EXHIBIT 10.2
JOINT VENTURE AGREEMENT
BETWEEN
KING INTERNATIONAL, INC.
AND
DELTA-OMEGA TECHNOLOGIES, LTD.
FOR
CHEMICALS & SERVICES PROJECTS
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS
ARTICLE 2 ASSOCIATION OF THE PARTIES
ARTICLE 3 TERM OF THE JOINT VENTURE
ARTICLE 4 PREPARATION AND SUBMITTAL OF THE PROPOSAL
ARTICLE 5 ORGANIZATION OF THE JOINT VENTURE
ARTICLE 6 INTERESTS, RIGHTS, AND RESPONSIBILITIES
ARTICLE 7 COMPENSATION AND PAYMENT
ARTICLE 8 FURNISHING OF MATERIALS AND EQUIPMENT
ARTICLE 9 BONDS, GUARANTEES, AND INSURANCE
ARTICLE 10 LIABILITIES AND INDEMNITIES
ARTICLE 11 CONSEQUENTIAL DAMAGES
ARTICLE 12 WORKING CAPITAL
ARTICLE 13 BANK ACCOUNTS OF THE JOINT VENTURE
ARTICLE 14 ACCOUNTING AND AUDITING
ARTICLE 15 DEFAULT
ARTICLE 16 BANKRUPTCY OF A PARTY
ARTICLE 17 DISTRIBUTIONS
ARTICLE 18 CONFIDENTIAL INFORMATION
ARTICLE 19 RIGHTS IN INFORMATION
ARTICLE 20 TAXES
ARTICLE 21 SUCCESSORS AND ASSIGNS
ARTICLE 22 GOVERNING LAW
ARTICLE 23 DISPUTE RESOLUTION
ARTICLE 24 SEVERABILITY
ARTICLE 25 NON-WAIVER
ARTICLE 26 NOTICES
ARTICLE 27 ENTIRE AGREEMENT
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JOINT VENTURE AGREEMENT
This Joint Venture Agreement is entered into effective March 27, 2001 by and
between King International, Inc., a company organized under the laws of the
State of Delaware, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("KII") and Delta-Omega Technologies, Ltd., a company organized under the
laws of the State of Colorado, with offices at ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("DOT"). KII and DOT are referred to herein as "Party" or
jointly as the "Parties".
WHEREAS, the Parties intend to develop worldwide markets and clients
specifically for Projects that include supply of specialty chemicals and
management services; and
WHEREAS, the Parties recognize that DOT possesses management and technical
expertise in the supply of specialty chemicals and KII possesses design
engineering and project management services which, may meet the needs of Clients
on their Projects; and,
WHEREAS, the Parties desire to form a Joint Venture to prepare proposals
specifically for the furnishing of chemicals and services for the Projects and
upon award of contracts to the Parties, to execute the Projects; and
WHEREAS, the Parties desire to state the mutual rights and obligations of the
Parties with respect to said JV and the Projects;
NOW THEREFORE, in consideration of the mutual covenants made herein, the Parties
agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
1.1 The following terms shall, unless the context otherwise requires, have the
meanings designated:
(a) "Agreement" means this document.
(b) "JV" means the Joint Venture formed in accordance with this Agreement,
consisting of KII AND DOT, which shall be known as King-Delta
Technologies, Inc. ("KDT").
(c) "Clients" means individuals, organizations, governments, or companies
worldwide that are interested in KDT chemicals and services on their
Projects.
(d) "Projects" means any facilities worldwide planned by KDT Clients that
involve the supply of specialty chemicals and management services.
This includes but is not limited to the following applications:
o Oily residues
o Hydrocarbon spill response
o Hydrocarbon handling improvements
o Soil remediation
o Oil field cleaning and degreasing
o Routine cleaning
o Fire fighting
o Spent edible oils
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(e) "Contracts" means the Contracts to be entered into and between the
Clients and KDT or, with KDT's approval, any of KII's or DOT's
affiliates or subsidiaries or independent representative companies,
for completion of the Projects.
(f) "Proposals" means the proposals to be submitted by KDT, or its
representatives, to Clients to secure the awards of Contracts for the
Projects.
(g) "Work" means all work, including supply of chemicals and services that
is needed in order to fulfill the requirements of the Contracts.
(h) "Executive Panel" means the Executive Panel formed pursuant to Article
23 hereof having the powers and duties as provided therein.
(i) "Management Committee" means the Management Committee formed pursuant
to Article 5 hereof having the powers and duties as provided therein.
(j) "Project Manager" means the person appointed by the Management
Committee pursuant to Article 5 herein.
1.2 Terms importing the singular include the plural and vice versa where the
context requires.
1.3 The headings used in this Agreement are included for ease of reference only
and shall not affect the construction or interpretation hereof.
ARTICLE 2 - ASSOCIATION OF THE PARTIES
--------------------------------------
2.1 The Parties hereby associate themselves as JV partners and constitute
between themselves a JV for the purpose of submitting Proposals for
Projects, and if Contracts for the Project are awarded to the JV, entering
into the Contracts and performing the obligations contained therein.
Nothing contained in this Agreement shall create or be interpreted or
construed to limit the Parties respective rights to carry on their
individual businesses for their own benefit, including the performance of
other work for the Clients.
