China.
6. Matters not covered in this agreement will be decided through mutual
consensus. Both parties will try to resolve any disputes arising from the
implementation of this agreement. Any unresolved disputes between the two
parties will be referred to the court of People's Republic of China.
Party A Signature Party B Signature
/s/ illegible /s/ illegible
------------------------- -------------------------
[***] A portion of this page has been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
JOINT VENTURE AGREEMENT
Party A: MyWebinc.com
Party B:Haier
Both parties agree to be business partners in product development, marketing &
promotion, providing content, e-commerce, and jointly open up/develop the China
TV Internet market. The agreement is as follows:
A. Both parties agree to jointly develop and promote MyWeb Internet TV product
- Haier MyWeb
1. Party B agrees to be the Chinese manufacturer of MyWeb Set-top boxes.
2. Party A agrees to
- provide software technical support,
- licensing of the products manufactured,
- recommendation to Party B on the marketing channel,
- technical support, and
- [***] boxes.
3. Both parties agree to join with ISP and ICP to execute marketing and
promotional activities, and share the same marketing channel.
4. Both parties agree to develop the Haier-MyWeb set-top box product.
Party A will provide the software and Party B will provide the
hardware.
B. Party B agrees to include the MyWeb Online software into the joint venture
product in order to provide customers with easier usage of the products.
C. Both parties agree to a joint venture in E-Commerce. Party A will support
the sales and e-commerce for Party B in the worldwide network of Party A.
Party A also agrees to add Party B's link in the China MyWeb online service
website and jointly develop "Haier Family Internet Shopping Community", and
jointly promote this in the market.
MyWeb Haier
/s/ illegible /s/ illegible
- --------------------------- ---------------------------
July 12th 1999 July 12th 1999
[***] A portion of this page has been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
MEMORANDUM OF UNDERSTANDING - JOINT VENTURE
Party A: Lang Chao
Party B: Asia Media Communications Ltd (MyWeb)
Both parties agree to form a strategic alliance partnership to develop the
market for Internet TV in China. Below are the points agreed upon:
1. Lang Chao agrees to be the OEM manufacturer of MyWeb in China, responsible
for producing and developing Internet set-top boxes and related products.
2. Both parties agree to cooperate in the development of the market. MyWeb
agrees to assist Lang Chao in areas such as suppliers, sales channel,
customer recommendations, capital, etc. to expedite the shipment of Lang
Chao branded set-top boxes to the market.
3. Both parties agree to develop the new generation of set-top boxes. MyWeb
will provide Lang Chao the right to use the Thunder software while Lang
Chao will design and manufacture the hardware.
4. Both parties plan to launch [***] set-top boxes for rental or sale
in Beijing and other areas within six months.
5. MyWeb agrees to include a link to Lang Chao's website on the main page of
the MyWeb Online Service.
6. Lang Chao will install MyWeb's links to MyWeb Online Service on Lang Chao's
computers. MyWeb will provide the software [***] . It will also
provide [***] advertisement of Lang Chao's products on MyWeb's
website.
7. Both parties will establish a working committee responsible for carrying
out the project.
8. Any matters not raised in this agreement will be discussed on another
occasion. The agreement on the actual implementation will be signed by the
end of April.
There are four copies of this agreement, whereby each party will hold two
copies.
Party A Signature Party B Signature
/s/ illegible /s/ Danny Toe
- ----------------------- -------------------------
Danny Toe
Chief Operating Officer
1999/4/8
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
SERVICE AGREEMENT
BETWEEN:
TECNOCHANNEL TECHNOLOGIES SDN BHD
Block G Unit G G605 / 606
Phileo Damansara 1
No 9 Jalan 16/11
Off Jalan Damansara
46350 Petaling Jaya
hereinafter referred as "TecnoChannel"
AND
UNILEVER (MALAYSIA) HOLDING S/B
55, Jalan Bangsar
P.O.Box 11015
50900 Kuala Lumpur
hereinafter referred to as "Unilever"
WHEREAS
The parties hereby agree that TecnoChannel shall be appointed by Unilever to
develop and maintain a website on the Internet ("the Website") and to conduct
e-commerce by selling Unilever products ("the Products").
WHEREBY THE PARTIES AGREE as follows:
1. TERM OF AGREEMENT
The term of this agreement shall commence on 2 January 1999 for the period
of 1 (one) year. This Agreement shall be deemed to continue to be in force
on a yearly basis unless either party gives to the party not less than 90
days notice of termination in writing.
2. CONDITION PRECEDENT
TecnoChannel hereby represents to have obtained and to be in possession of
all Government approvals, licenses and permits required for TecnoChannel to
carry out its functions and obligations as set forth in this Agreement and
that the said licenses and approvals continue to be existing and valid
during the continuance of this Agreement.
3. SERVICE OBLIGATIONS BY TECNOCHANNEL
TecnoChannel shall:
a. introduce the Products onto the Website and to conduct e-commerce on
behalf of Unilever;
b. create and ensure that the Website is updated from time to time with
the latest information from Unilever in respect of the Products;
<PAGE>
c. use its best endeavor to ensure that the Website is well designed to
attract consumers and enhance Unilever products;
d. record and administer all responses from the customers which will form
a database ("the Customer Database"). The ownership and copyright of
the Consumer Database shall belong to UNILEVER (MALAYSIA) HOLDINGS SDN
BHD;
e. furnish to Unilever the Customer Database whenever requested by
Unilever;
f. respond to all orders from the consumers by raising Purchase Orders,
sending the Purchase Orders to Unilever, collect the Products from
Unilever central distribution centre in Shah Alam (Mayne Nickless
Logistics) and deliver the Products to the consumers after order has
been taken;
g. use its best ability to deliver the Products to the consumer within 14
days from the date the order was made by the consumers in the Website;
h. TecnoChannel shall comply strictly with the Company's technical
instructions with regard to the handling of the Products;
i. TecnoChannel shall distribute the Products in accordance with all the
terms and conditions herein contained and shall not be entitled to
charge any form of fee on the Company;
j. shall ensure that Unilever is allowed to include any form of
questionnaires in the Websites.
4. PRICE
(a) Unilever shall reserve the right to determine the price of the
Products (RCP) featured in the Website and to change any of its product
pricing.
(b) Unilever will sell to Tecnochannel at [***] . The mark-up
aforementioned may be varied from time to time depending on
circumstances with mutual consent of both parties.
5. EXCLUSIVITY
(a) Tecnochannel undertakes that it shall not during the continuance of
this Agreement, deal, trade or produce whether directly or through
third parties any of the products which are alike or similar to or
which perform the same or a similar function to or might otherwise
compete or interfere with the sales of the Products.
(b) Tecnochannel shall not during the continuance of this Agreement enter
into any other similar agreements with any direct competitors of
Unilever inclusive but not limited to Colgate, Proctor & Gamble, Lam
Soon, Kao, Southern Lion, Tohtonku, Unza, Zaitun & Loreal.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
6. AGENT/ REPRESENTATIVE
It is specifically understood and agreed that this Agreement does not
constitute TecnoChannel as the agent or legal representative of the Company
for any purpose whatsoever. Accordingly, TecnoChannel has no authority to
assume or to create any obligation on behalf of or in the name of the
Company.
7. CONFIDENTIALITY
TecnoChannel shall keep this Agreement confidential and shall not disclose
to any third parties or employees regarding the Company, its Products and
its business.
8. TERMINATION
Either party may terminate this Agreement by giving the other party 90 days
notice in writing.
9. NON-ASSIGNABILITY
TecnoChannel shall not assign or sub-contract any rights or obligations
under this Agreement in whole or in part to any third party without prior
consent from Unilever.
10. BINDING ON SUCCESSORS
This Agreement shall be binding on the successors in title and the
permitted assigns of the Parties hereto.
In witness whereof the parties hereto set their hands the day and above written.
Signed by: /s/ Sze Tian Poh ]
---------------------------
Sze Tian Poh
FOR AND BEHALF OF UNILEVER (MALAYSIA) HOLDINGS ]
SDN BHD ]
In presence of: /s/ Garu Tan Sim Huan ]
---------------------------
Garu Tan Sim Huan
Signed by: /s/ illegible
---------------------------
FOR AND BEHALF OF TECNOCHANNEL TECHNOLOGIES SDN BHD]
Company's chop: ]
---------------------------
I/C No : ]
---------------------------
In the presence of: /s/ illegible
-----------------------------------
<PAGE>
AGREEMENT
This agreement is made this 8th day of December, 1997
PHILIPS CONSUMER ELECTRONICS B.V. a company incorporated in Eidhoven, the
Netherlands and its affiliated companies (hereinafter collectively or
individually referred to as "Phillips") of the one part
And
TECNOCHANNEL SDN BHD, a company incorporated in Malaysia under the Malaysian
Companies Act 1965 with business address at Unit G3, Technology Park Malaysia,
Lebuhraya Puchong, Sungei Besi Bukit Jalil, 57000 Kuala Lumpur ("Tecnochannel")
of the other part.
