EXHIBIT 10.9
JOINT VENTURE AGREEMENT
THIS AGREEMENT made the 13th day of November,
2006.
BETWEEN:
1510848 ONTARIO INC., a corporation incorporated under the laws of the
Province of Ontario
("1510848")
- and -
CONSORTEUM INC., a corporation incorporated under the laws of the
Province of Ontario
("CONSORTIUM")
Background
Each of 1510848 and Consorteum have signed a Term Sheet dated August
21, 2006 (the "Term Sheet"), attached hereto as Schedule 'A", which sets out the
terms and conditions governing the joint venture partnership to enable cheque
cashing services for mobile coffee trucks in Canada
The Term Sheet contemplates that the parties will enter into a formal
Joint Venture Agreement.
The parties would like to enter into this simplified Joint Venture
Agreement as contemplated by the Term Sheet.
NOW THEREFORE, in consideration of the premises, the mutual covenants
contained in this Joint Venture Agreement and other consideration (the receipt
and sufficiency of which are acknowledged), the parties agree as follows:
ARTICLE 1
AGREEMENT TERMS
1.1 Agreement. Each party acknowledges and agrees that the terms,
conditions, rights and obligations in respect of this Agreement (and any rights
of renewal) shall be governed exclusively by this Agreement and the terms and
conditions set out in the Term Sheet, which is attached as Schedule "A" hereto
and the terms of which are incorporated into this Agreement.
1.2 Term. The initial term of this Agreement shall be four (4) years
and will be automatically renewed thereafter for two (2) year terms unless one
of the parties provides notice of termination of the partnership as provided in
Section 3.1 below.
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1.3 Costs of the Program. The costs associated with the cheque-cashing
program(the "Program") will be paid from total revenues.
1.4 Profits. All net profits on all programs will be split between
1510848 Inc and Consorteum on a 50/50 basis/
1.5 Responsibility.
Consorteum will be responsible for the following:
a) Software development;
b) Cheque cashing payment platform and settlement
process;
c) Payment processing and settlement with the drivers;
d) Manage partner company relationships;
e) POS payment processing discount rate;
f) Enable prepaid wireless and long distance to be sold
on the POS device;
g) Provide a prepaid MasterCard/Visa product;
h) Provide up to a $50,000 pilot float;
i) Future programs as determined; and
j) All client information will be jointly owned between
both parties and both parties must agree on any
release of information.
k) Consorteum will deliver a pilot ready solution by
January 15, 2007
1) Commercial solution by May 31, 2007
m) Full integrated handheld solution - TBD
1510848 Inc will be responsible for the following:
a) Point of Sale hardware;
b) Collection of cheques from drivers; and
c) Cashing of cheques and deposit into the float
account.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.11510848 Inc Warranties. 1510848 Inc represents and warrants to
Consorteum as follows (acknowledging that Consorteum is relying on the
representations and warranties of 1510848 Inc contained in this Agreement and
any agreement, certificates or other document delivered by 1510848 Inc pursuant
hereto in connection with this Agreement):
(a) 1510848 Inc has the capacity and authority and has
taken all necessary action to enter into, execute and
deliver this Agreement;
(b) this Agreement constitutes and the agreements and
other instruments contemplated herein when executed
will constitute valid and binding obligations of
1510848 Inc enforceable in accordance with the terms
hereof and thereof subject, however, to limitations
with respect to enforcement imposed in connection
with laws affecting the rights of creditors generally
including, without
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limitation, applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws and to the
extent that equitable remedies such as specific
performance and injunction are in the discretion of
the court from which they are sought; and
(c) no consent, licence, approval, order or authorization
of, or registration, filing or declaration with any
governmental authority that has not been obtained or
made by 1510848 Inc and no consent of any third party
is required to be obtained by the 1510848 Inc in
connection with the execution, delivery and
performance by the 1510848 Inc of this Agreement or
the consummation of the transactions contemplated by
the Program.