2.2 It is understood and agreed between the Parties that this Agreement extends
only to the submittal of Proposals and fulfillment of the Work by the
Parties, or their designated representatives, on Contracts.
2.3 The Proposals shall be submitted, and the Contracts, if awarded to the
Parties, shall be entered into in the name(s) set forth in paragraph 1.1(e)
above. All money, equipment, materials, supplies and other property,
acquired by the JV, shall be held jointly by the Parties in such name(s).
Except as specifically provided elsewhere herein, the obligations of the
Parties under the Proposals and the Contracts shall be joint and several.
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2.4 The Parties affirm and agree that they will pursue the Contracts and
participate in the preparation of the Proposals exclusively with each
other; provided however that not withstanding the foregoing, each party may
exercise its rights and perform its responsibilities under current
contracts and contracts being negotiated. Each Party hereby agrees that it
will not submit competitive proposals or otherwise seek the award of the
Contracts either alone or with third parties without the express written
consent of the other Party.
2.5 The Parties will perform Work as an integrated team in accordance with a
mutually agreed Project execution plan, which may be modified as approved
by the Management Committee. During the execution of the Project, each
Party shall adhere to and abide by the terms and conditions of the
Contract.
2.6 No Party shall have the authority or right to borrow money on behalf of or
in the name of the JV or the other Party, nor shall any Party pledge the
credit, assets or receivables of the JV or the other Party, nor shall any
Party assume, create or undertake any obligation of any kind, either
expressed or implied, on behalf of or in the name of the JV or the other
Party without the express, prior written consent of all Parties or, where
applicable, third parties.
2.7 The Parties, at a later date, may mutually agree to incorporate KDT. The
Parties also agree to capitalize on the existing affiliations and clients
of each Party to the benefit of the JV.
ARTICLE 3 - TERM OF THE JV
--------------------------
This Agreement shall automatically terminate and become null and void two
calendar years after its effective date. But this Agreement will be renewable
yearly upon written agreement of the Parties. Additionally this Agreement shall
be null and void upon 90 day written notice by either Party to the other Party.
This Agreement will also not be valid for any specific Proposal or Contract
should the Parties fail to agree on the terms of that specific Proposal or
Contract as provided in Article 4, or if that specific Proposal is rejected by
the Client, or is not accepted by the Client within the time specified or any
agreed extension thereof, or if the Project is cancelled or awarded to a third
party. However, not withstanding the foregoing, KDT's obligations on projects
that are not yet complete will continue in effect until completion. At the end
of all such obligations, any assets remaining in KDT will be distributed in
accordance with the ownership of KDT defined in Article 6.1 herein.
ARTICLE 4 - PREPARATION AND SUBMITTAL OF THE PROPOSALS
------------------------------------------------------
4.1 The Parties agree to work together in good faith to prepare Proposals,
which are acceptable to the Parties. The Proposals shall be submitted only
with the written approval of all Parties. If the Parties cannot in good
faith reach agreement on the terms of any specific Proposal, that Proposal
shall not be submitted by the JV. In such event, either Party may submit a
proposal for the Work either alone or, in combination with another party.
Failure to agree on the terms of the Proposal shall not be subject to
arbitration or litigation.
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4.2 The Parties will jointly define and price the scope of Work, and each Party
will freely share all information pertinent to the preparation of the
Proposals with the other Parties. The Parties will jointly develop and
agree upon risk factors, contingencies and profit for the entire Projects,
in order to define the commercial basis of the Proposals. All Proposals
shall build into the pricing the cost of submitting the proposals and
provide for profit margins acceptable to the parties. No proposal shall be
submitted that cannot substantially ensure that it can be profitable.
4.3 After the submission of the Proposals to the Clients, no Party shall vary
or seek to vary the same without the written consent of the other Parties.
4.4 If any Client accepts the JV's Proposal and awards the Work to the JV, the
Parties shall be obligated to enter into good faith contract negotiations
with the Client. The Management Committee shall designate a contract
negotiating team to represent the Parties in negotiations with the Client.
If the Parties are unable in good faith to agree on the terms and
conditions of any specific Contract with a Client, any Party may enter into
contract negotiations with the Client, either alone, in combination with
another party. Failure to agree on the terms of the Contract shall not be
subject to arbitration or litigation.
4.5 If a Contract is awarded to the JV, the Parties agree that, either together
or through one Party, or through third parties, appropriate corporate
guarantees will be furnished for the performance of the Contract, if
requested by the Client. If a Contract is awarded to the JV, the Parties
agree to furnish or have a third party furnish appropriate corporate
guarantees for the performance of the Contract, if requested by the Client.
4.6 Each Party shall individually bear all costs it may incur in preparing the
Proposals and securing the award of the Contracts. No reimbursement of any
such Proposals and pre-award costs will be made to any Party by the other
Party or by the JV unless an award is made and as expressly agreed in
writing and signed by an authorized representative of each Party. The
Management Committee may, at a later date, fund the on-going business
development costs of the JV with the agreement of the Parties.