WHEREAS
1. Tecnochannel is an operator of Internet TV service and a provider of
On-line service over the Internet TV.
2. Philips is in the business of manufacturing consumer electronics and
possesses the capability and technical know-how to develop and manufacture
the set-top box hardware which is necessary for use to access the Internet
via the television.
3. Tecnochannel possesses the skills and know-how to develop the software
which are for use to access the Internet via the television.
4. For the purposes of mutual benefit and enhancement of the commercial value
of their respective business Philips and Tecnochannel are desirous of
collaborating in the development of a system which is capable of operating
the Internet TV.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
ARTICLE 1. DEFINITION
1.1 Unless the context otherwise requires, the following words shall
have the following meaning:
AFFILIATED COMPANY means those companies whether within or without the
Territory which are in the control of Philips.
INTERNET TV OR INTERNET TV SYSTEM means the system comprising the
hardware and the software which are jointly developed by Philips and
Tecnochannel hereunder for the purposes of enabling registered users to
access the Internet via their television set.
<PAGE>
ON-LINE SERVICE means the network services provided by Tecnochannel to
registered users of the Internet TV.
INSTRUCTION MANUAL means the manual containing instructions to registered
users on, inter alia, the STB, the On-line service and the procedure on
registration for the On-line service.
REGISTERED USERS means users, both individuals and corporation, who have
paid the requisite registration fees and have signed on and registered
with Tecnochannel for the On-line service of the Internet TV.
SOFTWARE means the computer programs developed or to be developed by
Tecnochannel as part of the Internet TV system.
SPECIFICATION means the technical specification of the STB annexed
hereto as Schedule I and it includes any update modification or
improvement of or on the same.
STB means the set-top box being the hardware including any periphery
hardware which is developed or to be developed by Philips based on the
software developed by Tecnochannel as part of the Internet TV system for
use to convert Internet TV system for use to convert Internet data into
television receptable signals and vice versa.
TERRITORY means Malaysia and such other countries as the parties may
agree upon from time to time.
1.2 For the purposes of this agreement any reference to the Software,
the STB and the Instruction Manual shall include a reference to any
updated or improved version or a new generation of the same as the
case may be.
1.3 This agreement shall be construed and applied in accordance with the
laws of Singapore.
ARTICLE 2. THE AGREEMENT
2.1 In consideration of the mutual promises and covenants herein
expressed the parties hereto hereby agree to and declare that they
shall collaborate in the development, manufacture, sale and
marketing of the STB in the Territory in the manner and upon the
terms and conditions herein contained.
ARTICLE 3. SOFTWARE; DEVELOPMENT AND LICENSING
<PAGE>
3.1 Tecnochannel shall be responsible for the development of Software
which is necessary for running the STB and the Internet TV system
AND in this connection Tecnochannel hereby further agrees to provide
Philips with full technical and application support with respect to
the development of software interfacing.
ARTICLE 4. SET-TOP BOXES; MANUFACTURE
4.1 Philips shall be responsible for manufacturing the STB in accordance
with the Specification and in compliance with the Software operating
requirements.
4.2 The STB will be manufactured in accordance with Philips' quality
procedures as communicated to and accepted by Tecnochannel AND
Tecnochannel shall be entitled, at its own costs and expense and at
such times as may be mutually agreed upon, visit the manufacturing
facilities of Philips or of its affiliated companies.
4.3 Philips reserves its right at any time during the term of this
agreement to amend the Specification and to make mechanical,
electrical or design changes in or to the STB PROVIDED THAT such
amendments and changes do not affect the appearance, function or
reliability of the STB and that Tecnochannel is informed fourteen
(14) days in advance of any such amendments or changes.
4.4 In the event of amendments to the Specification and changes to the
STB that have effect on the performance, function or reliability of
the STB Philips shall inform Tecnochannel thirty (30) days in
advance to enable Tecnochannel to review and determine the
suitability and compatibility of the Software with the amendments
and changes.
ARTICLE 5. SALES AND DISTRIBUTION
5.1 Philips shall by itself or through its agents, servants or
affiliated companies sell and distribute the STB in the Territory.
5.2 In the performance of its obligation aforesaid Philips hereby
undertakes with Tecnochannel to use its best endeavor to ensure
sufficiency of stocks of the STB in the Territory.
5.3 Philips further agrees with Tecnochannel to supply and sell to
Tecnochannel [***] units of the STB as per terms and
conditions of the sales and purchase contract dated Oct 31st 1997
between Tecnocahnnel and Philips.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
ARTICLE 6. THE INSTRUCTION MANUAL AND PHILIPS' WARRANTY
6.1 The STB shall be sold and distributed under Philips' standard
packaging containing the Instruction Manual and carrying Philips'
warranty against defects for a period of 12 months.
6.2 Philips shall print the Instruction Manual and it must be printed in
accordance with the content and layout as approved by Tecnochannel.
ARTICLE 7. MARKETING AND PROMOTION
7.1 It is hereby agreed and declared that Philips and Tecnochannel shall
jointly market and promote the STB and the On-line service in the
Territory AND where appropriate or necessary Philips shall procure
its agents, servants or affiliated companies in the Territory to
carry out and perform the marketing and promotion jointly with
Tecnochannel.
ARTICLE 8. THE ON-LINE SERVICE
8.1 Tecnochannel shall be responsible for the provision and maintenance
of the On-line services and shall at its costs and expenses maintain
a homepage for this purpose and in connection with the On-line
service. Tecnochannel shall have an absolute discretion in
determining the following:
a) the terms and conditions governing the provision of the same;
b) the types of services to be provided;
c) the contents to be provided; and
d) the layout, design, name and address of the homepage.
ARTICLE 9. TECHNICAL CONSULTATION
9.1 The parties shall at their own cost and expense hold technical
consultation once a year or as regularly as circumstances may demand
to review the STB with a view to improving the same in order to meet
the need, if any, arising from development of new software or from
emergence of new applications.
<PAGE>
The technical consultation will be held at such place and at such
times at the request of either party hereto served on the other in
writing at least 14 days in advance.
ARTICLE 10. FORCE MAJEURE
10.1 Subject to clause 10.2 neither party shall be liable in damages nor
have the right to cancel this agreement for any delay or default by
the other party which arose from or are caused by unforeseen
conditions including but not limited to acts of God, government
restrictions, continuing domestics or international problems such as
wars or insurrections, strikes, fires, flood, work stoppage or
embargoes.
10.2 Should the events aforesaid be expected to continue for a period
exceeding three months, this agreement may be terminated by the
parties hereto upon 30 days notice in writing to the other.
ARTICLE 11. TERM AND TERMINATION
11.1 This agreement shall come into force from the date first above
written and shall remain in force until 2 years from the date above
AND thereafter it shall continue and shall be extended automatically
for successive periods of twelve months until termination by either
party in accordance with the procedure set forth below.
11.2 This agreement may be terminated by the parties hereto by notice in
writing served on the other at least three months before the
termination takes effect.
11.3 Without affecting the generality of the provision aforesaid either
party hereto shall be entitled to terminate this agreement forthwith
in the following circumstances, that is to say when party:
a) becomes insolvent;
b) makes general assignment for the benefit of its creditors;
c) suffers or permits the appointment of receiver or a receiver and
manager for its business and or assets;
d) is subject to any winding-up proceeding; or
e) commits a material breach of this agreement in respect of which a
notice to remedy has been served on the defaulting party and no
remedy has been made pursuant to the said notice for 30 days.
<PAGE>
ARTICLE 12. NOTICES
12.1 All notices, demands or consents required under this agreement shall
be in writing and shall be served by hand delivery or by prepaid
registered post at the address of the parties hereinafter stated or
at such other address as may be made known to the parties hereto
from time to time.
12.2 The address of the parties for the purposes of this clause shall be
as follows:
Tecnochannel Sdn Bhd.
Incubator 2, Lot G3, Technology Park Malaysia
Lebuhraya Puchong-Sungai Besi, Bukit Jalil
57000 Kuala Lumpur
Philips Singapore Pte Ltd.