2.2 Consorteum Warranties. Consorteum represents and warrants to
1510848 Inc as follows (acknowledging that 1510848 Inc is relying on the
representations and warranties of Consorteum contained in this Agreement and any
agreement, certificates or other document delivered by Consorteum pursuant
hereto in connection with this Agreement):
(a) Consorteum has the capacity and authority and has
taken all necessary action to enter into, execute and
deliver this Agreement;
(b) this Agreement constitutes and the agreements and
other instruments contemplated herein when executed
will constitute valid and binding obligations of
Consorteum enforceable in accordance with the terms
hereof and thereof subject, however, to limitations
with respect to enforcement imposed in connection
with laws affecting the rights of creditors generally
including, without limitation, applicable bankruptcy,
insolvency, moratorium, reorganization or similar
laws and to the extent that equitable remedies such
as specific performance and injunction are in the
discretion of the court from which they are sought;
and
(c) no consent, licence, approval, order or authorization
of, or registration, filing or declaration with any
governmental authority that has not been obtained or
made by Consorteum and no consent of any third party
is required to be obtained by the Consorteum in
connection with the execution, delivery and
performance by the Consorteum of this Agreement or
the consummation of the transactions contemplated by
the Program.
2.3 Survival of Representations and Warranties. The representations and
warranties of 1510848 Inc and Consorteum contained in this Agreement and
contained in any document or certificate given pursuant to this Agreement shall
survive the Closing and shall continue for an indefinite period.
ARTICLE 3
GENERAL
3.1 Termination. Unless terminated earlier in accordance with the
provisions hereof, the initial term (the "Initial Term") of the Joint Venture
Agreement shall commence on the date
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hereof and shall continue for a period of four (4) years. This Agreement shall
automatically renew for successive two (2) year periods on the terms provided
herein unless either party provides written notice to the other, at least 30
days prior to the expiry of the Initial Term or any successive term, that this
Agreement will terminate at the end of the Initial or any such successive terms
as the case may be.
Notwithstanding anything to the contrary herein contained, either party
may terminate the Agreement:
(i) effective immediately upon notice to the other
party in the event that the other party is in
breach of any of the terms or conditions of this
Agreement which breach is material and has not been
cured in all material respects within 30 days after
receipt of written notice which provides details of
the breach; and
(ii) effective immediately upon notice to the other
party in the event that the other party becomes
insolvent or voluntarily or involuntarily bankrupt,
or makes an assignment for the benefit of its
creditors.
Following recovery of all of Consorteum's costs associated with the
Program, 1510848 Inc. shall have the right to terminate this Agreement following
a change in the management of Consorteum that negatively affects the business
relationship between the parties. The Consorteum management team includes ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇. Also if Consorteum fails to reach
deployment dates, as outline in responsibilities, 1510848 Inc shall have the
right to terminate this agreement with 30 days notice.
3.2 Time. Time shall be of the essence of this Agreement and of every
part hereof and no extension or variation of this Agreement shall operate as a
waiver of this provision.
3.3 Notices. All communications which may be or are required to be
given by either party to the other herein, shall (in the absence of any specific
provision to the contrary) be in writing and delivered or sent by prepaid
registered mail or telecopier to the parties at their following respective
addresses:
FOR: CONSORTEUM
Consorteum Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsmilie: ▇-▇▇▇-▇▇▇-▇▇▇▇
FOR: 1510848 INC
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▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇
Attn : ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and if any such communication is sent by prepaid registered mail, it shall,
subject to the following senence, be conclusively deemed to have been received
on the third business day following the mailing thereof and, if delivered or
telecopied, it shall be conclusively deemed to have been received at the time of
delivery or transmission. Notwithstanding the foregoing provisions with respect
to mailing, in the event that it may be reasonably anticipated that, due to any
stike, lock-out or similar event involving an interruption in postal service,
any payment or communication will not be received by the addressee by no later
than the third (3rd) business day following the mailing thereof, then the
mailing of any such payment or communication as aforesaid shall not be an
effective means of sending the same but rather any payment or communication must
then be sent by an alternative means of transportation which it may reasonably
be anticipated will cause the payment or communication to be received reasonably
expeditiously by the addressee. Either party may from time to time change its
address herein before set forth by notice to the other of them in accordance
with this section.