ARTICLE 5 - ORGANIZATION OF JV
------------------------------
5.1 The management of the JV shall be conducted pursuant to policies
established by the Parties acting through a Management Committee. The
Management Committee will be comprised of two representatives from each
Party and will be chaired on a yearly rotational basis between a KII and
DOT representative starting with ▇▇▇▇▇ ▇▇▇▇ C. ("Chairman"). Each Party
hereby designates the following representatives to serve on the Management
Committee:
Party Representative
----- --------------
KII ▇▇▇▇▇ ▇▇▇▇ C.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
DOT ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
5.2 Each Party may, at any time, substitute a temporary or permanent alternate
representative in place of its above-named representative by serving
written notice to the other Parties. Each Party's representative or
alternate representative on the Management Committee is hereby granted and
shall hereafter possess full power and authority to act for and on behalf
of the Party he or she represents.
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5.3 The members of the Management Committee will not be reimbursed by the JV
for their salaries or expenses. No representative to the Management
Committee shall be individually liable to the JV or to any of the Parties
except in the case of gross negligence or intentional misconduct.
5.4 The Management Committee will prepare a business plan, which will include
but not be limited to sales, marketing, and financial plans for the JV. It
will also prepare a master plan for prioritizing the various phases of
implementation of the business plan and of KDT. The Management Committee
will establish the procedures for efficiently and effectively evaluating
prospective Clients and Projects for pursuit of possible Proposals and
Contracts.
5.5 The frequency, time and location of meetings shall be as agreed by the
members of the Management Committee from time to time. Meetings of the
Management Committee shall not be held unless each Party is represented;
however, if a Party's representatives are not available, he meeting shall
stand adjourned until the following business day at the same time and
place. In the event the unavailable representative is still unable to
attend such rescheduled meeting, it shall again be rescheduled to the next
business day at the same time and place, at which time the meeting shall
proceed regardless of the unavailability of a representative. Meetings of
the Management Committee may be held by telephone conference call.
5.6 Each representative on the management committee shall have one vote on
matters coming before the Management Committee. It is the intent of the
Parties that all actions of the Management Committee be the result of
unanimous agreement of the Parties' representatives. However, if the
representatives do not reach unanimous agreement on an issue requiring
action, the Chairman shall have the responsibility and authority to resolve
the matter. In such event, any Party's representative may object to such
resolution by submitting the issue to the Executive Panel as provided in
Article 23 of this Agreement.
5.7 At the beginning of each meeting, the Chairman will appoint one of the
members to take down the minutes of the meeting. The proposed minutes will
be distributed to the members of the Management Committee as quickly as
reasonably possible, but in no event less than one week prior to the next
meeting. The minutes will then be discussed and approved with any changes
at the next meeting.
5.8 Project Managers shall be appointed by the Management Committee, and shall
be charged with the overall responsibility to direct the JV's performance
of the Contracts. The Project Managers shall manage and coordinate the
execution of the Work and make all day-to-day operational decisions
concerning the performance of the Contract in accordance with the
principles, rules, policies and decisions of the Management Committee. The
Management Committee may, in writing, delegate such of its responsibilities
and duties, as it deems appropriate, to the Project Manager.
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5.9 All correspondence between the JV and the Clients and other parties
concerning the Projects shall be through or by the Project Managers, unless
otherwise directed by the Management Committee.
5.10 The Project Managers shall submit written or oral reports to the Management
Committee at such times and such reports will contain such information as
may be requested by the Management Committee.
5.11 The JV shall have no employees, although personnel assigned to the Projects
shall be under the general direction of the Project Managers. All personnel
assigned to the Projects shall remain on the payrolls of the Parties. Each
party is acting in the capacity as an independent contractor of the JV and
employees of one Party shall not be considered employees of the other party
or of the JV under any circumstances. Each party shall be responsible for
payment of worker's compensation disability benefits, unemployment
insurance, and withholding and/or paying employment related taxes for its
employees. The Parties shall not give any direction to or take any other
action to divert such assigned personnel from their responsibilities as
assigned by the Project Managers. Each Party will provide sufficient
numbers of qualified personnel to properly carry out its portion of the
Work. In no event shall a Party withdraw any key personnel assigned to the
Projects without the approval of the Management Committee. The scope of
Work for which each Party shall be responsible on Projects is generally
described as follows. The Parties agree that the below split of
responsibilities is general in nature, and that a detailed split of
responsibilities will be defined by the Management Committee for each
Project.
DOT KII
--- ---
Chemicals Supply Services Supply
Process Design Basis Basic Engineering
Chemicals Procedures Detailed Engineering Mgmt.
Chemical Equipment Specifications Equipment Procurement Mgmt.
Chemicals Delivery/Commissioning Construction Mgmt.
Chemicals Start-up Assistance Plant Start-up/Operation
Chemicals Specialist Project Management Team
Chemical Sales Coordination Project Sales Coordination
Domestic Sales Coordination International Sales Coordination
ARTICLE 6 - INTERESTS, RIGHTS, AND RESPONSIBILITIES
---------------------------------------------------
6.1 Except as otherwise specifically provided elsewhere herein, the interests
of the Parties in the profits derived from the performance of the
Contracts, and in any property and other assets acquired by the JV in
connection with the Work, and in any losses and/or liabilities incurred in
the performance of the Contract, shall be allocated as follows. The
interest in the JV represented by each percentage figure below shall be
referred to hereinafter as the Party's "Participating Interest".