Television Asia Pacific, New Business
No. 602A Lorong 1 Toa Payoh
Singapore 319762
ARTICLE 13. TIME OF ESSENCE
13.1 Time, whenever mentioned in this agreement, shall be of the essence.
ARTICLE 14. DISPUTES RESOLUTION
14.1 Any dispute arising out of or in connection with this agreement,
including any question regarding its existence, validity or
termination, shall be determined and resolved by an arbitrator to be
appointed by the parties hereto.
ARTICLE 15. INDEMNITY
15.1 Philips shall defend at its own cost and expense any suit or
proceedings brought by any third party against Tecnochannel insofar
as such suit or proceeding is based on a claim that the STB sold and
distributed by Philips hereunder infringes one or more of the patent
rights owned or controlled by such third party PROVIDED that Philips
is notified promptly in writing of the commencement or threat of any
such suit or proceeding for infringement and is given full authority
at Philips's option to settle or conduct the defense thereof and
full assistance and co-operation in the said defense AND PROVIDED
FURTHER that no cost or expense may be incurred to the account
of Philips without Philips' prior consent and knowledge.
15.2 In the event of the aforesaid, Philips may at is option and at its
own cost and expense:
a) procure for Tecnochannel the right to continue using the STB;
b) replace the STB with a non-infringement set-top box; or
c) modify the STB and render it non-infringement.
d) Philips shall not be liable for any patent infringement arising
from compliance with Tecnochannel's design specifications or
instructions provided that such patent infringements are not
within Philips' reasonable or foreseeable knowledge.
ARTICLE 16. INTELLECTUAL PROPERTY RIGHTS
16.1 The STB as sold and distributed by Philips shall carry Philips'
brand name together with the subname "MyWeb" belonging to
Tecnochannel and or such other subname(s) as Tecnochannel may
determine or use.
16.2 This agreement shall not be construed as giving Tecnochannel a right
or licence in the tradename or trademarks of Philips and in this
connection Tecnochannel shall not use the same in any way or manner
whatsoever without the written consent of Philips first had and
received.
<PAGE>
ARTICLE 17. MISCELLANEOUS
17.1 The failure of any party to enforce or assert reliance upon, 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 party's rights
under such provisions, or the right of such party thereafter to
enforce each and every provision of this Agreement.
17.2 This Agreement or any rights arising therefrom may not be
transferred or assigned in whole or in part by either party without
the express written consent of the other party.
17.3 Philips may, at its option, carry out such aspects of this Agreement
as it may desire through one or more of its affiliates, provided,
however, that such use or the acquiescence in such use shall not,
nor shall it be deemed to, substitute any such affiliates as the
contracting party hereunder in the place of Philips.
17.4 This Agreement sets forth and shall constitute the entire agreement
and understanding between Philips and Tecnochannel as to the subject
matter of this Agreement and merges all prior discussions between
them and neither of the parties hereto shall be bound by any
conditions, definitions, warranties or representations with respect
to the subject matter of this Agreement other than expressly
provided in this Agreement or as duly set forth on or subsequent to
the date hereof and in writing and signed by a proper and duly
authorised officer of the party hereto to be bound thereby.
17.5 Public announcements of either party shall be communicated to and
agreed on by the other party, prior to publication.
17.6 Each party will protect the other's Confidential Information from
unauthorised dissemination and use with the same degree of care that
each such party uses to protect its own like information. Neither
party will use the other's Confidential Information for purposes
other than necessary to directly further the purposes of this
Agreement. Neither party will disclose to third parties the other's
Confidential Information without the prior written consent of the
other party. The confidentiality undertakings of both parties
pursuant to this Article shall remain in full force and effect
during the duration of this Agreement and five (5) years thereafter.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first written above in a manner legally binding on them.
FOR PHILIPS : FOR TECNOCHANNEL :
By: /s/ Kopeczek By: /s/ T.S. Wong
-------------------- -------------------
Name: P. Kopeczek Name : T.S. Wong
-------------------- -------------------
Title : S.V.P./GM Title : CEO
-------------------- -------------------
<PAGE>
JOINT VENTURE AGREEMENT (JVA)
Beijing Telecom (hereafter referred to as Party A) and Asia Media Communication,
Ltd (MyWeb-inc, hereafter referred to as Party B), will jointly promote and
develop the internet television project and information services. To achieve
this objective, both parties have agreed to the following:
(1) The responsibilities and tasks of both parties
A. Party A's responsibilities and tasks
1. Party A agrees to provide Party B a [***] disk space in ChinaNet's
information services server for Party B to develop internet
information services.
2. Party A agrees to provide Party B a MyWeb Hot Link banner at a
visible position on the ChinaNet main page and, at the same time,
support Party B in promoting MyWeb Online Services.
3. Party A agrees to provide promotion and marketing strategies to
support Party B in penetrating the Beijing market. Party A will
also utilize its online service to promote rental or sales of
Party B's MyWeb Set Top Boxes.
4. Party A agrees to coordinate with Party B to complete
installation, renewal and editing of information.
5. Party A agrees to provide remote editing of information services.
6. Party A reserve the right to check/review the information content
from Party B.
B. Party B's responsibilities and tasks
1. Party B agrees to adhere to the "People's Republic of Chinese
Information Network International Rules" and the law of the
People's Republic of China.
Party B is not allowed to carry out any illegal activities.
Overall/general rules are as follows:
- Forbidden to publish any content related to national secrets and
security.
- Forbidden to publish any content related to superstitious and
pornographic material.
- Forbidden to publish any content which are against the national
race and religious policies.
- Forbidden to publish any content that will disturb/threaten
social order, social security, moral, and infringement of
personal rights.
[***] A portion of this page has been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
2. Party B will bear full responsibility for publishing any content
which causes political, legal or economy instability.
3. Party B agrees to setup ChinaNet 163 and 169 into MyWeb Set Top
Boxes.
4. Party B agrees to install Thunderserv Server software in Beijing
Telecom.
5. Party B agrees to put Beijing Telecom Hot Link banners at a
visible position on MyWeb Online Services' main page.
6. Party B agrees to report to Party A of any
additions/changes/modifications on the Website.
(2) Charges and payment method
A. Charges
1. One time testing charges : [***]
2. Annual publishing charges : [***] , any amount exceeding
[***] will be charged [***] . Party B is renting [***]
of space costing a total amount of [***] .
3. If the charges on Party A are adjusted, the adjustment shall not
be more than [***] of the agreed charges of this agreement.
B. Payment method.
Both parties have agreed that Party B can pay by "cash" or "Telegraphic
Transfer".
(3) Validity of JVA
1. The JVA will be effective on the day of the signing and any party that
plans to terminate the JVA will have to submit written notice one
month before the termination, subject to both parties agreeing to the
termination of the JVA.
2. Both parties agree to follow the JVA. In the event where one Party has
violated any agreement in the JVA, the other Party reserves the right
to terminate the JVA.
(4) This agreement will not be binding in the event of any changes to the
policies, rules or regulations of the National Information Properties
Policies by their top management.
(5) There are two copies of this agreement whereby each party will hold one
copy. Both parties will discuss matters not covered in this agreement on
another occasion.
Party A : BEIJING TELECOM Party B : ASIA MEDIA
COMMUNICATION LTD
/s/ illegible /s/ illegible
-------------------------- -----------------------
[Stamp]
Asia Media Communications Ltd
712 Fifth Avenue, 7th floor
New York, NY 10019
Contact Person : Contact Person : Wong Thean Soon
Contact Number : Contact Number : (603) 966-0393
12th April 1999 12th April 1999
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
Agreement-1
A LICENSE AGREEMENT
made this 4th day of May, 1999
BETWEEN
TecnoChannel Technologies Sdn Bhd a company incorporated in Malaysia whose
business address is at Lot G3, Technology Park Malaysia, 57000 Kuala Lumpur,
Malaysia (hereinafter referred to as "Licensor") on the one part
And
HKNet Co Ltd whose business address is at 3203 East Tower, Shun Tak Centre,
168-200 Connaught Road, Central, Hong Kong SAR, China (hereinafter referred to
as "Licensee") on the other
WHEREAS:
1. Licensor to license its ThunderServe software (hereinafter referred to as
"the Software) to the Licensee
2. The Licensee wishes to use the Software to facilitate the access of its
customers to the Internet
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. LICENSE TO USE
1.1 Subject to the terms and conditions contained in this agreement, the
Licensor hereby grants to the Licensee the right to use the Software solely
in Hong Kong (hereinafter referred to as "the License) provided that the
Licensee does not remove alter any proprietary legends or notices contained
in the Software.
1.2 The Software is confidential information belonging to the Licensor and
title to the Software is retained by the Licensor. The Licensee shall not
decompile, disassemble, decrypt, extract or otherwise reverse engineer the
Software. The Software may not be leased or assigned in whole or part in
part.