3.4 Governing Law. This Agreement and the rights and obligations and
relations of the parties hereto shall be governed by and construed in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein (but without giving consideration to any conflict of laws
rules). The parties hereto agree that the Courts of Ontario shall have
jurisdiction to entertain any action or other legal proceedings based on any
provisions of this Agreement. Each party hereto does hereby attorn to the
jurisdiction of the Courts of the Province of Ontario.
3.5 Headings. The headings in this Agreement and in the Schedules
hereto are inserted solely for convenience of reference and do not affect the
interpretation thereof or define, limit or construe the contents of any
provision of this Agreement.
3.6 Assignment and Enurement. Neither this Agreement nor any rights or
obligations hereunder shall be assignable by any party hereto without the prior
written consent of each of the other parties, which consent may be unreasonably
withheld. Subject thereto, this Agreement shall ensure to the benefit of and be
binding upon the parties hereto and their respective successors (including any
successor by reason of amalgamation of any party hereto) and permitted assigns.
3.7 Entire Agreement. With respect to the subject matter of this
Agreement, this Agreement (a) sets forth the entire agreement between the
parties hereto and any persons who have in the past or who are now representing
either of the parties hereto, (b) supersedes all prior understandings and
communications between the parties hereto or any of them, oral or written, and
(c) constitutes the entire agreement between the parties hereto Each party
hereto acknowledges and represents that this Agreement is entered into after
full investigation and that no party is relying upon any statement or
representation made by any other which is not embodied in this Agreement. Each
party hereto acknowledges that he or it shall have no right to rely upon any
amendment, promise, modification, statement or representation made or occurring
subsequent to the execution of this Agreement unless the same is in writing and
executed by each of the parties hereto_ This Agreement is not intended to settle
any obligations or disputes between the parties, and therefore all claims are
preserved.
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3.8 Further Assurances. The parties hereto shall with reasonable
diligence do all such things and provide all such reasonable assurances as may
be required to consummate the transactions contemplated hereby, and each party
hereto shall provide such further documents or instruments required by the other
party as may be reasonably necessary or desirable to effect the purpose of this
Agreement and carry out its provisions.
3.9 Waiver. The failure of any party to this Agreement to enforce at
any time any of the provisions of this Agreement or any of its rights in respect
thereto or to insist upon strict adherence to any term of this Agreement will
not be considered to be a waiver of such provision, right or term or in any way
to affect the validity of this Agreement or deprive the applicable party of the
right thereafter to insist upon strict adherence to.that term or any other term
of this Agreement. The exercise by any party to this Agreement of any of its
rights provided by this Agreement will not preclude or prejudice such party from
exercising any other right it may have by reason of this Agreement or otherwise,
irrespective of any previous action or proceeding taken by it hereunder. Any
waiver by any party hereto of the performance of any of the provisions of this
Agreement will be effective only if in writing and signed by a duly authorized
representative of such party.
3.10 Number. In this Agreement and unless the context otherwise
requires, words importing the singular number only shall include the plural and
vice versa, words importing the masculine and feminine genders and vice versa
and words importing persons shall include individuals, partnerships,
associations, trusts, unincorporated organizations and corporations and vice
versa.
3.11 Counterparts. - This Agreement may be executed in any number of
counterparts and all such counterparts shall for all purposes constitute one
agreement, binding on the parties hereto, provided each party hereto has
executed at least one counterpart, and each shall be deemed to be an original,
notwithstanding that all parties are not signatory to the same counterpart.
DATED the 13th day of December, 2006.
1510848 ONTARIO INC.
Per: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
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CONSORTEUM INC.
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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