PARTY PERCENT
----- -------
KII 50%
DOT 50%
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6.2 The Parties agree that in the event any losses arise out of or result from
the submission of the Proposals and/or the performance of the Contracts,
each Party hereto shall assume and pay the share of such losses that is
equal to its Participating Interest. The Parties' liability for losses
shall continue as to any claims which may arise at any time against the JV
or the Parties in connection with this Agreement or the Contracts, whether
before, during or after the performance of the Contracts.
6.3 If for any reason, such as purchase of a bid request document, a Party is
required to pay any costs in excess of those required by its Participating
Interest which arise out of or are directly connected with the submission
of the Proposal and/or the performance of the Contracts, the other Party
shall promptly reimburse the overpaying Party, so that each member of the
JV will have paid its share of such costs in accordance with its
Participating Interest.
6.4 Capital Contributions - at the sole discretion of the Management Committee,
the parties may be required to make contributions to the capital of the
Company. All contributions shall be in relationship to the Party's
Participating Interests ("Capital Call"). No Party shall be required to pay
its capital contribution unless the Capital Call provides a reasonable
manner of satisfying the individual Party's responsibilities having taken
into consideration its present financial circumstances and its anticipated
Profit distributions to be received from the JV activities. Nothing
contained herein shall preclude the JV from borrowing Working Capital from
third party lenders with the approval of the Management Committee. Failure
of a party to comply with the terms of a proper Capital Call shall subject
that party to the requirements of Article 15 contained hereinafter.
ARTICLE 7 - COMPENSATION AND PAYMENT
------------------------------------
7.1 Cost Recovery - The Parties will recover the actual costs they incur in
performing the Work from the JV as stated below. Invoices from the Parties
to the JV shall be submitted monthly unless otherwise determined by the
Management Committee.
7.2 Direct US Reimbursable Personnel - Each Party shall recover the actual cost
of salaries and wages paid to its US home office direct reimbursable
personnel in connection with the Work. Such salaries and wages are the
hourly base wage or salary amounts actually paid by a Party to its
employees, exclusive of any adjustments, such as but not limited to,
overtime, bonuses, uplifts for foreign assignments, tax equalization, and
subsistence allowances. Any personnel, whether part- or full-time, or
permanent or temporary, that are directly assigned to the Projects or doing
Work for the Projects shall be considered reimbursable. All other US home
office personnel are included in the Overhead Cost markup described in
paragraph 7.4 below.
7.3 Payroll Burdens - Each Party shall recover its payroll burdens from the JV
at 35% of its billings for its US home office direct reimbursable salaries
and wages defined in 7.2. These payroll burdens include all payroll taxes,
insurances, employee benefit costs, and other similar costs payable by a
Party on behalf of its employees, whether mandated by statute or as part of
its established employee benefit program.
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7.4 Overhead Costs - Each Party shall recover its overhead costs from the JV at
25% of the sum of its billings for its US home office direct reimbursable
salaries and wages and payroll burdens as defined in 7.2 and 7.3. These
overhead costs include all general corporate and administrative costs,
including, but not limited to office and facility rental and related costs,
operating costs, non-chargeable management costs, such as services of the
executive officers and department heads, general administrative costs,
computer support, research and development, non-project accounting and
legal services, and other indirect staff, and all other recoverable costs
of any kind or character which cannot be considered as falling into any
other cost category identified herein.
7.5 Project Non-Labor Costs - Project related non-labor costs that are
furnished by the Parties shall be invoiced to the JV at actual cost without
markup. Project non-labor costs include all home office computer costs
(software, hardware, 2D and 3D CAD, network, etc.) that are directly
related to a project and not part of overhead costs.
7.6 Travel and Assignment Costs - Travel and assignment costs will be
reimbursed to the Parties in accordance with travel policies established by
the Management Committee.
7.7 Chemicals and Equipment - Chemicals, materials, and equipment furnished by
the Parties shall be invoiced to the JV at actual cost in accordance with
the following:
Description Pricing
----------- -------
Raw Material Pass Through at Cost
Freight to Deliver Raw Materials Pass Through at Cost
Blending Charges $1.75/gallon
Packaging and Labeling Costs:
a. Pails (any volume) $1.50/gallon
b. Drums (less than 220 gallons) $0.40/gallon
c. Drums (greater than 220 gallons) $0.30/gallon
d. Bulk (550 gallon tote tank) $0.25/gallon
e. Labels $2.00 each
f. Pallets Freighted Vendor Price + 10%
Container Costs:
a. 5 gallon pails Freighted Vendor Price + 10%
b. 55 gallon drums Freighted Vendor Price + 10%
c. Tote tank rental $5.00 per day
Overhead Costs 10% of Above Totals
All products sold F.O.B. Broussard, Louisiana
7.8 Subcontracts - Subcontracts for technical services, construction, and other
services issued by the Parties shall be invoiced to the JV at actual cost
without markup.
7.9 Other Costs - Reproduction costs shall be reimbursed to the Parties in
accordance with the Parties' established rates. Long distance telephone and
fax shall be reimbursed at actual cost. Costs, other than those specified
above, that have been approved or ratified by the Management Committee and
incurred in connection with performance of the Contracts, may be invoiced
to the JV.