2. MYWEB ON-LINE SERVICE
The Licensor agrees to make available the traditional Chinese version of MyWeb
Online Service with full testing and acceptance by the Licensee prior to the
launch of the service.
<PAGE>
The Licensee agrees to ensure that all its Internet subscribers using the MyWeb
Online Service shall be directed to the MyWeb Online Service web site upon
connection to the Internet. The consideration for directing the subscribers to
the MyWeb On Line Service will be US Dollars [***] .
The MyWeb On-Line Service for the Licensee will be jointly managed by the
parties to this agreement and revenue derived from advertising and transactions
will be [***] . The business plan of co-operation between the parties will
be set up under separate agreement, upon further consultation by the parties.
3. MAINTENANCE.
The License does not include maintenance and support of the Software by the
Licensor.
4. PAYMENTS
The consideration for the License shall be US Dollars [***] upon signing of
this agreement, [***] . The fee per subscriber from 1st January 2000 is
USD [***] per annum, and is payable to the Licensor within 3
months of the date of invoice, subject to the successful completion of the
testing and launch of service according tom the business plan, mutually agreed
by both parties.
5. ENGINEERING, TESTING AND BUSINESS PLAN
The Licensor will be solely responsible for the engineering of the MyWeb On-line
Service, including its traditional Chinese version for the Territory. It is
hereby agreed and declared that the parties to this agreement shall jointly test
and develop the service for the Territory, and finalize the business plan for
the MyWeb set-top box and the MyWeb On-Line Service in the Territory.
6. MARKETING & PROMOTION
It is hereby agreed and declared that the parties to this agreement shall
jointly market and promote the MyWeb set-top box and the MyWeb On-Line Service
and where appropriate, the Licensor shall encourage subscribers to use the
services of the Licensee.
7. TRADEMARKS AND LOGOS
Unless otherwise authorised by the Licensor, the Licensee is not authorised to
use any trademarks or logos belonging to the Licensor, The Licensee acknowledges
that the Licensor owns the ThunderServe trademark and MyWeb trademark and all
MyWeb related trademarks, logos and icons and agrees not to do anything harmful
to or inconsistent with the Licensor's rights in the aforementioned marks.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
8. WARRANTY
The Software will be delivered to the Licensee and shall be free from defects.
The Licensee's sole remedy in the event of a defective Software shall be a
replacement of the Software.
9. LIMITATION OF LIABILITY
In no event will the Licensor be liable for any lost revenue, profit or data or
for direct, indirect, special, consequential, incidental or punitive damages,
however caused and regardless of the theory of liability arising out of the use
of or inability to use the Software
10. TERM OF LICENSE
The License shall be for a period of 1 year (hereinafter referred to as "the
Term").
11. TERMINATION
11.1 Either party may terminate this agreement in the event the other party is
in material breach and has not cured such breach within 30 days after
written notice by the other party.
11.2 All rights of the Licensee to the Software shall terminate upon expiry of
or termination of this agreement.
12. SECRECY
Not at any time during or after the Term will either party divulge or allow to
be divulged to any persons any confidential information relating to the business
or affairs of the other and the details of this agreement. In the event that
this Clause is breached, both parties agree that the aggrieved party shall be
entitled to claim against the other for damages and further equitable relief as
it deems necessary
13. NON-ASSIGNMENT
The Licensee shall not assign or sub-contract any of its rights under this
agreement without the consent in writing of the Licensor.
14. COMPLIANCE WITH LAWS
To the extent applicable hereto, both parties shall comply with all laws,
regulations, policies and guidelines of New York.
15. GOVERNING LAW
This agreement shall be governed and construed in all respects in accordance
with the laws of New York.
<PAGE>
16. ARBITRATION
Any differences or disputes arising from this agreement shall be settled by an
amicable effort of both parties.
16.1 An attempt to arrive at a settlement shall be deemed to have failed as soon
as one of the parties notifies the other in writing.
16.2 If an attempt at settlement has failed, the parties shall try to settle
their dispute via arbitration in accordance with the applicable arbitration
legislation of Malaysia.
16.3 In the event that any attempt at an amicable settlement pursuant to Clause
13.1 has failed, either party may seek to resolve their differences or
disputes in a valid court of law.
17. NO WAIVER
The failure of any of the other party to assert or enforce any right hereunder
(whether upon a breach of this agreement by the other party hereto or otherwise)
shall not be deemed to be a waiver of such right with respect to any such breach
or any subsequent breach; nor will any waiver be implied from the acceptance of
any payment or service, except where the waiver has been expressly agreed to in
writing and signed by both parties.
18. NOTICE
Any notice or communication under this agreement shall be in writing and may be
given by registered post, facsimile or personal delivery to the following
addresses:
To : TecnoChannel Technologies Sdn Bhd
Unit G3, Technology Park Malaysia
57000 Kuala Lumpur, Malaysia
ATTN : MR T. S. WONG
To : HKNet Co Ltd
3203, East Tower, Shun Tak Centre
168-200 Connaught Road, Central
Hong Kong SAR, China
ATTN : MR CHARLES MOK
19. SEVERABILITY
If any one or more of the provision contained in this agreement or any document
executed in connection herewith is found by any court of law with jurisdiction
over the matter to be invalid, illegal or unenforceable in any respect, the
validity. Legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired in any way.
<PAGE>
20. FORCE MAJEURE
Neither party shall be liable for delay in performance or failure to perform, in
whole or in part, the terms of this agreement if such failure or delay is due to
labour dispute, strike, war, or act of war, insurrections, riot, civil
commotion, act of publish enemy, accident, ire, flood, acts of God or other
causes beyond the reasonable control of such party and any delay or failure
shall not be considered to be a breach of this agreement. In the event that this
agreement cannot be performed due to the aforementioned circumstances for a
continuous period of 30 days, either party may at its discretion terminate this
agreement by notice in writing.
21. VARIANCE
All changes modifications variations and amendments to this agreement must be in
writing to be valid.
22. COST
Both parties shall be responsible for their solicitors' costs involved in the
preparation of this agreement. The stamp duty shall be borne by the Licensee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
ASIA MEDIA COMMUNICATIONS LTD: HK NET CO LTD:
By: /s/ T.S. Wong By: /s/ Charles Mok
------------------ -----------------------
Name : T S Wong Name: Charles Mok
President & CEO General Manager
Date : 4-May-99 Date: 4-May-99
[Stamp] [Stamp]
MyWeb Inc.com HKNet Company
712 Fifth Avenue 7th Floor
New York, NY 10019
<PAGE>
MEMORANDUM OF UNDERSTANDING - JOINT VENTURE
Party A : China Sci-Technologies International Trust & Investment Co. Ltd
Address :
Party B : MYWEB INC.COM
Address : 712 FIFTH AVENUE, 7th Floor , New York, N.Y. 10019
Both parties have agreed to form a strategic alliance partnership and also
agreed on the following points on the matter of promoting and developing the
internet stock trading market:
1. Both Parties have agreed to jointly research and develop MyWeb Set-top box
technologies on the household internet stock trading solutions, based on
MyWeb Set-top box technologies and MyWeb Online Service, and jointly focus
on the development of the internet stock trading market.
2. Party B agrees to provide Party A :
- a certain number of MyWeb set-top boxes, at a certain time frame;
- technical and service support to customers of Party A who are in the
internet stock trading business; and
- MyWeb Online Services.
3. Party A agrees to
- buy from Party B MyWeb Set-top boxes;
- use Party A's website to promote and demonstrate MyWeb's product, and
- use an effective method to rent, sell, give Set-top boxes to Party
A's users to promote the growth of internet stock trading.
4. Party B agrees to
- place a link to Party A on MyWeb Online Services "Internet Stock
Trading" site;
- allow Party A to do business promotions on MyWeb Online Service,
internet stock trading information services and customer support; and
- provide the necessary technical support.
5. Party B agrees to install MyWeb software in Party A's computers [***],
as well as provide [***] to Party A's
customers.
6. Both parties will establish a working committee to liaise with the
relevant ISPs, banks and software vendors, to launch both parties'
marketing and business plans, to provide household internet stock trading
solutions, and to increase the number of customers.
7. Both parties will discuss any matters not raised in this agreement on
another occasion. The detail execution plan and agreement will be signed
in May.
There are four copies of this agreement, whereby each party will hold two
copies.
Party A - Signature Party B - Signature
/s/ illegible /s/ illegible
- ----------------------------- -------------------------------
19th May 1999 19th May 1999
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the SEC.
<PAGE>
JUNE 22, 1999
MYWEB INC.
DEAR DANNY,
LETTER OF AGREEMENT
The following constitutes our mutual understanding with respect to your
retention of Ogilvy Public Relations Worldwide (hereinafter "Ogilvy PR") as
public relations consultant to "MyWeb" (hereinafter "CLIENT").
A. As public relations consultant, Ogilvy PR will provide communications
counsel and services as described in the attached proposal presented
today, June 22, 1999.
B. Ogilvy PR will perform these services in accordance with the following
terms:
1) This agreement is effective as immediately upon your signature.
2) We shall provide these services as independent contractors, not as
your employee or agent. We shall not undertake any major activities
nor make any commitments on your behalf without your approval.
3) Ogilvy PR will bill "CLIENT" in two stages for this launch campaign.
The first invoice will be presented upon signature of this agreement
for 1/3 of the agreed to fees. A second invoice will be presented on
July 15 for the second 1/3 payment, with a third invoice presented on
August 15 for the third and final payment for the pre-launch
activities. The total cost, as outlined in the attached proposal,
will not exceed US$ [***] for pre-launch public relations
activities. Additional projects will require agreement by both
parties, after assessing the results of the pre-launch campaign.
4) All additional approved projects and work activity outside of the
scope of the agreed activity will be billed as "Special Projects" and
these will be executed upon signed agreements by you of quotations
presented by us.
5) Outside costs for the execution of this program will include such
items as translation, photocopying, transportation, press clippings,
etc. and these expenses will be billed to "CLIENT" [***]
6) Ogilvy PR shall be entitled to a [***] % agency commission on
the production of all print or audio-visual materials and other items
constructed or designed on "CLIENT's" behalf. All production estimates
must be approved in writing by "CLIENT", at which time [***]
is payable. The remaining [***] is payable upon completion of
the production.
- ---------------
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
7) "CLIENT" agrees to pay our invoices upon receipt. If payments are not
received within 60 days, Ogilvy PR will impose a finance charge of
one and one-half percent (1 1/2%) per month on the unpaid balance or
the maximum lesser rate allowed by law.
8) In the event that we incur costs, disbursement and/or legal fees in
an effort to collect our invoices, you agree to reimburse us for
these expenses.
9) "CLIENT" will indemnify and hold Ogilvy PR harmless with respect to
any claims or actions instituted by any third party which result from
the use by Ogilvy PR of material furnished to Ogilvy PR by "CLIENT"
or where material created by Ogilvy PR is substantially changed by
"CLIENT" or arising out of the nature or use of "CLIENT's"
products(s). Information or data obtained by Ogilvy PR from "CLIENT"
to substantiate claims or statements released by Ogilvy PR on
"CLIENT's" behalf shall be deemed to be "materials furnished to
Ogilvy PR by "CLIENT". This paragraph, insofar as it applies to work
undertaken while this agreement is in effect, shall survive the
termination of this agreement.
10) (a) Ogilvy PR acknowledges and agrees that it will have access
to, or become acquainted with, confidential information of
"CLIENT". For the purpose of this agreement, confidential
information shall mean any information of "CLIENT", whether or
not developed by Ogilvy PR, including but not limited to
information which relates to all ideas, designs, methods,
discoveries, improvement, products, documents or other results
of the professional services, trade secrets, product data and
specifications, proprietary rights, business affairs, product
developments, customer information or employee information.
Confidential information does not include any information that:
(i) Ogilvy PR can prove was known to it prior to the date of
this agreement and any other agreement between the parties
hereto, without an obligation to keep it confidential;
(ii) Ogilvy PR can prove was lawfully obtained from a third
party without any obligation of confidentiality; or
(iii) Is or becomes part of the public domain through no act or
violation of any obligation of O&MPR.
(b) Ogilvy PR acknowledges and agrees that the confidential
information constitutes valuable trade secrets of "CLIENT".
Ogilvy PR shall keep all confidential information in confidence
and shall not, at any time during or after the term of this
agreement, without "CLIENT's" prior written consent, disclose or
otherwise make available, directly or indirectly, any item of
confidential information to anyone other than Ogilvy PR
employees who need to know the same in performance of their
-2-
<PAGE>
professional services. Ogilvy PR shall use confidential
information only in connection with the performance of
professional services hereunder and for no other purpose. Ogilvy
PR shall inform its employees of the trade secret, proprietary
and confidential nature of the confidential information.
11) "CLIENT" agrees that "CLIENT" will not (without the previous written
consent of the Consultancy) at any time prior to the elapse of twelve
months from the date "CLIENT" ceases to be a client of the
Consultancy either solicit or employ directly or indirectly the
services of any employee or former employee of the Consultancy who
has at any time been engaged on "CLIENT's" work or any firm or
company of which such an employee becomes a director, manager, agent
or employee during such period.
12) A review of work performance and compensation terms will take place
in one months time as Ogilvy PR and "CLIENT" prepare for launch
activities.
13) This agreement may be cancelled by either party upon ninety (30) days'
written notice. You will not be liable for any monthly retainer bills
or other fees or expenses incurred after the effective date of such
termination.
14) This agreement shall be governed in accordance with the laws of
China.
15) Ogilvy PR will not undertake work with any new account which directly
competes with the business of "CLIENT," without prior approval by
"CLIENT."
16) This agreement covers "CLIENT's" pre-launch public relations
activities. This agreement will be followed by another supplemental
contract covering launch activities and advertising terms.
If the above correctly sets forth your understanding of our agreement, kindly
sign and return one (1) copy of this letter and retain one original copy for
your files.
We appreciate the confidence you have placed in Ogilvy PR.
Sincerely,
Ogilvy Public Relations Worldwide Accepted & Agreed Upon
Worldwide
/s/ illegible /s/ illegible
- ----------------------------------- ----------------------------
6/23/99 6/23/99
- ----------------------------------- ----------------------------
Date Date
-3-
<PAGE>
[Attachment to Letter of Agreement]
Ogilvy Public Relations Worldwide 4th floor,
The Everbright Blue Diamond Tower,
No. 1 Sheng Gu Zhong Lu,
Dong Cheng District,
Beijing, China, 100029
Tel: 8610-6443-6488
Fax: 8610-6443-6499
www.ogilvypr.com
MyWeb Details And Costs:
1. Launch Day Activities
--> [***]
--> [***]
--> [***]
--> Costs:
--> Fee: US [***]
--> OOP: US [***]
--> Additional Press Releases US [***]
-----------------
--> Total US [***]
2. Focused One-On-One Influential Media Interviews
--> [***]
--> Fee: US$ [***]
Total: (Focused One-on-One Influential Media Interviews +
Launch Day Activities):
Total: US$ [***]
- ---------------
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
-4-
<PAGE>
AGREEMENT
Company: TecnoChannel Sdn. Bhd
Agreement No. NCORE/TECNOCHANNEL/1999/01
This Agreement is effective as of June 28, 1999 (Effective Date) by and between
Ncore Technology, an Indian corporation, with offices at Leo Complex, 4th
Floor, 44&45 Residency (Cross) Road, Bangalore 560025, India, (hereinafter
called '"Ncore"), and TecnoChannel Sdn Bhd (Company No. 426318-M) of Block G,
units G605/606, Phileo Demansara 1, No. 9, Jin 16/11, Off Jalan Damansara,
46350 Petaling Jaya, Selangor Malaysia, a Malaysian corporation, (hereinafter
called "TecnoChannel").
RECITALS:
WHEREAS, Ncore is engaged in the business of designing, developing and
producing quality software and hardware systems for themselves as well as for
others and rendering consultancy services and promoting hardware and software
exports; and
WHEREAS, TecnoChannel is engaged in the business of designing, developing and
producing quality software and hardware systems for themselves as well as for
others; and
WHEREAS, Ncore is able to procure the services of employees and/or other
contacts within India; and
WHEREAS, TecnoChannel desires to obtain engineering and programming services
from Ncore to develop software for use in or with TecnoChannel products and
Ncore has agreed to provide such services; and
WHEREAS, TecnoChannel desires, and Ncore has agreed, that all software and
documentation developed pursuant to this agreement shall be owned solely and
exclusively by TecnoChannel.
Now, therefore, in consideration of the mutual promises and covenants set forth
herein, the sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. SCOPE OF SERVICES
During the term of this Agreement, Ncore shall furnish the services
set forth in the Schedule, attached hereto and made a part hereof.
Such services shall be performed by individuals as employees of Ncore,
an independent contractor, and not as employees of TecnoChannel.