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7.10 Invoice Procedures - Each Party shall invoice the JV in the currency in
which the costs were incurred, and shall be paid in that currency unless
otherwise determined by the Management Committee. All invoices from the
Parties to the JV shall be in accordance with procedures promulgated by the
Management Committee, and shall include such supporting documentation as
the Management Committee may require.
7.11 Payment and Adjustments - The Management Committee will take all necessary
steps to insure that invoices for the Work are prepared and submitted to
the Clients in timely fashion and in accordance with the provisions of the
Contracts. The Management Committee will further take steps to insure that
payments received from the Clients are promptly deposited in the JV bank
account and that amounts due to the Parties under this Article 7 are
promptly paid. Any adjustment by the Clients to a JV invoice shall be
passed through to the Party whose ▇▇▇▇▇▇▇▇ necessitated such adjustment.
7.12 Direct Non-US Reimbursable Personnel - Each Party shall recover the actual
cost of its non-US home office personnel, including salaries, wages,
burdens, overhead, uplift for foreign assignment, and tax equalization for
reimbursable personnel in connection with the Work. The Management
Committee will agree on such costs on a country-by-country basis as the
individual Proposals require.
7.13 Finder's Fee - A finder's fee will be paid to third parties that identify a
prospective Client based on the following sliding scale percentage of
cumulative payments actually received from that Client unless otherwise
approved by the Management Committee.
US $ Received Finder's Fee
------------- ------------
<$100,000 3%
> $100,000 & <$1,000,000 2%
> $ 1,000,000 1%
ARTICLE 8 - FURNISHING OF MATERIALS AND EQUIPMENT
-------------------------------------------------
8.1 All materials and equipment required to be furnished by the Parties or the
JV for the performance of the Projects shall be procured from third parties
in accordance with the following principles:
a. The Management Committee shall promulgate procurement guidelines,
directives and procedures for the Work. Where reasonable and
practicable, purchase orders and subcontracts shall be awarded on the
basis of competitive bids from pre-qualified bidders.
b. Items which are not being procured on the basis of competitive bids,
such as items of a proprietary nature, items which are available from
a limited number of qualified suppliers, or items for which timely
supply is critical to the proper performance of the Contracts, shall
be procured in accordance with specific directives from the Management
Committee.
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c. Equipment and temporary facilities may be obtained by the JV through
purchase or lease as the Management Committee may decide. Such
equipment and temporary facilities may be furnished by a Party,
provided such items are made available to the JV at fair market value,
and the Management Committee reviews and approves the transaction.
Unless otherwise agreed by the Management Committee, the Party
providing such equipment or temporary facilities shall properly insure
such items against loss, and shall include the cost of such insurance
in its pricing. Any loss to equipment or temporary facilities provided
by a Party shall not be allocated to the Parties in accordance with
Article 6, unless otherwise agreed in writing by the Management
Committee.
ARTICLE 9 - BONDS, GUARANTEES AND INSURANCE
-------------------------------------------
9.1 The JV or a Party or other parties individually, as circumstances may
dictate, shall execute such bonds, guarantees, indemnity agreements and
other documents (including applications therefor) as may be required in
connection with the submission of the Proposals and the performance of the
Contracts. The liability of the Parties or parties for obligations arising
from such bonds, guarantees and indemnity agreements shall be allocated in
accordance with each Party's or party's Participating Interest. Such
guarantees may include but not be limited to unit or global process,
performance, schedule, and cost. Such bonds may include but not be limited
to bid and performance bonds.
9.2 In the event that the JV is unable to obtain any necessary bonds or
guarantees, the Management Committee shall designate the Party or parties
to establish such bonds or guarantees in the name of the JV. All costs of
such bonds or guarantees shall be reimbursable to such Party or parties by
the JV.
9.3 The Management Committee shall determine the amount, type and limits of
insurance coverage needed to protect the Parties against any risk of loss
that will be assumed under the Contracts. If appropriate and beneficial to
the JV, the parties shall consider extending their respective insurance
programs to the JV for the Projects. The net cost of such insurance shall
be paid by the Parties in accordance with their Participating Interest. The
policies of insurance obtained shall provide that the insurers shall waive
all rights of subrogation against each of the Parties hereto and their
officers, employees, representatives, agents, affiliates, parents,
subsidiaries, and surety company or companies.
ARTICLE 10 - LIABILITIES AND INDEMNITIES
----------------------------------------
10.1 Except in the case of gross negligence or willful misconduct by a Party,
liability for personal injury, death or loss of or damage to property
arising from this Agreement or the Contracts shall be shared by the Parties
in accordance with the provisions of Article 6.
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10.2 Except in the case of gross negligence or willful misconduct by a Party, or
in the case of breach of this Agreement by a Party, it is agreed that no
Party shall bring a claim against another Party in connection with this
Agreement or the Contracts.
ARTICLE 11 - CONSEQUENTIAL DAMAGES
----------------------------------
Neither Party shall be liable to the other Party hereunder in contract, tort
(including negligence), strict liability, warranty, or otherwise, for any
special, indirect, incidental, or consequential damages, such as but not limited
to loss of product, loss of anticipated revenue or profits, loss of use,
non-operation or increased expense of operation of equipment or systems, cost of
capital, or cost of purchased or replacement equipment or systems.