2. MILESTONES
Ncore will use all reasonable endeavours to achieve completion of each
milestone set out in the Schedule by the relevant milestone. If Ncore
cannot meet the delivery deadline for
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<PAGE>
the final delivery (Milestone 3), TecnoChannel shall have the right to
claim delay penalties if the delay is in excess of two weeks of the
scheduled delivery of Milestone 3. The penalty amount shall be equal
to [***] of the total amount of the contract, per week of delay beyond
two weeks, or any part thereof, with a maximum limit of [***] of the
total amount.
3. ACCEPTANCE TESTS
3.1 TecnoChannel shall conduct an acceptance test, as outlined in
the Schedule, at the end of the 20th week from the effective
date of this agreement. If TecnoChannel is dissatisfied with
the performance of the software developed by Ncore,
TecnoChannel shall notify Ncore and elect at its option to:
(a) require Ncore to take all necessary steps and
actions to enable the software to function to the
satisfaction of TecnoChannel at no additional charge
or costs within 28 days of the aforementioned notice
or;
(b) to accept such software or part with an abatement of
the contract price.
3.2 Failing the software passing the acceptance test of
TecnoChannel or written agreement as to abatement,
TecnoChannel may reject the entire software as not being in
conformity with this Agreement in which case TecnoChannel may
terminate this Agreement.
4. WARRANTY
Ncore warrants and undertakes for a period of 12 months from the date
of acceptance of the software that:
(a) The software will run on the hardware, the
specifications of which have been set out in the
Schedule;
(c) The design of the software will be suitable to
fulfil the specifications as set out in the Schedule
and the software will perform and function in
accordance with the specifications;
(c) The software will be free from defects in
workmanship.
In the event that the warranties set out above are not conformed with,
Ncore shall be responsible, without charge to TecnoChannel, for
rectifying any defect of the software to the satisfaction of
TecnoChannel. For the purposes of this clause, a defect means any
non-conformance with the warranties set out above.
5. TERM OF AGREEMENT
This Agreement shall commence on June 21, 1999 and terminate on June
20, 2000. This Agreement may be extended by mutual agreement of the
parties provided in writing.
- -----------
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
2
<PAGE>
6. BILLING AND PAYMENT
6.1 As compensation for services to be performed by Ncore
hereunder, TecnoChannel shall pay Ncore at the rates set
forth in the Schedule and to the extent, if any, expressly
provided for in the Schedule, reimbursements for certain
costs, such as travel expenses incurred in the performance of
services hereunder. TecnoChannel shall not have any liability
for any other expenses or costs incurred by Ncore hereunder,
unless otherwise provided in the Schedule.
6.2 Ncore shall bill TecnoChannel as specified in the Schedule.
Invoices shall be faxed to TecnoChannel Sdn Bhd (Company No.
426318-M) of Incubator Lot G3, Technology Park Malaysia,
Lebuhraya Puchong-Sg Besi, Bukit Jalil, 57000 Kuala Lumpur,
Malaysia, Attention: Accounts Payable. TecnoChannel shall
make the payment, by wire transfer to Ncore's bank as
indicated in the Schedule, within seven days of receipt of
the invoice by fax.
6.3 Upon TecnoChannel's acceptance of the software and
documentation identified in the Schedule, Ncore shall return
to TecnoChannel all copies of TecnoChannel Specifications
provided to Ncore and remaining in its possession.
7. PUBLICITY
Ncore shall not, without the prior written consent of TecnoChannel, in
any manner advertise or publish the fact that TecnoChannel has entered
into this Agreement with Ncore.
8. TERMINATION
8.1 TecnoChannel shall have the right to terminate this Agreement
or any part thereof at any time without cause. In case of
termination by TecnoChannel of all or any part of this
Agreement without cause, any termination claim must be
submitted to TecnoChannel within sixty (60) days after the
effective date of termination. The provision of this clause
shall not limit or affect the right of TecnoChannel to
terminate this Agreement pursuant to clause 8.2.
8.2 This Agreement may be terminated by either party: (i) for
breach of the provisions hereof; or (ii) in the event that an
assignment is made of either party's business for the benefit
of creditors, or if a receiver or trustee in bankruptcy is
appointed to take charge of all or part of either party's
property.
8.3 In the event of termination, either with or without cause,
Ncore shall immediately transfer to TecnoChannel all
software, including all complete and partial copies thereof,
documentation or other technical information developed
pursuant to or in association with this Agreement. Each party
shall also return to the other any confidential information
of the other party in the receiving party's possession;
3
<PAGE>
provided, however, the party may retain one copy of such
confidential information for archival purposes only.
9. CHANGES
TecnoChannel, within the general scope of this Agreement, may at any
time, by written notice to Ncore, require additional services to be
covered by this Agreement. Ncore may require a reasonable amount of
time to provide these additional services.
10. NOTICES
All notices or correspondence pertaining to this Agreement shall be
addressed as follows:
to TecnoChannel:
TecnoChannel Sdn Bhd
(Company No. 426318-M) of
Block G, units G605/606
Phileo Demansara 1
No. 9, Jin 16/11
Off Jalan Damansara
46350 Petaling Jaya
Selangor Malaysia
Attn.: Mr. Jason Chan
to Ncore:
Ncore Technology Pvt Ltd.
Leo Complex, 4th Floor
44&45 Residency (Cross) Road
Bangalore - 560025
India
Attn.: Mr. Vinay Deshpande
11. GOVERNING LAWS
This Agreement shall be construed and the rights of the parties
hereunder governed by the laws of India applicable to agreements made
and to be performed in that country.
12. INDEMNITY AND LIABILITY
Ncore hereby indemnifies and holds TecnoChannel, its directors,
officers, agents and employees, harmless against any and all claims,
actions or demands against TecnoChannel, its directors, officers,
agents and employees and against any and all damages, liabilities or
expenses, including counsel fees, for injury to or death of any person
and for loss of or damage to any and all property, arising out of the
acts or omissions of Ncore under this Agreement.
4
<PAGE>
NEITHER PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER, ITS
CUSTOMERS, OR TO ANY OTHER PERSON OR COMPANY FOR LOST PROFITS OR ANY
INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING
THEREFROM, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF
WARRANTY, BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT TORT LIABILITY
OR OTHERWISE, EXCEPT WITH RESPECT TO DAMAGES FOR WRONGFUL DISCLOSURE
OR MISUSE OF INTELLECTUAL PROPERTY. NO ACTION OR PROCEEDING AGAINST
TECNOCHANNEL MAY BE COMMENCED MORE THAN TWENTY FOUR (24) MONTHS AFTER
THE DATE OF ACCRUAL OF THE CAUSE OF ACTION OR THE TERMINATION OF THIS
AGREEMENT, WHICHEVER IS EARLIER, THIS CLAUSE SHALL SURVIVE FAILURE OF
AN EXCLUSIVE REMEDY,
13. STANDARDS
All services hereunder shall be performed by employees of Ncore who
are experienced and highly skilled in their profession and in
accordance with the highest standards of workmanship in their
professions.
Ncore's total liability under this section for any reason, regardless
of the form of action, however arising, will not exceed the amount
paid by TecnoChannel to Ncore for non-conforming service.
14. INTELLECTUAL PROPERTY RIGHTS
All software, documentation, information and data, regardless of form,
generated in the performance of or delivered under this Agreement, as
well as any information provided to Ncore by TecnoChannel, shall be
and remain the sole property of TecnoChannel. Ncore shall keep all
such software, documentation, information and data in confidence and
not disclose or use it for any purpose other than in performing this
Agreement, except with TecnoChannel's prior written approval.
In the event that the copyright or other intellectual property
right(s) other than patents in any software, documentation, data or
other information generated in the performance of this Agreement does
not vest in TecnoChannel by law, Ncore hereby assigns to TecnoChannel
all right, title and interest worldwide, in and to any copyright or
other intellectual property right(s), other than patents, which Ncore
may have in such software, documentation, data or other information.
Ncore hereby assigns to TecnoChannel the entire right, title, and
interest, worldwide, in any invention or patent thereunder conceived
or first actually reduced to practice in performing this Agreement.
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<PAGE>
In connection with actual inventions or patents conceived or first
actually reduced to practice in connection with this Agreement, Ncore
will furnish TecnoChannel with information sufficient to file and
prosecute patent applications, and will execute all documents incident
to such filing and prosecution and, in connection with the license
granted under this Agreement, Ncore will furnish information
sufficient to enable TecnoChannel to avail itself of such license.
These obligations shall survive the termination of this Agreement.
15. CONFIDENTIALITY
15.1 Notwithstanding that this Agreement shall have terminated or
expired, Ncore agrees that it will keep in confidence and
prevent the disclosure to any person or persons outside
Ncore, or to any unauthorized person or persons, any and all
data or information generated, specified for delivery or
delivered hereunder. Ncore also agrees to keep in confidence
all other TecnoChannel data that is designated in writing, or
by an appropriate stamp or legend, to be of a proprietary
nature. TecnoChannel shall reduce to writing any oral
disclosure of proprietary or confidential data within thirty
(30) days of such disclosure, and shall identify the
proprietary or confidential data in writing, or by an
appropriate stamp or legend, to be of a proprietary or
confidential nature, and such data shall be treated in
confidence hereunder.
15.2 Notwithstanding the foregoing paragraph, the above
confidentiality restrictions shall not be applicable to any
such data if such used or disclosed data:
a. Is or becomes available to the public without breach
of this Agreement; or
b. Is known to Ncore at the time of disclosure; or
c. Is used or disclosed with the prior, written
approval of TecnoChannel; or
d. Is independently developed by Ncore without access
to or use of any confidential information of
TecnoChannel
15.3 Ncore shall not be liable for inadvertent, accidental, or
mistaken use or disclosure of data obtained under this
Agreement despite the exercise of the same reasonable
precaution as it takes to safeguard its own proprietary
information.
15. DISPUTE RESOLUTION
If any claim or controversy arises out of, or relates to, this
Agreement, the parties shall make a good faith attempt to resolve the
matter through their management. The managers having cognizance of the
subject matter of the Agreement for the party shall first meet and
make a good faith attempt to resolve such controversy or claim. In the
event that the parties are unable to resolve such a dispute, the
matter shall be referred to arbitration. Such arbitration shall be
conducted by a panel of three arbitrators, one selected by each party
and a neutral arbitrator selected by the party arbitrators, if the
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<PAGE>
arbitration panel shall conduct its proceedings as expeditiously as
possible, and no prehearing discovery shall be held except as ordered
by the arbitration panel, which shall limit discovery except as it
determines to be essential to a just result and not unduly burdensome.
The arbitral panel shall not be empowered to award exemplary or
punitive damages. The arbitration shall take place at a mutually
agreed upon location, or, if the parties are unable to agree on such a
location, or if none, then within thirty miles of Bangalore, India.
The arbitral panel shall not have the right decide issues of
arbitrability. Notwithstanding this dispute resolution procedure,
either party shall have the right to seek an injunction in a court of
appropriate jurisdiction, in the event that it believes that its
intellectual property rights are at risk.
17. NOTICE TO TECNOCHANNEL OF LABOR DISPUTES
Whenever Ncore has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of
this Agreement, Ncore shall immediately give notice thereof, including
all relevant information with respect thereto, to TecnoChannel.
18. BOOKS AND RECORDS
In circumstances under this Agreement where Ncore is entitled to
reimbursement of costs incurred in connection with this Agreement,
Ncore's records of the insurance of such costs shall be subject to
inspection by TecnoChannel or its representatives.
19. RELATIONSHIP OF PARTIES
It is agreed that this Agreement does not constitute a partnership,
joint venture or agency between the parties thereto, nor shall either
of the parties hold itself out as such, contrary to the terms hereof,
by advertising or otherwise, nor shall either of the parties be bound
or become liable because of any representation, action or omission of
the other.
20. ENTIRE AGREEMENT
This Agreement (together with the Schedule attached hereto)
constitutes the entire Agreement and supersedes all prior
negotiations, representations, agreements and understanding, oral or
written, between the parties hereto with respect to the subject matter
hereof.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Ncore Technology Pvt. Ltd. Tecnochannel Sdn Bhd
BY: /s/ illegible BY: /s/ illegible
----------------------- ----------------------
TYPED NAME: Vinay L. Deshpande TYPED NAME: T.S. Wong
TITLE: Chairman & CEO TITLE: CEO
8
<PAGE>
SCHEDULE
[***]
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Portions of this page have been omitted pursuant to a request for Confidential
Treatment and filed separately with the Commission.
9
<PAGE>
TVSN - MYWEB E-COMMERCE PARTNERSHIP
-----------------------------------
<TABLE>
<CAPTION>
<S> <C>
The Partners: TVSN China (Holdings) Limited - a BVI company operating a television
shopping and online retail business targeting Greater China ("TVSN"). For
the purpose of this term sheet TVSN's online retail business for China is
called "ITVSN", ITVSN is expected to launch in 1Q00.
MyWeb Inc.com - A US company operating, among other businesses, a TV portal
in China ("MyWeb").
The Project: MyWeb to use TVSN distribution channel for its e-commerce channel.
1. TVSN to fulfill e-commerce orders. To be documented in a "Fulfillment
Services Agreement."
2. MyWeb to sell its top box product ("STB") through TVSN's network. To be
documented in a "STB Distribution Agreement."
3. MyWeb to sell TVSN's products through its channel. To be documented in
an "Online Retail Partnership Agreement."
Financial Relationship: 1. TVSN would fulfill e-commence orders generated by MyWeb online retail
properties. Such sales would `pass through' TVSN on a seamless basis and
include a complete circle of services: order entry, customer profiling,
warehousing, pick & pack, dispatch via courier, cash-on-delivery
collection, COD refusal processing, returns processing, and customer
service both online and telephone call center. Such services would be
provided to MyWeb [***].
2. MyWeb [***] and train a TVSN presenter to sell STBs. TVSN
would produce a 30-minute co-branded MyWeb television program designed to
promote and sell the STBs. TVSN would earn [***] on each STB sold via the
program. TVSN would air the program according to an agreed schedule and
MyWeb would barter promotion (in addition to item 3 below) on its TV
portal to correspond to the value of the television airtime. TVSN would
fulfill STB orders on a nationwide basis.
3. MyWeb would agree to provide prominent promotional space in its TV
portal e-commerce or shopping channel for ITVSN. MyWeb would receive [***] of
net merchandise sales for all sales resulting from MyWeb traffic.
Optional Barter: MyWeb and TVSN may negotiate in good faith to barter TVSN
</TABLE>
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[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
TV airtime, in the form of a dedicated MyWeb show which would demonstrate the MyWeb
set-top box offering in exchange for additional promotion on the MyWeb TV portal.
Exclusivity: Unless the Partners mutually agree otherwise, the Project will be non-exclusive.
Term: The Agreement would be in effect from and after the Effective Date and shall
continue for six (6) months unless either Party terminates as set forth below.
Termination: Nether Party may terminate this Agreement without cause during the first six (6)
months after the Effective Date of this Agreement. In the event of a material breach,
the non-breaching Party may terminate this Agreement with sixty (60) days after
prior written notice of such breach to the other Party.
Confidentiality: This Summary of Terms is not allowed to be disclosed in detail or copied to any
other parties not already aware of the general terms of the Transaction without
the prior written consent of each Partner.
</TABLE>
Agreed, Hong Kong, October 23, 1999
/s/ Nis Peter Lorentzen
- -------------------------------------
Nis Peter Lorentzen
Managing Director
TVSN China (Holdings) Ltd.
/s/ Danny Toe
- -------------------------------------
Danny Toe
President and Chief Operating Officer
MyWeb Inc.com
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<PAGE>
MYWEB INC.COM
http://www.mywebinc.com
1 May 1999
Danny Toe Teow Teck
Present
Dear Danny,
LETTER OF OFFER
We are pleased to offer you the position of Chief Executive Officer of MyWeb
Asia Pte Ltd. and Chief Operating Officer of MyWeb Inc.com.
Your initial employment will be MyWeb Asia Pte Ltd. You will be re-assigned to
China to assist in the operation of our subsidiary in China, if required.
Your monthly salary, under MyWeb Asia Pte Ltd., will be US$6,000.00 with a
monthly travel allowance of US$1,000.00 with effect from the date of your
commencement. The package is inclusive of all amounts payable pertaining to
statutory requirements such as CPF.
Enclosed is a detailed memorandum of the terms and conditions of our employment
for your reference. We hope you will view your employment with us as an
opportunity to grow in an organization which prides itself of its progress
policy for recognizing performance.
We are glad to have you with us and we look forward to a long and rewarding
association with you.
Yours sincerely,
/s/ T.S. Wong
- -------------------------
T.S. Wong
Chief Executive Officer
MyWeb Inc.com
<PAGE>
TERMS AND CONDITIONS OF EMPLOYMENT
- ----------------------------------
Employee Name : Danny Toe
Position : CEO, MyWeb Asia Pte Ltd
Commencement Date : 1 May 1999
Commencement Salary : US$6,000.00 basic and US$1,000 travel allowance (the
package shall be inclusive of CPF portion. All
further obligation of CPF payment shall be borne by
the employee)
Probation : 3 Months
Increment : At company's discretion
1. PROBATIONARY PERIOD & NOTICE OF TERMINATION
-------------------------------------------
You will remain on probation for a period of three months, during the
course of which, this engagement may be terminated either by the
company or yourself by two week's notice in writing or salary in lieu
thereof without any reason being assigned for such termination.