ARTICLE 12 - WORKING CAPITAL
----------------------------
The Management Committee shall establish the policy and procedures for planning,
controlling and monitoring cash flow for the Projects, and shall determine the
amount of funding required to carry out and perform the Contracts and meet any
financial obligations, which may arise therefrom. Such funding amounts shall be
referred to herein as "Working Capital". If at any time, after 6 months from the
effective date of this agreement, in the judgment of the Management Committee,
contributions of Working Capital are required from the Parties, the Management
Committee shall issue written notices to the Parties stating the sums to be paid
to the JV by the Parties, and the date by which such sums are required;
provided, however that no such sums shall exceed the expected profits to be
distributed to the parties. Unless otherwise provided by the Management
Committee, each Party's share of such Working Capital requirements shall be
equivalent to its Participating Interest in the JV as set forth in Article 6
hereof. Contributions of Working Capital shall be deposited into the JV bank
account(s) to be maintained pursuant to Article 13 hereof.
ARTICLE 13 - BANK ACCOUNTS OF THE JV
------------------------------------
13.1 All contributions of Working Capital made by the Parties and all other
funds received by the JV in connection with the performance of the
Contracts shall be deposited in an account or accounts in such bank or
banks as the Management Committee may designate. The JV bank account(s)
shall be in the name of the JV and be maintained separately from any bank
accounts now maintained by any of the Parties.
13.2 The Management Committee shall establish procedures for the maintenance of
such bank accounts, including designation of those individuals with
signatory authority.
ARTICLE 14 - ACCOUNTING AND AUDITING
------------------------------------
14.1 The Management Committee shall cause proper books of account for the JV to
be kept relating to the performance of the Contracts and to the operation
of the JV. Such books of account shall be structured to provide proper
internal control and shall be properly kept in accordance with best
business practices.
14.2 The books of account of the JV shall be made available, at reasonable
times, for inspection by the representatives of the Parties hereto. The
Management Committee may provide for periodic audits of said books of
account, and any Party, at its own expense and upon written notice to the
Management Committee, shall be entitled to audit said books of account for
any reason. The Management Committee may, at its discretion, contract one
of the Parties to provide its accounting personnel for the accounting needs
of the JV.
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14.3 Proper and complete books of account relating to Work performed by each
Party pursuant to this Agreement shall be maintained by each Party at its
principal place of business, and shall be opened to inspection by any other
Party, or its designated representatives, at any reasonable time and at the
requesting Party's expense. Said inspection shall not be permitted for
items included in any fixed rate, standard charge or percentage multiplier
agreed to by the Parties.
ARTICLE 15 - DEFAULT
--------------------
15.1 In the event a Party at any time is in material breach or default under
this Agreement, or fails to timely provide its full share of any Working
Capital requirements, such Party (the "Defaulting Party") shall be
considered in default of this Agreement, and the following shall apply:
a. Said Defaulting Party's right to receive any distribution of profits
of the JV, as provided in this Agreement, shall be and remain
suspended until reinstated as provided in paragraph 15.3 below.
b. The Defaulting Party shall continue to have its representatives attend
Management Committee meetings, but such representatives shall have no
right to vote or otherwise participate in Management Committee
decisions until the Defaulting Party's rights have been reinstated as
provided in paragraph 15.3 below. Each of the Parties agree that
during any period of suspension of its voting rights, a Defaulting
Party shall be deemed to have waived any right to make a claim or
object to any action taken by the Management Committee which does not
constitute gross negligence in the management of the affairs of the
JV.
c. The non-defaulting Party ("Contributing Party") may, but shall have no
obligation to, advance on behalf of the Defaulting Party all or part
of the Defaulting Party's delinquent Working Capital contribution.
Upon tendering such amounts to the JV, the Contributing Party shall
have the right to recover from the Defaulting Party (i) the amount of
any Working Capital so advanced, plus (ii) interest on such amount at
the prime rate of interest charged from time to time by the Bank of
America (but not exceeding the maximum rate of interest allowed by
law) accruing from the date of such advance, plus (iii) all costs,
expenses and fees (including reasonable attorneys' fees) incurred in
connection with any such advance and the recovery thereof.
d. The Management Committee may elect to have the JV borrow any shortage
of Working Capital caused by the Defaulting Party from a third party
lender and upon such terms as the Management Committee shall decide.
In the event the Management Committee should elect this option, all
costs and expenses, including interest, loan fees and attorneys' fees
incurred by the JV in obtaining such loan shall be the sole obligation
of the Defaulting Party.
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e. In order to secure any advances made by the Contributing Parties in
accordance with paragraph 15.1(c) above and any loans obtained by the
JV in accordance with paragraph 15.1(d) above, the Parties hereby
agree that the Defaulting Party's right in and to any profits from the
JV, as provided in this Agreement, shall, upon payment of any such
advances by the Contributing Parties or upon receipt of borrowed funds
by the JV, be automatically assigned to the Contributing Parties
and/or the JV as their interests may appear. The Parties agree that
this Agreement shall of itself, without the necessity of further
formality or writing, constitute the creation of the assignment in and
to all such profits described herein.
15.2 Any advance and/or loan, including all costs and expenses connected
therewith, described in paragraph 15.1 above, shall, unless otherwise
agreed, be payable by the Defaulting Party upon demand by the Contributing
Parties or the JV. Should full repayment of such amounts not be immediately
forthcoming upon demand, the Party making the demand may proceed to offset
the obligation with payments from assigned profits, proceeds, and other
distributions of the JV and/or seek any other remedies provided in this
Agreement and at law or in equity.
15.3 The Defaulting Party's right to receive profits of the JV and to vote at
Management Committee meetings shall be reinstated upon the occurrence of :
Payment to the JV and/or the Contributing Party of (i) all actual
damages resulting from the default, (ii) all sums advanced by the
Contributing Party pursuant to paragraph 15.1(c), (iii) all sums
borrowed by the JV pursuant to paragraph 15.1(d), plus (iv) all
accrued interest, costs and expenses, in cash or out of the Defaulting
Party's interest in and to the profits of the JV.
Any sums so received shall be first credited to the recovery of accrued
interest, costs and expenses incurred in connection with any advance and/or
loan and then to reduction of the principal amount of any advance and/or
loan. Provided, however, the JV and the Contributing Parties shall have,
prior to full reimbursement of all sums, interest, costs and expenses
described above, an irrevocable option and the absolute right to exercise
the right of assumption described in paragraph 15.4 below.
15.4 Notwithstanding a Defaulting Party's right to reinstatement as provided in
Paragraph 15.3 above, at any time and from time to time, the Contributing
Parties and/or the JV, so long as the Defaulting Party remains in default,
shall have the absolute and unconditional right, to the extent of any
advances made and/or loans obtained plus accrued interest thereon and other
costs and expenses connected therewith, to assume all right, title and
interest to all or a percentage share of the Defaulting Party's
Participating Interest in the profits of the JV. The percentage share of
that portion of the Defaulting Party's percentage interest in JV profits to
be assumed shall be calculated by dividing the advances and/or loans made
by the Contributing Parties or JV, together with all costs, expenses and
interest accruing thereon to date of assumption, by the sum of all payments
of Working Capital made by or on behalf of the Defaulting Party to the JV.
Notwithstanding the foregoing, no assumption by the Contributing Parties in
accordance with this paragraph 15.4 shall in any way affect the Defaulting
Party's share or percentage of liability for additional Working Capital or
losses and expenses resulting from performance of the Contracts, or any
claim or liability incurred in connection with this Agreement as originally
provided in Article 6 of this Agreement.
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ARTICLE 16 - BANKRUPTCY OF A PARTY
----------------------------------
If a Party hereto shall dissolve or take advantage of any bankruptcy,
reorganization, composition or arrangement statute, then such Party shall be
considered a Defaulting Party in accordance with Article 15, and, to the extent
permitted by applicable law, shall be subject to the provisions of Article 15.
ARTICLE 17 - DISTRIBUTIONS
--------------------------
17.1 Prior to completion of any Project, the Management Committee may direct the
distribution of any funds held by the JV to the extent they exceed the
operating requirements of the JV. Distribution shall be in accordance with
each Party's Participating Interest, subject to the terms of this
Agreement.
17.2 Upon completion of the Project, the liabilities of the JV and any
distributions to the Parties shall be settled in the following order of
priority.
1. Payment of all costs incurred by the JV, including payment of claims
not secured by insurance and the retention of proper reserves for
claims which have either been brought or may be reasonably anticipated
by the Management Committee to be brought against the JV or the
Parties; then
2. Establishing reasonable reserves for reasonable contingencies
determined to be necessary by the Management Committee; then
3. Repayment to each Party all sums advanced or contributed to the JV for
Working Capital; then
4. Distribution of profits to the Parties in accordance with each Party's
Participating Interest, subject to this Agreement. Any reserve funds
retained for claims or other contingencies which are thereafter
determined by the Management Committee to no longer be required shall
be similarly distributed.
ARTICLE 18 - CONFIDENTIAL INFORMATION
-------------------------------------
18.1 Subject to any applicable requirements of the Contracts, information
relating to this JV Agreement the Proposals or the Contracts which is
gathered, exchanged, or otherwise obtained by the Parties during the term
of this Agreement shall be maintained in confidence and shall not be
utilized except in furtherance of this Agreement. Such information will not
be disclosed to any third parties or to a Party's own employees except
where there is good faith need to know; provided however, that no Party
shall be liable for any utilization or disclosure if the information falls
into any of the following categories:
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a. Information which at the time of disclosure is or thereafter becomes
within the public domain other than by reason of the receiving Party's
wrongful act or omission.
b. Information which prior to disclosure hereunder was already in the
receiving Party's possession and was not received from the disclosing
Party, either directly or indirectly, under obligation of secrecy.
b. Information which is disclosed to the receiving Party without
restrictions on use or disclosure by a third party who is lawfully in
possession thereof and which information is not subject to
restrictions on disclosure or use.
c. Information of material nature that must be disclosed in accordance
with Security and Exchange Commission (SEC) regulations.
For the purposes of this Agreement, specific information disclosed shall
not be deemed to be in the public domain or in the prior possession of the
disclosing Party merely because it is embraced by more general information
in the public domain or by more general information in the prior possession
of the Party.
18.2 The Party receiving confidential or proprietary information shall protect
such information utilizing the same procedures it employs to prevent
disclosure of its own confidential or proprietary information.
18.3 Nothing herein shall grant to the receiving Party or the JV any rights in,
or license to use, any drawings, data, plans, ideas, methods or chemical
formulations disclosed pursuant to this Agreement. The Parties' rights in
respect thereof shall be subject to all rights of the patent owner and/or
licensor.
18.4 A Party shall not be restricted in releasing information in response to a
subpoena, court order, or similar legal process, but shall notify the other
Parties of the request or order for information before responding to same.
18.5 The confidentiality obligations provided in this Article 18 shall be in
effect for a period of five (5) years from the date of this Agreement and
shall survive the termination or expiration of this Agreement.
ARTICLE 19 - RIGHTS IN INFORMATION
----------------------------------
Except as otherwise provided herein or in the Contract, engineering documents,
drawings, and specifications prepared by a Party as part of the Work shall be
the property of the Party preparing same. A Party shall retain all right, title,
and interest in its standard drawings and details, designs, specifications,
databases, computer software, chemical formulations and any other proprietary
property.
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ARTICLE 20 - TAXES
------------------
20.1 The Parties will take whatever action is reasonably necessary to maintain
the JV's tax status as a partnership, including agreement on any required
elections under federal, state or local income tax laws.
20.2 The Management Committee shall take all necessary steps to prepare and file
federal and state income tax returns for the JV, and to insure that each
Party receives a copy of the final tax return as specified by law. Each
Party will be responsible for payment of taxes on income it received from
the Projects.
ARTICLE 21 - SUCCESSORS AND ASSIGNS
-----------------------------------
No Party hereto shall sell, assign or in any manner transfer its interest in the
JV without first obtaining the consent of the other Parties hereto, which
consent may be withheld with or without cause. Subject to the foregoing
provision, this Agreement shall inure to the benefit of and be binding upon the
Parties, their successors, trustees, assigns, receivers, and legal
representatives, but shall not inure to the benefit of any other person, firm or
corporation.
ARTICLE 22 - GOVERNING LAW
--------------------------
This Agreement shall be governed by the laws of the State of Texas, U.S.A.
ARTICLE 23 - DISPUTE RESOLUTION
-------------------------------
23.1 The Parties shall attempt in an amicable manner to adjust and settle any
disagreement that may arise between them under or in connection with this
Agreement. Any controversy or claim arising out of or relating to this
Agreement will first be referred in writing to the Management Committee for
its decision. In the event any dispute between the Parties is not resolved
by the Management Committee, any Party may submit such dispute to a panel
(the "Executive Panel") comprised of one senior level executive from each
Party. Submittal of the dispute shall be accompanied by designation of the
submitting Party's representative on the Executive Panel. The Executive
Panel shall convene within thirty (30) days of the submittal at such
location as the Parties may agree. The Executive Panel shall hear such
dispute at a time, place and under such procedural rules as the panel may
specify, and shall resolve the dispute only by unanimous consent of its
members, which action shall be binding on the Parties.
23.2 It is the intention of the Parties that the Executive Panel shall resolve
disputes without further legal proceedings. However, if the Executive Panel
is unable to reach unanimous agreement, any Party may elect to refer the
matter in dispute to binding arbitration in accordance with the Rules of
the American Arbitration Association, with proceedings to be held in
Houston, Texas.
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ARTICLE 24 - SEVERABILITY
-------------------------
In the event that any of the provisions, terms and conditions of this Agreement
may prove to become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions terms and
conditions hereof shall not in any way be affected or impaired.
ARTICLE 25 - NON-WAIVER
-----------------------
The failure on the part of any Party hereto, at any time, to require strict
performance and/or observance of any obligation, term, provision or condition
under this Agreement will neither constitute a waiver thereof nor affect in any
way the right of the respective Party to require such performance and/or
observance. The waiver by any Party of a breach of any obligation, term,
provision or condition hereunder shall not constitute a waiver or any subsequent
breach thereof or any other obligation, term, provision or condition.
ARTICLE 26 - NOTICES
--------------------
Any notice required or permitted, to be given under this Agreement shall be
deemed duly served if duly sent by registered mail, personal delivery, or other
means whereby receipt is recorded to the following address:
To KII: King International, Inc. Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ E-mail: ▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇
To DOT: Delta-Omega Technologies, Ltd. Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With copies to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ARTICLE 27 - ENTIRE AGREEMENT
-----------------------------
This Agreement constitutes the entire understanding and Agreement between the
Parties with respect to the subject manner hereof and supersedes all prior or
contemporaneous representations, understandings or agreements of any kind,
whether verbal or written. This Agreement shall not be modified except by
written amendment duly executed by authorized representatives of the Parties.
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IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives effective the date first written above.
KING INTERNATIONAL, INC. DELTA-OMEGA TECHNOLOGIES, LTD.
By: _____________________________ By: _____________________________
▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President & CEO Chairman & Co-CEO
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
President & Co-CEO
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