2. APPOINTMENT
-----------
An appointment to service of company is valid when the employee has:
a. received a letter of appointment and confirmation in writing; and
b. accepted the Company's Conditions of Employment and disciplinary rules.
3. HOURS OF WORK
-------------
Hours of work shall be:
Monday to Friday, 9:00am to 6:00pm and
Saturday, 9:00am to 1:00pm (Alternate Saturday)
4. ANNUAL LEAVE
------------
An employee shall be entitled to Fourteen (14) working days of annual
paid leave which only valid after completion of one year of continuous
service.
<PAGE>
5. MEDICAL LEAVE
-------------
An employee shall be eligible for paid sick leave not exceed the
aggregate of Fourteen (14) days in each calendar year. Sick leave will
be granted only on the recommendation of the registered medical
practitioner. Claim of Medical expense amounts should not exceed
S$25.00 per claim.
6. SAFETY
------
An employee shall observe such safety regulations as may from time to
time be laid down by the Company or relevant regulation.
7. PROVIDENT FUND
--------------
Contribution to the Provident Fund by the Company and employee shall be in
accordance with the law.
8. CONFLICT OF INTEREST
--------------------
An employee shall not take up any part-time employment on remuneration
basis or participate in any activities which can create a conflict of
interest in respect of his employment with the Company.
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<PAGE>
MERGER
COMMUNICATIONS
MEDIA RELATIONS COOPERATION AGREEMENT
1. PARTIES INVOLVED AND THE PURPOSE OF COOPERATION
This Media Relations Cooperation Agreement (the "Agreement") is by and between
Merger Communications, Inc. ("Merger") and Asia Media Communications, Ltd. (the
"Company").
The object of the Agreement is to increase the Company's visibility and
awareness of the Company and its products and services by obtaining publicity
for the Company, only as approved by the Company.
2. DUTIES
Merger's sole duty is to take care of the Company's media relations activities
according to this Agreement.
2.1 PRESS RELEASES
Merger will produce as many press releases as, in its sole discretion, it deems
necessary and appropriate. The preparation of these press releases will take
place using material and information provided by the Company and may include
additional information that Merger finds through its research. Press releases
must be approved by the Company in accordance with Section 3 hereof before being
delivered to the media by Merger. The Company is completely responsible for any
and all legal notices and/or disclaimers that should be included in its press
releases, or any other printed material, and assumes all liability for such.
Merger may print the press releases or other printed material on the Company's
letterhead and use the Company's envelopes for these operations. Merger may also
imprint the press releases or other written materials with the Company's logos
for electronic distribution. When appropriate, Merger will mail the press
releases via First Class mail to the media and is responsible for the mailing
expenses of those press releases.
Expenses for distributing up to three (3) press releases per month via newswire
service and for sending faxes and e-mail are included in the fees set forth in
Section 8 hereof. Merger is responsible for all expenses related to the printing
of press releases.
2.2 ARTICLES
Merger will attempt to arrange for as many journalists in the appropriate media
to cover the Company and all related issues and stories in a manner that
enhances the Company's image, awareness and perceived value. Merger will contact
freelance journalists and journalists at key
<PAGE>
media through phone conversations and via fax and mail to introduce article
ideas representing the Company and its products, services and technology. Other
article ideas that will promote the Company or its products, services and
technology in the context of a related story will also be offered to the
journalists in the same manner. Article ideas and other material must always be
approved by the Company in accordance with Section 3 before being delivered to
the media.
2.3 CLIPPING SERVICE & REPORTING
Merger will arrange for and pay for a press clipping service for the Company of
all corresponding articles involving the Company or its products, services and
technology. Merger will furnish the Company with copies of all Company-related
articles published during the Agreement.
3. APPROVAL BY THE COMPANY
Each final draft of any document to be delivered to the media will bear the
following language:
"I have carefully read and reviewed the statements set forth in the attached
document dated ___________________. Such statements are complete and accurate in
all material respects and I am not aware of any factor or circumstance that
would render any of the statements made therein false or misleading."
which must be executed and returned to Merger prior to the release of the
document.
4. LIABILITY
Merger's activities are strictly Media/Public Relations-related. Because
Merger's activities are directed by and pre-approved by the Company, and are
based on the information it receives from the Company, Merger assumes no
liability or responsibility related to said activities, or any consequences
related to said activities, or their use or misuse.
5. ANTI-RECRUITING
The Company will not recruit any Merger employee or other Merger affiliated
personnel during or for six (6) months after the termination of this Agreement.
6. HANDING THE AGREEMENT CONTRACT TO A THIRD PARTY
This Agreement cannot be released to third party without written approval of the
non-releasing party. This Agreement will be written in two identical copies, one
for both parties involved.
7. THE VALIDITY OF THE AGREEMENT
This effective date of this Agreement is 2/24/99 and it will continue in full
force and effect until terminated by Merger or the Company through the means
outlined in this Agreement. This
-2-
<PAGE>
Agreement can be terminated for any reason, by either party, after 5/24/99 by
giving the other party ninety (90) days written notice.
8. FINANCIAL INFORMATION
For the above media relations services, the Company will pay Merger the
following consideration per month: [***]. This compensation arrangement shall
remain in place for as long as this Agreement is valid. The above prices do not
include taxes.
[***]
Any additional out-of-pocket expenses, such as, but not limited to, additional
newswire services charges (any charges over three releases per month), travel,
professional still photography or video production or editing, etc., shall be
pre-approved by the Company before being undertaken. These additional expenses
shall be billed to the Company immediately and payment for such is due to Merger
within fourteen (14) days of the Company's receipt of each corresponding
invoice.
9. MISCELLANEOUS
9.1 NOTICES.
All reports, communications, requests, demands or notices required by or
permitted under this Agreement shall be in writing and shall be deemed to be
duly given on the date same is sent and acknowledged via hand delivery,
facsimile or reputable overnight delivery service (with a copy simultaneously
sent by registered mail), or, if mailed, five (5) days after mailing by
certified or registered mail, return receipt requested, to the party concerned
at the following address:
Merger Communications, Inc.
1770 St. James Place, Suite 515
Houston, TX 77056
Tel- (713) 267-2328
Fax: (713) 572-2566
Attn: David Drake
- ------------
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
-3-
<PAGE>
Asia Media Communications, Ltd.
712 5th Ave., 7th Floor
New York, NY 10019
Te1: (212) 582-3400
Fax: (212) 265-4035
Attn: Edward J. Tobin
Any party may change the address to which such notices and communications shall
be sent by written notice to the other parties, provided that any notice of
change of address shall be effective only upon receipt.
9.2 INTEGRATION.
This Agreement sets forth the entire Agreement and understanding between the
parties, or to the subject matter hereof and supercedes and merges all prior
discussion, arrangements and agreements between them.
9.3 AMENDMENTS.
This Agreement may not be amended or modified except by written instrument
signed by each of the parties hereto.
9.4 INTERPRETATION.
This Agreement shall be construed by and interpreted in accordance with the laws
of the State of Texas, without regard to principles of conflict of law. The
headings given to the paragraphs of this Agreement are for the convenience of
the parties only and are not to be used in any interpretation of this Agreement.
9.5 JURISDICTION.
The parties hereby (i) agree that the State and Federal courts sitting in the
State of Texas, County of Harris shall have exclusive jurisdiction in any action
arising out of or connected in any way with this Agreement; (ii) each consent to
personal jurisdiction of and venue in such courts in any such matter; and (iii)
further agree that the service of process or of any other papers with respect to
such proceedings upon them by mail in accordance with the provisions set out in
Article 9.1 hereof shall be deemed to have been duly given to and received by
them five (5) days after the date of certified mailing and shall constitute
good, proper and effective service.
9.6 SEVERABILITY.
In the event that any one or more provisions of this Agreement shall be held
invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
-4-
<PAGE>
9.7 WAIVER
No failure or delay, on the part of either party in exercising any power or
right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No waiver
by either party of any provision of this Agreement, or of any breach of default,
shall be effective unless in writing and signed by the party against whom such
waiver is to be enforced. All rights and remedies provided for herein shall be
cumulative and in addition to any other rights or remedies such parties may have
at law or in equity.
9.8 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of which taken
together shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this 23
day of February, 1999.
Merger Communications, Inc. Asia Media Communications, Ltd.
By: /s/ illegible By: /s/ illegible
------------------------------- -----------------------------
Jukka Tolonen, President Name:
Title:
