EXHIBIT 10.36
JOINT VENTURE AGREEMENT
BY AND BETWEEN
ASHTON TECHNOLOGY GROUP, INC.
AND
KINGSWAY ELECTRONIC SERVICES LIMITED
DATED AS OF
DECEMBER 16, 1999
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS 2
1.1 Definitions 2
1.2 Additional Definitions 11
1.3 Interpretation and Construction of This Agreement 12
ARTICLE 2
FORMATION AND OFFICES 12
2.1 Formation 12
2.2 Principal Executive Offices and Other Offices 12
2.3 Purpose of Joint Venture 13
ARTICLE 3
CAPITALIZATION OF THE COMPANY 13
3.1 Authorized Capital; Initial Subscriptions 13
3.2 Contributions to the Company 13
3.3 Initial Capital Contributions of the Parties 13
3.4 Additional Capital Contributions of the Parties 13
3.5 Failure to Make Additional Capital Contributions 14
3.6 Loans 14
3.7 Pre-emptive Rights 15
3.8 Distributions 15
3.9 Business Plan 16
3.10 Preparation of Approved Annual Budget 16
3.11 Approved Annual Budget for Initial Financial Year 16
ARTICLE 4
OPERATIVE AGREEMENTS 16
4.1 Operative Agreements 16
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARTIES 16
5.1 Representations and Warranties of ATG 16
5.2 Representations and Warranties of Kingsway 17
ARTICLE 6
CERTAIN COVENANTS 18
6.1 Further Assurances 18
6.2 Commitment of Parties to the Joint Venture 19
6.3 Effect of Applicable Law 19
6.4 Notice of Party Change of Control 19
ARTICLE 7
MANAGEMENT 19
7.1 Composition of the Boards 19
7.2 Responsibilities of the Company Board 21
2
7.3 Certain Restrictions 21
7.4 Language 21
7.5 Officers 21
7.6 Compensation 21
7.7 Management of Subsidiaries 21
ARTICLE 8
GOVERNANCE PROVISIONS 21
8.1 Meetings; Quorum; Notice 21
8.2 Removal; Resignation; Vacancies 22
8.3 No Remuneration 23
ARTICLE 9
INDEMNIFICATION 23
9.1 Indemnification 23
ARTICLE 10
DEADLOCKS 24
10.1 Deadlocks 24
ARTICLE 11
TRANSFERS OF VENTURE INTERESTS 25
11.1 General Restrictions 25
11.2 Permitted Transferees 25
11.3 Right of First Refusal 25
11.4 Party Change of Control 26
11.5 Governmental Approvals 27
11.6 Closing of Purchase of Venture Interests 27
ARTICLE 12
FINANCIAL AND ACCOUNTING MATTERS 27
12.1 Books and Records; Financial Year 27
12.2 Financial Information 27
12.3 Right of Inspection of Books 27
12.4 Accounting Principles 27
12.5 Auditors 27
ARTICLE 13
OTHER ACTIVITIES BY THE PARTIES;
EXPANSION OF TERRITORY; CONFIDENTIALITY 28
13.1 In General 28
13.2 Non-Competition Obligations 28
13.3 Non-Competition Exceptions 28
13.4 Expansion of Territory 29
13.5 Confidentiality 29
ARTICLE 14
TERM AND TERMINATION DEFAULT 29
14.1 Term of KAA 29
14.2 Termination of Joint Venture 30
14.3 Termination Notice 30
3
14.4 Termination Upon Default, Etc 31
14.5 Other Terminations, Etc 31
14.6 Closing 31
14.7 Termination by Dissolution 31
ARTICLE 15
POST TERMINATION PROVISIONS 31
15.1 Consequences of Termination 31
15.2 Non-Solicitation 32
15.3 Transition Plan 32
ARTICLE 16
NEGOTIATIONS; ARBITRATION; SUBMISSION TO JURISDICTION
16.1 Negotiations; Arbitration 32
ARTICLE 17
MISCELLANEOUS 33
17.1 Notices 33
17.2 Applicable Law 34
17.3 Severability 34
17.4 Amendments 34
17.5 Waiver 34
17.6 Counterparts 34
17.7 Entire Agreement 34
17.8 No Assignment 34
17.9 No Third-Party Beneficiaries 34
17.10 Publicity 35
17.11 Construction 35
17.12 Disclaimer of Agency 35
17.13 Relationship of the Parties 35
17.14 Fiduciary Duties 35
EXHIBITS
Exhibit A - ATG License Agreement
Exhibit B - Employment Agreement
Exhibit C - Territory
Exhibit D - Stock Option Plan
Exhibit E - Kingsway/POP Exchange Agreement
SCHEDULES
Schedule 3.8 - Business Plan
Schedule 3.10 - Initial Year Budget
Schedule 5.1(d) - List of Finders and Brokers
Schedule 5.1(f) - Competition
Schedule 5.2(d) - List of Finders and Brokers
Schedule 5.2(f) - Competition
Schedule 7.5 - List of Officers
4
JOINT VENTURE AGREEMENT
JOINT VENTURE AGREEMENT (this "Agreement"), is made and entered into as of
this 16th day of December, 1999 by and between Ashton Technology Group, Inc.
("ATG"), a company organized under the laws of Delaware, United States, and
Kingsway Electronic Services Limited ("Kingsway"), a company organized under the
laws of the British Virgin Islands; and together with ATG, sometimes referred to
herein collectively as the "Parties" and individually as a "Party"), for the
express purpose of forming Kingsway ATG Asia Limited, a company to be organized
under the laws of the British Virgin Islands (the "Company" or "KAA"), and such
subsidiaries of KAA ("JV Companies") as KAA may choose to establish for the
purpose of effectuating this Agreement.
WITNESSETH
WHEREAS, ATG and certain subsidiaries develop, deploy, and operate on-line
transaction systems primarily in the United States and own and have developed an
electronic trading system commonly referred to as "eVWAP" for use by exchanges,
institutions, money managers and broker-dealers to which such customers submit,
directly and confidentially, buy and sell orders and related systems for
matching such orders and executing such trades (collectively, the "eVWAP
System");
WHEREAS, Kingsway and certain of its affiliates operate brokerage and
investment banking businesses throughout the Asia Pacific region and have access
to various institutional and retail brokerage customers who may be interested in
utilizing an eVWAP developed to match buy and sell orders in Asia Pacific equity
securities (hereinafter referred to as "Asian eVWAP");
WHEREAS, it is anticipated that the Parties desire to co-develop and/or co-
operate and/or co-market and/or co-utilize additional alternative trading
systems (ATSs) and distribution systems for seamless use by US and Asian
institutions as well as other financial intermediaries such as broker-dealers
and banks;
WHEREAS, it is anticipated that the ATSs and distribution systems will
initially be deployed in the Hong Kong market and will be expanded to other Asia
Pacific territories and the Parties will form KAA and subsidiaries of KAA for
the purpose of developing and deploying ATSs and distribution systems for use in
such territories and to market and promote within the Asia Pacific region
utilization of similar systems operated by ATG and its affiliates and licensees
outside such region; and
WHEREAS, in connection therewith, the Parties desire to make certain
contributions to the Company of working capital, to provide for the management
of the Company and for certain restrictions on the transferability of their
respective Equity Interests in the Company, among other things, all in
furtherance of the objectives set forth above and subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements contained herein, the Parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
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"Affiliate" shall mean, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by, or is under common Control with, such Person. The JV Companies
shall not be deemed Affiliates of the Parties or their Affiliates for purposes
of this Agreement.
"Agreement" shall mean this Joint Venture Agreement made between ATG, Kingsway,
and the Company, as it may be amended from time to time.
"Applicable Law" shall mean all applicable provisions of all (i) constitutions,
treaties, statutes, laws (including common law), rules, regulations, ordinances
or codes of any Governmental Authority, and (ii) orders, decisions, injunctions,
judgments, awards and decrees of any Governmental Authority.
"Applicable Rate" shall mean, during any period during which interest is due and
payable, the rate of interest per annum then being charged with respect to the
then outstanding Senior Debt of the Company; PROVIDED, HOWEVER, if no such
Senior Debt is then outstanding, "Applicable Rate" shall mean the then current
U.S. dollar prime rate established by U.S. banks, as quoted in the Wall Street
Journal.
"ATG License Agreement" shall mean the ATG License Agreement dated as of even
date herewith among ATG, Universal Trading Technologies Corporation, and KAA, a
true and correct copy of which is attached hereto as EXHIBIT A.
"Authorized Investments" shall mean, at any time, (i) any time deposit,
certificate of deposit or bankers acceptance, maturing not more than one year
after such time, maintained with or issued or guaranteed by either (a) a
commercial banking institution (including U.S. branches of foreign banking
institutions) that is a member of the Federal Reserve System and has assets of
not less than $1,000,000,000, or (b) a commercial banking institution located in
the Territory with assets of not less than $1,000,000,000, (ii) U.S. or Asia
Pacific government or local authority guaranteed securities, maturing not more
than one year after such time or (iii) commercial paper, maturing not more than
nine months after the date of issue, which is issued by a corporation (other
than an Affiliate of a Party) organized under the laws of any state of the
United States, the District of Columbia or any country in the Territory and
rated at least AAA by Standard & Poor's or the equivalent rating by ▇▇▇▇▇'▇
rating services; PROVIDED, HOWEVER, an Authorized Investment must be denominated
in U.S. dollars.
"Bankruptcy" shall mean, with respect to any Person, (i) the commencement, under
any bankruptcy, reorganization, arrangement, adjustment of debt, relief of
debtors, appointment of examiner, dissolution, insolvency or liquidation or
similar Applicable Law of any jurisdiction, whether now or hereafter in effect,
by such Person of a case or proceeding seeking (A) the entry as to such Person
of an order of relief, (B) such Person's own bankruptcy, liquidation,
reorganization, rehabilitation or composition or adjustment of debts, or (C) a
suspension or moratorium of payments, (ii) the commencement against such Person
of any case or proceeding of the type described in clause (i) of this definition
which remains undismissed for a period of 30 days; (iii) the appointment of a
custodian, trustee, administrator or similar official under any Applicable Law
described in clause (i) of this definition with respect to such Person, or the
taking charge by such custodian, trustee, administrator or similar official, of
all or any substantial part of the property of such Person; (iv) any
adjudication that such Person is insolvent or bankrupt; (v) the entering of any
order of relief in, or other order approving, any case or proceeding of the type
described in clause (i) of this definition; (vi) the making by such Person of a
general assignment for the benefit of its creditors; (vii) the failure by such
Person to pay, or the statement by such Person that it is unable to pay or shall
be unable or deemed unable to pay its debts generally as they become due under
Applicable Law; (viii) the calling by such Person of a meeting of its creditors
with a view to arranging a composition or adjustment of its debts; or (ix) any
indication by such Person, either by an act or failure to act, of its consent
to, approval of or acquiescence in any of the actions, orders or events
described in the foregoing clauses of this definition.
6
"Business Day" shall mean any day on which commercial banks in each of the
cities of New York and Hong Kong are normally open for the conduct of commercial
banking business.
"Business Plan" shall mean the Business Plan referred to in Section 3.8 and
implemented as provided herein.
"Competing Services" shall mean, (i) the JV Business described in clause (a) of
Section 2.3 and (ii) any services in the Territory substantially similar to such
JV Business, PROVIDED, HOWEVER, nothing herein shall preclude either of the
Parties from conducting any business activity which is being conducted by it on
the date of this Agreement or the date of termination of this Agreement (in the
case of ATG, outside the Territory), or that is derived from the business
activity being conducted by it on the date of this Agreement or the date of
termination of this Agreement and is not substantially similar to such JV
Business, or, in the case of Kingsway and its Affiliates, any internet-based or
on-line securities or other brokerage business; PROVIDED, HOWEVER, that the
utilization by Kingsway or its Affiliates of order-trading services shall not be
deemed a Competing Service so long as Kingsway and its Affiliates do not hold
any ownership, financial or other interest therein other than as a broker.
"Constituent Documents" shall mean the charters, bylaws, memorandum or articles
of association, or such other similar documents as may be required or otherwise
entered into in connection with the formation pursuant to Section 2.1(a).
"Contract" shall mean any loan or credit agreement, note, bond, indenture,
mortgage, deed of trust, lease, franchise, contract, or other agreement,
obligation, instrument or binding commitment of any nature.
"Control" (including, with its correlative meanings, "Controlled by" and "under
common Control with") shall mean, with respect to any Person, any of the
following: (i) ownership, directly or indirectly, by such Person of equity
securities entitling it to exercise in the aggregate more than fifty percent
(50%) of the voting power of the equity share capital of the entity in question,
or (ii) the possession by such Person of the power, directly or indirectly, (A)
to elect a majority of the board of directors (or equivalent governing body) of
the entity in question; or (B) to direct or cause the direction of the
management and policies of or with respect to the entity in question, whether
through ownership of securities, by Contract or otherwise.
"Distribution" shall mean any distribution by the Company by means of any
dividend payment, whether in cash, shares, property, other Equity Interests or
otherwise, any payment or application of any of its assets to purchase, redeem
or otherwise retire Equity Interests held by a Party, any distribution by way of
reduction of capital, partial liquidation or otherwise in respect of any such
Equity Interests held by such Party or any interest or other payment in respect
of, or any repayment, repurchase or redemption of, Subordinated Debt of the
Company or any Subsidiary of the Company held by or on behalf of a Party.
"Employment Agreements" shall mean, collectively, the (i) Employment Agreement
between KAA and ▇▇▇▇▇▇▇ ▇▇▇, and (ii) other Employment Agreements entered into
between KAA and senior management of KAA, true and correct copies of which are
attached hereto as EXHIBIT B.
"Equity Interest" shall mean in relation to KAA, the voting common stock of KAA,
any subsequently issued classes or series of any other capital stock of KAA and
any debt or other right convertible into Share Capital of the Company.
"Financial Year" shall mean the period commencing July 1 in any year and ending
on June 30 of the following year, except that the first Financial Year with
respect to KAA formed pursuant to Article 2 hereof, shall commence on the date
of its formation and end on June 30, 2000.
7
"GAAP" shall mean generally accepted accounting principles as in effect from
time to time in Hong Kong or the Asia Pacific Territory in which the JV Company
operates.
"Governmental Approval" shall mean any consent, approval, authorization, waiver,
grant, concession, license, exemption or order of, registration, certificate,
declaration or filing with, or report or notice to, any Governmental Authority.
"Governmental Authority" shall mean any federation, nation, state, sovereign or
government, any federal, supranational, regional, state or local political
subdivision, any governmental or administrative body, instrumentality,
department or agency, any self regulatory organization or any court,
administrative hearing body, commission or other similar dispute resolving panel
or body, and any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of a government to which KAA and/or any
Party hereto is subject.
"Indebtedness" shall mean, without duplication, all (i) obligations for borrowed
money or other extensions of credit, whether secured or unsecured and whether
absolute or contingent, including, without limitation, unmatured reimbursement
obligations with respect to letters of credit or guarantees issued on behalf of
any Person and all obligations for the deferred purchase price of property,
including finance leases and hire purchase agreements, (ii) obligations
evidenced by bonds, notes, debentures or other similar instruments, (iii)
obligations secured by any mortgage, pledge, security interest or other lien on
property owned or acquired by the Company or its Subsidiaries, (iv) capital
lease obligations, sale-leaseback or similar obligations and (v) all guarantees,
endorsements or other contingent or surety obligations (other than endorsement
of instruments for collection in the ordinary course of business) with respect
to obligations of others, including, without limitation, any obligation to
furnish funds, directly or indirectly (whether by virtue of partnership
arrangements, commission agreements, or otherwise), through the purchase of
goods, supplies or services or by way of shares purchase, capital contribution,
advance or loan.
"Injunction" shall mean any preliminary, temporary, interim or final injunction,
temporary restraining order or other court ordered legal prohibition or
equitable remedy requiring or prohibiting action.
"Invest or Participate" (including, with its correlative meanings, "Investment
or Participation", "Invested or Participated" and "Investing or Participating"),
as it relates to a Party or any of its Affiliates, shall mean, with respect to
any other Person that Offers Competing Services, directly or indirectly through
an Affiliate, (a) to acquire, as a principal, partner, shareholder, beneficial
owner or in any similar capacity, any ownership interest in such Person or (b)
by contract or otherwise to manage, operate or finance such Person, or to
participate in the management, operation or financing of such Person, or to act
as agent, representative, consultant or in any similar capacity for such Person,
or to use the name of such Person, or permit the use of the name of such Party
or its Affiliate by such Person, to the extent that any of such activities
described in this clause (b) are related to such Competing Services.
"Joint Venture" shall mean KAA and the rights and obligations of the Parties and
their Affiliates under this Agreement and the other Operative Agreements.
"Judgment" shall mean any judgment, order, judicial decree or arbitral award.
"JV Companies" shall mean, collectively, KAA, its respective Subsidiaries, if
any, that may hereafter be formed.
"Major Competitor" shall mean a Person or any Affiliate of such Person, which
materially competes with the Company or any Subsidiary through the offering of
Competing Services, or a Person which has taken substantial steps to become such
a competitor.
8
"Material Non-Monetary Default" shall mean a breach by a Party of any of the
terms or provisions of Article 13 of this Agreement, which breach is not cured
by such Party within thirty (30) days after written notice hereof is furnished
to such Party by the other Party.
"Offer" (including, with its correlative meanings, "Offering" or "Offered")
shall mean, with respect to electronic brokerage related products and services,
directly or indirectly, offering, producing, providing, selling, promoting,
distributing or marketing such product or service.
"Operative Agreements" shall mean all agreements that are exhibits to this
Agreement and such other agreements that the Parties enter into for the purpose
of fostering the Joint Venture.
"Party" or "Parties" shall have the respective meanings ascribed to such terms
in the first paragraph hereof.
"Party Change of Control", with respect to a Party, shall mean the acquisition
by any Person (other than ▇▇▇▇▇▇▇ ▇▇▇ or his Affiliates) or group of Persons
acting in concert, directly or indirectly, of equity securities of such Party
(or such Party's parent entity) entitling it or them to exercise in the
aggregate fifty percent (50%) or more of the voting power of such Party (or such
Party's parent entity), unless, in the case of Kingsway, ▇▇▇▇▇▇▇ ▇▇▇ maintains
effective management control following such acquisition.
"Party Subordinated Debt" shall mean Subordinated Debt of the Company owing to
one of its Parties that is subordinated to any other Indebtedness of the Company
other than other Subordinated Debt of the Company owing to one of its Parties.
"Percentage Interest" with respect to any Person's investment in another Person,
shall mean such Person's equity interest therein (whether voting or non-voting)
expressed as a percentage of the total outstanding equity share capital of such
other Person on a fully diluted basis (whether voting or non-voting).
"Permitted Affiliate" shall mean a Subsidiary of a Party, no minority interest
in which is owned or held or the benefits of which are in any way enjoyed,
directly or indirectly, by any Person engaged in a Competing Service.
"Permitted Lien" shall mean: (i) material, mechanics, carriers, workmen's,
repairmen's or other like liens arising in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings, (ii) liens for current taxes not yet due or any taxes being
contested in good faith by appropriate proceedings, (iii) liens to secure
performance of statutory obligations, (iv) any lien securing any purchase money
indebtedness incurred in the ordinary course of business, and (v) liens of
lessors under Leases.
"Person" shall mean an individual or a partnership, an association, a joint
venture, a corporation, a business or a trust or other entity organized under
any Applicable Law, an unincorporated organization or any Governmental
Authority.
"Proceeding" shall mean any action, litigation, suit, proceeding or formal
investigation or review of any nature, civil, criminal, regulatory or otherwise,
before any Governmental Authority.
"Public Offering" shall mean (i) any bona fide public offering of equity
securities (or securities exchangeable for or convertible into equity
securities) of the Company pursuant to an effective registration statement under
the Securities Act or any other Applicable Law or any other offering which
results in such securities being listed for trading on any international
securities exchange, or (ii) any offer
9
of equity securities (or securities exchangeable for or convertible into equity
securities) of a Person made in reliance on Rule 144A under the Securities Act.
"Securities Act" shall mean the United States Securities Act of 1933, or any
similar United States federal statute, and the rules and regulations of the U.S.
Securities and Exchange Commission thereunder, all as the same shall be in
effect from time to time.
"Security Interest" shall mean any debenture, mortgage, pledge, security
interest, adverse claim, encumbrance, lien (statutory or otherwise) or charge of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any lease in the nature thereof, the
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or similar filing pursuant to Applicable Law of any
jurisdiction) or any other type of preferential arrangement for the purpose, or
having the effect, of protecting a creditor against loss or securing the payment
or performance of any obligation.
"Senior Debt" of any Person shall mean indebtedness of such Person ranking
senior in right of payment and in liquidation to any other Indebtedness of such
Person.
"Share Capital" shall mean all classes or series of the Company's equity
securities.
"Subordinated Debt" of any Person shall mean Indebtedness of such Person ranking
junior in right of payment and in liquidation to any other Indebtedness of such
Person.
"Subsidiary" shall mean, with respect to any Person (the "Parent"), any other
Person in which the Parent, one or more direct or indirect Subsidiaries of the
Parent, or the Parent and one or more if its direct or indirect Subsidiaries (i)
have the ability, through ownership of securities individually or as a group,
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or individuals performing similar functions) of such other Person, or
(ii) own more than fifty percent (50%) of the equity share capital of such other
Person. The JV Companies will not be deemed Subsidiaries of the Parties or
their Affiliates for purposes of this Agreement.
"Territory" shall mean those territories and nations in Asia and the Pacific
Islands set forth on EXHIBIT C attached hereto.
"Third Party Approval" shall mean the approval of any Person other than a
Governmental Authority or a JV Company.
"Transfer" shall mean any transfer, directly or indirectly, conditionally,
contingently, voluntarily or involuntarily, whether or not for value, by
operation of law or otherwise, including any sale, pledge, security interest or
encumbrance, assignment, gift, merger, combination or other transaction or the
entering into any agreement, arrangement, undertaking or action which results or
may result in any of the foregoing.
"Venture Interest", in the case of any Party, shall mean the Equity Interests in
the Company held by the Party and any Subordinated Debt owed by the Company to
the Party.
"Wholly-Owned" shall mean, when used to designate the ownership interest of any
Person in an entity, that such Person owns directly or indirectly all of the
equity share capital and voting power of such entity, other than any DE MINIMIS
ownership in such entity as required by Applicable Law.
10
1.2 ADDITIONAL DEFINITIONS.
Approved Annual Budget Section 3.10
Bona Fide Offer Section 11.3(a)
Class A Common Shares Section 3.1
Company Affiliate Section 9.1(a)
Company Board Section 7.1
Control Call Notice Date Section 11.5(b)
Control Put Notice Date Section 11.5(a)
Deadlock Section 11.1(b)
Default Termination Value Section 14.4
Distributable Cash Section 3.7
Initial Profit Year Section 3.7
KAA Board Section 7.1
JV Business Section 2.3
Non-Transferring Party Section 11.7
Offeree Section 11.3(a)
Offered Interest Section 11.3(a)
Profit Year Section 3.7
Proposed Transferee Section 11.3(a)
Seller Section 11.3(a)
Senior Officers Section 16.1(a)
Shares Section 3.1
Specified Court Section 16.1(c)
Termination Conditions Section 14.2
Termination Notice Section 14.2
Transferring Party Section 11.7
Written Offer Section 11.3(a)
1.3 INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT. The definitions in
Section 1.1 and 1.2 shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All reference herein to Articles, Sections, Exhibits and Schedules
shall be deemed to be references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. The
table of contents and the headings of the Articles and Sections are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. Unless the context shall
otherwise require any reference to any agreement or other instrument or statute
or regulation is to such agreement, instrument or statute or regulation as
amended and supplemented from time to time (and, in the case of a statute or
regulation, to any replacement provision). Any reference in this Agreement to a
"day" or a number of "days" (without the explicit qualification of "Business")
shall be interpreted as a reference to a calendar day or number of calendar
days. If any action or notice is to be taken or given on or by a particular
calendar day, and such calendar day is not a Business Day, then such action or
notice shall be deferred until, or may be taken or given, on the next Business
Day. In the event of a conflict between any provision of a Constituent Document
and any provision of this Agreement, this Agreement shall prevail.
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ARTICLE 2
FORMATION AND OFFICES
2.1 FORMATION. (a) It is the Parties' intent to operate the Joint
Venture in a holding company structure with the business and operations of the
Joint Venture to be conducted through KAA and its subsidiaries, and,
accordingly, the Parties have heretofore caused the formation of the Company
under the name "Kingsway ATG Asia Limited" as a company under the laws of
British Virgin Islands. From and after the date hereof, the Parties shall take
such action as may be necessary and appropriate so that the Constituent
Documents shall incorporate the terms and conditions of this Agreement to the
extent practicable and customary in the jurisdiction of formation of the Company
and each of the other JV Companies, if any.
(b) Except as otherwise provided herein, Kingsway shall own forty-seven
percent (47%) of the voting Equity Interests of the Company, ATG shall own
forty-seven percent (47%) of the voting Equity Interests of the Company, and
Grand Conqueror Investments Limited, a BVI company, shall own six percent (6%)
of the voting Equity Interests of the Company.
2.2 PRINCIPAL EXECUTIVE OFFICES AND OTHER OFFICES. It is the intention of
the Parties that principal executive offices of KAA will initially be located at
▇/▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, with such other offices to
be maintained at such location or locations as the KAA Board shall determine
from time to time.
2.3 PURPOSE OF JOINT VENTURE. The sole purpose and the nature of the
business (the "JV Business") to be conducted and promoted by the Joint Venture
are (a) to develop and exploit electronic securities trading and distribution
systems in the Territory, including but not limited to trading on stock,
futures, commodities, currency and other exchanges or any recognized trading
market in the Territory and any alternative trading system, utilizing the Asian
eVWAP matching engine technology as the core of such JV Business in accordance
with the Operative Agreements, and any products or services ancillary to such
development and exploitation, (b) to operate brokerage operations in the
Territory to the extent necessary to the operation of such electronic securities
trading and distribution systems, (c) to operate as the exclusive enrollment
agent in the Territory for marketing, promotion and solicitation of customers
located in the Territory for utilization or electronic trading and distribution
systems operated by or through Ashton and its Affiliates and licensees outside
the Territory, and (d) to engage in any and all activities necessary, advisable,
convenient or incidental to the foregoing. Unless otherwise approved by the
Parties, the activities of KAA shall be limited to the activities set forth in
the Operative Agreements, Business Plan and the Constituent Documents and KAA
shall not conduct any other business operations whatsoever.
ARTICLE 3
CAPITALIZATION OF THE COMPANY
3.1 AUTHORIZED CAPITAL; INITIAL SUBSCRIPTIONS. The Parties shall cause
the Constituent Documents of the Company to provide that (A) the authorized
Share Capital of the Company shall consist of 500,000,000 shares of voting
common shares (the "Shares"), having one vote per share and (B) no Shares will
entitle the holder thereof to any preferences upon Distributions by the Company
by way of dividends or otherwise. It is the intention of the Parties that
10,000,000 Shares will be reserved for issuance in connection with performance
based incentive compensation for management, directors and other personnel of
KAA, Ashton and Kingsway as designated by ATG and Kingsway pursuant to EXHIBIT
D. Notwithstanding the prior sentence, 2,500,000 of such Shares will be reserved
for issuance to management and directors of Kingsway as designated by Kingsway
and 2,500,000 of such Shares will be reserved for issuance to management and
directors of Ashton as designated by Ashton.
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3.2 CONTRIBUTIONS TO THE COMPANY. Except as otherwise expressly provided
in this Agreement, no Party shall be required to make any contributions to the
capital of KAA or subscribe for additional shares of the equity securities of
KAA.
3.3 INITIAL CAPITAL CONTRIBUTIONS OF THE PARTIES. On or within ten (10)
Business Days following the execution of this Agreement, Kingsway shall have
made initial capital contributions to the Company consisting of USD 4,000,000 in
exchange for 27,000,000 Shares, ATG shall have made initial capital
contributions to the Company consisting of USD 1,000,000 and the technology
contributions contemplated by the ATG License Agreement in exchange for
47,000,000 Shares, and Grand Conqueror Investments Ltd. shall have made initial
capital contributions to the Company consisting of USD 5 in exchange for
6,000,000 Shares. In addition, Kingsway shall have entered into the Kingsway/POP
Exchange Agreement, a true and correct copy of which is included as EXHIBIT E,
for which Kingsway shall receive 20,000,000 Shares.
3.4 ADDITIONAL CAPITAL CONTRIBUTIONS OF THE PARTIES. Except as set
forth in Section 3.3 above, no Party shall be required to make any additional
capital contribution to the Company. In the event the Company proposes to issue
additional Shares in exchange for capital contributions in excess of the amounts
set forth in Section 3.3 above, each Party shall have a pre-emptive right to
participate in such capital contribution up to its pro rata portion to avoid
dilution in accordance with Section 3.6.
3.5 LOANS. (a) No Party shall be obligated to loan funds to the Company.
Loans by a Party to the Company shall not be considered capital contributions.
The amount of any such loans shall be a debt of the Company owed to such Party
in accordance with the terms and conditions upon which such loans are made.
(b) With the prior written consent of the other Party, a Party may (but
shall not be obligated to) guarantee a loan made to the Company. If a Party
guarantees a loan made to the Company and it is required to make payment
pursuant to such guarantee to the maker of the loan, then the amounts so paid to
the maker of the loan shall be treated as a loan by such Party to the Company
repayable on demand and not as an additional capital contribution. In the event
that only one of the Parties provides such a guarantee, the other Party hereby
agrees to indemnify the Party who provides such guarantee for a percentage equal
to the non-guarantor Party's pro-rata Equity Interest in KAA of any amounts paid
under such guarantee and any other costs, liabilities or expenses incurred in
respect thereof.
(c) It is the intention of the Parties that the Company be financed in a
manner that enables the Company to have a debt to equity ratio that enables them
to fulfill any regulatory capital requirements imposed on the JV Business under
the Applicable Laws of any Territory in which the Company or its subsidiaries
are conducting or intend to conduct JV Business. To the extent necessary to
maintain such regulatory capital requirements, the Parties may, in their
discretion, loan such funds as may be necessary to the Company, and each Party
shall participate in such loans on a pro-rata basis based on its Percentage
Interest at the time such loans are made and, as necessary, the Parties shall
enter into intercreditor agreements to ensure that such loans shall be
subordinate in right of payment to any Senior Debt of the Company from time to
time.
3.6 PRE-EMPTIVE RIGHTS. Other than the stock and options set aside
pursuant to EXHIBITS D and E, the Company shall not issue any equity securities
or any warrant, option or other security convertible into or exercisable for
such equity securities of the Company (other than any issuance of Shares as
described in Sections 3.1 and 3.3) or enter into any agreement in respect of
such issuance, unless the issuance has been approved as required by this
Agreement and pursuant to which the Company offers to each of the Parties the
right to participate proportionately according to the Percentage Interest of
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such Party, as of the date of such proposed issuance, on the same terms and
conditions, unless otherwise approved by the Company Board. Any right granted
pursuant to the preceding sentence shall be exercised by written notice to the
Company given within twenty (20) business days after delivery to each Party of
written notice of such proposed issuance. If any Party fails to respond to the
Company within such 20-day notice period, such failure shall be deemed to be the
rejection and waiver of the right of such Party to participate in the purchase
of the equity of the Company to be issued. At any time within sixty (60)
business days following the date the Company has received notice (or deemed
rejection and waiver) from each Party accepting or rejecting its right to
participate, the Company may carry out the proposed issuance to any other Party
or third party, or third parties, in the Company's sole discretion. The
provisions of this Section 3.6 shall not apply to an issuance of Share Capital
of the Company or any other Equity Interest in the Company, including without
limitation any warrant, option or security convertible into or exercisable for
such Share Capital in connection with a Public Offering, an acquisition
completed in the ordinary course of the JV Business or an employee benefit plan
or incentive compensation plan.
3.7 DISTRIBUTIONS. Unless the Parties mutually otherwise agree in writing
to permit Distributions at an earlier time or on a different basis, the Parties
shall, and shall cause their representatives on the Company Board, to take all
such action so that the Company shall not make any Distributions until such time
as profits as accumulated since the formation of the Company are in excess of
losses as accumulated since the formation of the Company as reflected in the
annual consolidated financial statements prepared for the Company and the
Subsidiaries for the Financial Year then ended (the first such Financial Year
being hereinafter referred to as an "Initial Profit Year" and each such
subsequent Financial Year being hereinafter referred to as a "Profit Year").
Thereafter, the Company may declare dividends in the discretion of the Company
Board, not to exceed Distributable Cash. "Distributable Cash" shall mean seventy
percent (70%) of the amount by which cash and cash equivalents (less the
Company's debt proceeds and contributions to capital, less (without duplication)
amounts to be funded from operating income and amounts specified in the Approved
Annual Budget to serve as a source of funds for capital expenditures and, less
required amounts needed pursuant to Applicable Law to ensure that the Company
has sufficient regulatory capital) as shown in the Company's quarterly
consolidated statement of cash flows as of the end of the relevant fiscal
quarter exceeds the cash and cash equivalents as shown in the Company's
consolidated statement of cash flows as of the end of the preceding fiscal
quarter (after taking into account any Distributions as of the end of such
preceding fiscal quarter). The Company shall cause its Subsidiaries to make
Distributions to the Company to the extent necessary to facilitate the making of
Distributions by the Company as contemplated by this Section 3.7, subject to
mandatory provisions of Applicable Law. In no event shall the Company or its
Subsidiaries make Distributions in excess of amounts permitted under Applicable
Law. Unless otherwise approved by the Company Board, all Distributions to
Parties shall be in cash in US Dollars.
3.8 BUSINESS PLAN. In furtherance of the Joint Venture, the Parties have
established the Business Plan which sets forth the manner in which the JV
Business is to be conducted by the Company during the two-year period beginning
on the date hereof and embodies the overall business strategy for the Joint
Venture until such time as it may be amended or modified upon the approval of
the Company Board. A true and correct copy of the Business Plan on the date
hereof is attached hereto as SCHEDULE 3.8.
3.9 PREPARATION OF APPROVED ANNUAL BUDGET. The Company's Chief Executive
Officer shall prepare for presentation to the Company Board on or before April
30 in each year beginning April 30, 2000, an annual budget for the Company and
its Subsidiaries setting forth in reasonable detail the proposed and projected
operating revenues and expenses for the Company and its Subsidiaries for the
year beginning the following July 1. Upon approval of such proposed annual
budget by the Company Board (with such changes, if any, as the Company Board may
determine), each annual budget shall constitute an "Approved Annual Budget" for
purposes hereof. In the event of the failure by the Company Board to approve an
annual budget for the next fiscal year, the Company shall operate
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according to the Approved Annual Budget for the just completed fiscal year until
approval of a new annual budget.
3.10 APPROVED ANNUAL BUDGET FOR INITIAL FINANCIAL YEAR. Notwithstanding
anything to the contrary contained in Section 3.9, a true and correct copy of
the Approved Annual Budget for the initial Financial Year of the Company and its
Subsidiaries is set out in the document attached as SCHEDULE 3.10.
ARTICLE 4
OPERATIVE AGREEMENTS
4.1 OPERATIVE AGREEMENTS. On or prior to the date hereof, each of the
Parties has and has caused its Affiliates insofar as within its power, to enter
into each of the Operative Agreements attached as exhibits hereto. The Parties
expressly reserve the right to enter into such other Operative Agreements that
they deem are necessary and appropriate for the furtherance of the JV Business
through KAA.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARTIES
5.1 REPRESENTATIONS AND WARRANTIES OF ATG. ATG represents and warrants to
Kingsway as follows:
(a) ORGANIZATION AND STANDING. ATG is a corporation duly organized,
validly existing and in good standing under the law of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority
necessary to enable it to own, lease or otherwise hold its properties and assets
and to carry on its business as presently conducted.
(b) DUE AUTHORIZATION. ATG has all requisite corporate power and corporate
authority to enter into and perform its obligations under this Agreement and to
consummate the transactions to be consummated by it hereunder. ATG has all
requisite corporate power and corporate authority to enter into and perform its
obligations under the other Operative Agreements to which it is a party and to
consummate the transactions to be consummated thereby by it. The execution,
delivery and performance by ATG of the Operative Agreements to which it is a
party have been duly authorized by all necessary corporate action on the part of
ATG. This Agreement has been, and the other Operative Agreements to which ATG is
a party have been, duly executed and delivered by it. This Agreement
constitutes, and the other Operative Agreements to which ATG is a party
constitute, legal, valid and binding obligations of ATG, enforceable against it
in accordance with their respective terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject to the effect of general
principles of equity, including, without limitation, the possible unavailability
of specific performance or injunctive relief regardless of whether considered in
a proceeding in equity or at law.
(c) NO CONFLICTS. The execution, delivery and performance by ATG of this
Agreement does not, and the execution, delivery and performance by ATG of the
other Operative Agreements to which it is a party and the compliance with the
terms of the Operative Agreements to which it is a party will not, conflict
with, result in any violation of or default (with or without notice or lapse of
time or both) under, give rise to a right of termination, cancellation or
acceleration of any obligation (in each case by any third party) or to the loss
of any benefit under, or result in or require the creation, imposition or
extension of any Security Interest upon any of its properties or assets under
(i) any provision of its
15
Certificate of Incorporation or by-laws or similar constituent documents, or
(ii) any Judgment, Injunction, Applicable Law or Contract to which it is a party
or by which it or any of its properties is bound. To the knowledge of ATG, no
Third Party Approval and no Governmental Approval is required to be obtained or
made by ATG in connection with the execution, delivery and performance of this
Agreement, the other Operative Agreements to which it is a party, and the
transactions contemplated hereby and thereby.
(d) BROKERS OR FINDERS. With the exception of SCHEDULE 5.1(d), no Person
is or will be entitled to any broker's or finder's fee, or any other commission
or similar fee in connection with any of the transactions contemplated hereby as
a result of any action taken by or on behalf of ATG.
(e) LITIGATION. There is no Proceeding pending or, to the knowledge of
ATG, threatened against ATG reasonably likely to restrain, enjoin or otherwise
prevent the consummation of the transactions contemplated hereby or the
operation of the JV Business under the Operative Agreements as contemplated
hereby.
(f) NON-COMPETE. As of the date of this Agreement, except as set forth in
SCHEDULE 5.1(f), neither ATG nor any of its Affiliates conducts any business
activity anywhere in the Territory which is the same as, or substantially
similar to the JV Business as described in clause (a) of Section 2.3.
(g) INTELLECTUAL PROPERTY. ATG acknowledges that Kingsway has entered into
this Agreement in reliance upon ATG's contribution of the Technology, Licensed
Marks and Proprietary Rights therein (each of the foregoing as defined in the
ATG License Agreement) to the JV Business and ATG's entering into the ATG
License Agreement with KAA. ATG hereby confirms its representations and
warranties in Sections 9.1(v) and 9.1(vi) of the ATG License Agreement, which
are incorporated herein by reference.
5.2 REPRESENTATIONS AND WARRANTIES OF KINGSWAY. Kingsway represents and
warrants to ATG as follows:
(a) ORGANIZATION AND STANDING. Kingsway is a corporation duly organized,
validly existing and in good standing under the law of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority
necessary to enable it to own, lease or otherwise hold its properties and assets
and to carry on its business as presently conducted.
(b) DUE AUTHORIZATION. Kingsway has all requisite corporate power and
corporate authority to enter into and perform its obligations under this
Agreement and to consummate the transactions to be consummated by it hereunder.
Kingsway has all requisite corporate power and corporate authority to enter into
and perform its obligations under the other Operative Agreements to which it is
a party and to consummate the transactions to be consummated thereby by it. The
execution, delivery and performance by Kingsway of the Operative Agreements to
which it is a party have been duly authorized by all necessary corporate action
on the part of Kingsway. This Agreement has been, and the other Operative
Agreements to which Kingsway is a party have been, duly executed and delivered
by it. This Agreement constitutes, and the other Operative Agreements to which
Kingsway is a party constitute, legal, valid and binding obligations of
Kingsway, enforceable against it in accordance with their respective terms,
subject to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and subject to
the effect of general principles of equity, including, without limitation, the
possible unavailability of specific performance or injunctive relief regardless
of whether considered in a proceeding in equity or at law.
(c) NO CONFLICTS. The execution, delivery and performance by Kingsway of
this Agreement does not, and the execution, delivery and performance by Kingsway
of the other Operative
16
Agreements to which it is a party and the compliance with the terms of the
Operative Agreements to which it is a party will not, conflict with, result in
any violation of or default (with or without notice or lapse of time or both)
under, give rise to a right of termination, cancellation or acceleration of any
obligation (in each case by any third party) or to the loss of any benefit
under, or result in or require the creation, imposition or extension of any
Security Interest upon any of its properties or assets under (i) any provision
of its Certificate of Incorporation or by-laws or similar constituent documents,
or (ii) any Judgment, Injunction, Applicable Law or Contract to which it is a
party or by which it or any of its properties is bound. To the knowledge of
Kingsway, no Third Party Approval and no Governmental Approval is required to be
obtained or made by ATG in connection with the execution, delivery and
performance of this Agreement, the other Operative Agreements to which it is a
party, and the transactions contemplated hereby and thereby.
(d) BROKERS OR FINDERS. With the exception of SCHEDULE 5.2(d), no Person
is or will be entitled to any broker's or finder's fee, or any other commission
or similar fee in connection with any of the transactions contemplated hereby as
a result of any action taken by or on behalf of Kingsway.
(e) LITIGATION. There is no Proceeding pending or, to the knowledge of
Kingsway, threatened against Kingsway reasonably likely to restrain, enjoin or
otherwise prevent the consummation of the transactions contemplated hereby or
the operation of the JV Business under the Operative Agreements as contemplated
hereby.
(f) NON-COMPETE. As of the date of this Agreement, except as set forth in
SCHEDULE 5.2(f), neither Kingsway nor any of its Affiliates conducts any
business activity which is the same as, or substantially similar to the JV
Business as described in clause (a) of Section 2.3.
ARTICLE 6
CERTAIN COVENANTS
6.1 FURTHER ASSURANCES. From and after the date hereof, each of the
Parties shall use its reasonable efforts to do or cause to be done, and to cause
its Affiliates to do or cause to be done, such further acts and things and
deliver or cause to be delivered to each other Party or its designees such
additional agreements and instruments as such Party or its designees may
reasonably require or deem advisable to carry into effect the purpose of the
Operative Agreements or to better assure and confirm unto such Party or its
designees its rights, powers and remedies hereunder and thereunder.
6.2 COMMITMENT OF PARTIES TO THE JOINT VENTURE. Each of ATG and Kingsway
agrees that it will (i) ensure that its relevant personnel are equally and fully
committed to the success of the Joint Venture, (ii) devote sufficient resources
so that it can comply fully with obligations under the Operative Agreements to
which it is a party, and (iii) fulfill its obligations under this Agreement and
any other Operative Agreements to which it is a party.
6.3 EFFECT OF APPLICABLE LAW. If any provision contained in any Operative
Agreement relating to KAA is inconsistent with or prohibited by the Applicable
Laws of the jurisdiction in which KAA is formed or operates, the Parties agree
to take all reasonable steps necessary to modify such provision in a manner
which is as similar as possible in terms and effect as the original provision
and which preserves substantially the intended purpose of the original
provision, but which is not inconsistent with or prohibited by, the Applicable
Laws of the jurisdiction in which KAA is formed or operates.
6.4 NOTICE OF PARTY CHANGE OF CONTROL. If a Party Change of Control
occurs or is likely to occur with respect to a Party, subject to Applicable Law,
such Party shall promptly give prior written notice to the other Party of such
Party Change of Control.
17
6.5 COOPERATE IN PUBLIC OFFERINGS. In the event the Company undertakes to
list its Shares, or the shares of any Subsidiary, on any public exchange or
electronic trading system in any jurisdiction upon the approval of the Company
Board as set forth in Section 7.2 below, each Party shall, and shall cause its
officers, directors, employees, agents and Affiliates to, cooperate fully with
all requests of the Company to effectuate such listing.
ARTICLE 7
MANAGEMENT
7.1 COMPOSITION OF THE BOARDS. (a) The board of directors of the Company
(alternatively, the "Company Board" or "KAA Board") shall consist of eight (8)
directors until the second Anniversary of the date herein (the "Initial
Period"). ATG shall be entitled to designate four (4) such directors to the
Company Board. Kingsway shall be entitled to designate four (4) such directors,
one whom will be the chief executive officer of KAA during the Initial Period.
After the Initial Period, the KAA Board shall consist of nine (9) directors, and
Kingsway shall be entitled to designate five (5) such directors, one of whom
will be the chief executive officer of KAA to. In each election of directors,
each Party shall vote its Share Capital in the Company to effect the election of
the nominees so designated.
7.2 RESPONSIBILITIES OF THE COMPANY BOARD. The Company Board shall be
responsible for the management of the business and affairs of the Company.
Without limiting the generality of the foregoing, the Board shall assure that
the Company not take any action with respect to the following matters without
the affirmative vote of a majority of the directors in attendance at any duly
constituted meeting of the Company Board:
(i) action by the Company or any of its Subsidiaries which (A) is outside
the ordinary course of business operations of the Company or any such
Subsidiary and (B) has not been reflected in an Approved Annual Budget;
(ii) incurrence of any Indebtedness or the making of any capital
expenditure by the Company or any of its Subsidiaries in excess of
USD500,000 in any case, or in the aggregate in any Financial Year, except
as contemplated by the Approved Annual Budget and except, in the case of
Indebtedness, for endorsements for collection or deposits in the ordinary
course of business;
(iii) mortgage, pledge or the granting of any other Security Interest with
respect to the assets of the Company and its Subsidiaries, except purchase
money mortgages in the ordinary course of business and other Permitted
Liens;
(iv) making of any loans or the agreement to make any loans by the Company
or any of its Subsidiaries or the guarantee by any of them of any
Indebtedness of any other Person in excess of USD500,000, in any case, or
in the aggregate in any Financial Year;
(v) entering into any transaction, directly or indirectly (including,
without limitation, any purchase, sale, lease, investment, loan, service or
management agreement or other transaction) with either Party or any of
their respective Affiliates involving the receipt or expenditure by the
Company and any of its Subsidiaries of more than USD500,000, in any case,
or in the aggregate in any Financial Year, except as expressly contemplated
by this Agreement or any of the other Operative Agreements or as specified
in the Approved Annual Budget for such Financial Year or the Business Plan;
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(vi) declaration, setting aside, or payment of Distributions by the Company
or any of its Subsidiaries or any redemptions, purchase or other
acquisition of the equity securities of the Company or any of its
Subsidiaries, except as set forth in Section 3.7 above;
(vii) any amendment of the Constituent Documents;
(viii) any issuance, transfer, pledge or sale of equity securities by the
Company, including, without limitation, capital stock, options, warrants or
similar instruments, except as specifically provided in this Agreement;
(ix) entering into or conducting any business other than the JV Business;
(x) any appointment or change in the Company's independent auditors;
(xi) approval of any material amendment or modification of the Business
Plan;
(xii) approval of any annual budget or any material amendment or
modification of any Approved Annual Budget;
(xiii) establishment of any committee of the Company Board and the
delegation of powers thereto, it being expressly understood that any such
committee shall at all times have a number of voting representatives
designated by each of the Parties proportionate to the Parties'
representation on the Company Board;
(xiv) appointment of the board of directors of any Subsidiary;
(xv) (A) any acquisition by the Company or any of its Subsidiaries (in one
or a series of related transactions) of, or any investment by the Company
or any of its Subsidiaries (in one or a series of related transactions) in,
assets or properties of any Person other than a Wholly-Owned Subsidiary
(whether by acquiring shares or other equity securities, partnership
interests or evidences of Indebtedness of any Person, by contributing to
the capital of any Person, by making a loan, advance or other extension of
credit to any other Person) in any case if the purchase price or amount to
be invested is more than USD 500,000, or (B) the investment of cash
included in the working capital of the Company in other than Authorized
Investments;
(xvi) any sale, assignment or transfer of any assets or properties of the
Company in any Financial Year in excess of USD 500,000 in the case of any
particular asset or property or in the aggregate in the case of a group of
similar assets or properties except for such sales, assignments or
transfers in the ordinary course of business;
(xvii) approval of any quarterly, semi-annual or annual financial
statements of the Company and its Subsidiaries; and
(xviii) approval of the listing of the Shares, or any shares of a
Subsidiary, on any public exchange or electronic trading system in any
jurisdiction.
7.3 CERTAIN RESTRICTIONS. Anything herein to the contrary notwithstanding,
in no event shall the Company Board approve any of the following matters without
the prior written consent of each Party:
(i) any amendment of the Constituent Documents of the Company;
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(ii) any sale or other transfer (in one or a series of related
transactions) of substantially all of the assets and properties of the
Joint Venture;
(iii) whether, directly or indirectly, by operation of law or otherwise,
any merger with, consolidation with, or other combination with, any Person;
or
(iv) the winding-up or dissolution of KAA or any subsidiary thereof except
as otherwise provided in Section 14.6.
7.4 LANGUAGE. The proceedings of meetings of the board of directors of
the Company shall be conducted in the English language. The formal minutes of
meetings of the board of directors of the Company shall be maintained in the
English language. The Company shall ensure that all senior management of KAA and
any Subsidiary thereof will have a good working knowledge of English.
7.5 OFFICERS. The principal officer of the Company shall be its Chief
Executive Officer. The Company Board shall also have the power to appoint such
other officers as it deems appropriate and delegate such powers to such officers
as shall not be inconsistent with this Agreement, the Business Plan, Applicable
Law and the Constituent Documents of the Company which may include a finance
director, head of marketing and sales, and head of technology. As of the date
hereof, the initial slate of officers of the Company shall be as set forth on
SCHEDULE 7.5 attached hereto.
7.6 COMPENSATION. It is the intent of the Parties that compensation and
other forms of remuneration for employees and officers of the Company, including
incentive bonus plans, share participation schemes, pension plans and employee
benefits plans, medical insurance, vacation and other benefit plans shall be
consistent with the guidelines outlined in the Business Plan.
7.7 MANAGEMENT OF SUBSIDIARIES. The general provisions of Sections 7.1,
7.3, 7.4, 7.5 and 7.6 shall, to the extent practicable, govern the management of
each Subsidiary of the Company.
ARTICLE 8
GOVERNANCE PROVISIONS
8.1 MEETINGS; QUORUM; NOTICE. (a) The chairman of the Company Board
shall prepare or direct the preparation of the agenda for, and preside over,
meetings of the Company Board on which he serves as chairman. The chairman shall
deliver such agenda to each director on the Company Board as chairman at least
four (4) Business Days prior to giving of notice of a regular or special meeting
and any director may add items to such agenda.
(b) The Parties anticipate that a regular meeting of the Company Board
shall be held at least once every six (6) months. Special meetings of the
Company Board may be called by any director and shall be held at such place as
may be determined by the Company Board. Written notice of the time and place of
each regular and special meeting of the Company Board shall be given by or at
the direction of the chairman or co-chairman, as the case may be, to each
director, in the case of a regular meeting, at least ten (10) Business Days, and
in the case of a special meeting, at least five (5) Business Days, before such
meeting. Additionally, the Company Board may meet on an emergency basis with any
notice so long as at least one director representing each Party is present at
such meeting. Whenever notice is required to be given to any director, such
notice shall specify the agenda for such meeting and, to the extent appropriate,
shall be accompanied by supporting documentation. The required notice to any
director may be waived by such director in writing. Attendance by a director at
a meeting shall constitute a waiver of any required notice of such meeting by
such director, except when such director attends such meeting for the
20
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not properly called or
convened.
(c) Except as expressly provided in this Agreement, the presence of at
least any two (2) directors shall be required to constitute a quorum for the
transaction of any business by the Company Board. Each Party shall use its
reasonable efforts to ensure the existence of a quorum at any duly convened
meeting of the Company Board. Except as expressly provided in this Agreement, no
action shall be taken by the Company Board with respect to any matter without
the affirmative vote of a majority of the directors of the Company Board present
at a duly constituted meeting. If fewer than all of the directors designated to
the Company Board by a given Party are present at a meeting, to the extent
permitted by Applicable Law, each director or directors of a Party present at
such meeting shall be entitled to vote the entire voting power held by all
directors designated by such Party. If more than one director appointed by a
given Party is present at a meeting, to the extent permitted by Applicable Law,
such representatives shall vote such Party's entire voting power in the same
manner.
(d) While the Parties intend that their directors on the Company Board
shall attend meetings in person, the Parties acknowledge that directors may from
time to time be prevented from doing so due to various circumstances. Directors
may, therefore, to the extent permitted by Applicable Law, participate in a
meeting of the Company Board by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 8.1(d) shall constitute presence in person at such meeting, except where
a director participates in the meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business on the ground
that the meeting is not properly called or convened.
(e) To the extent permitted by Applicable Law, any action required or
permitted to be taken at a meeting of the Company Board may be taken without a
meeting if a written consent, setting forth the action so taken, is signed by
all the directors and filed with the minutes of the proceedings of the Company
Board. Such consent shall have the same force and effect as a unanimous
affirmative vote of the directors.
8.2 REMOVAL; RESIGNATION; VACANCIES. A Party's designated directors on
the Company Board shall hold office at the pleasure of such Party that
designated them. Any such Party may at any time, by written notice to the other
Party and the Company Board, remove (with or without cause) its representative
on the Company Board and designate a new director. Subject to Applicable Law, no
director may be removed except by the Party designating the same. Any director
may resign at any time by giving written notice to the Party that appointed such
director and to the Company Board. Such resignation shall take effect on the
date shown on or specified in such notice or, if such notice is not dated and
the date of resignation is not specified in such notice, on the date of the
receipt of such notice by the Company Board. No acceptance of such resignation
shall be necessary to make it effective. Any vacancy on the Company Board shall
be filled only by the Party whose director has caused the vacancy, by giving
written notice to the Company Board and to the other Party, and each of the
Parties agree, as necessary, to vote, or to cause its designated representatives
on the Company Board to vote, for any Person so nominated by the Party whose
representative has caused such vacancy.
8.3 NO REMUNERATION. Unless the Parties otherwise agree, no Person shall
be entitled to any fee, remuneration or compensation in connection with his
service as a director of the Company.
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ARTICLE 9
INDEMNIFICATION
9.1 INDEMNIFICATION. (a) To the fullest extent permitted under
Applicable Law, the Company shall indemnify and hold harmless, or cause its
Subsidiaries to indemnify and hold harmless, each of their respective Affiliates
and all officers, directors and shareholders (including the Parties) of such
Affiliates, and each director and officer of the Company and any Person serving
in any similar capacity for another Person (including the KAA Board) affiliated
with the Company at the request of the Company or any of its Subsidiaries
(solely for purposes of this Section 9.1, each of the foregoing Persons being
referred to as, a "Company Affiliate"), from and against any and all losses,
claims, demands, costs, damages, liabilities, expenses of any nature (including
reasonable attorneys' fees and disbursements), judgments, fines, settlements and
other amounts (collectively, "Damages") arising from any and all claims,
demands, actions, suits or proceedings, whether civil, criminal, administrative
or investigative, in which a Company Affiliate may be involved, or threatened to
be involved, as a party or otherwise, arising out of or incidental to the
business of the Joint Venture, regardless of whether a Company Affiliate
continues to be a Company Affiliate, at the time any such liability or expense
is paid or incurred, if (i) the Company Affiliate acted in good faith and in a
manner it or he reasonably believed to be in, or not opposed to, the interests
of the Company and, with respect to any criminal proceeding, had no reason to
believe its or his conduct was unlawful, (ii) the Damages do not arise from a
breach of any of the Operative Agreements by any Company Affiliate, and (iii)
the Company Affiliate's conduct did not constitute actual fraud, gross
negligence or willful or wanton misconduct. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE, or its equivalent, shall not, in and of itself, create a presumption
or otherwise constitute evidence that the Company Affiliate acted in a manner
contrary to that specified in (i), (ii) or (ii) above.
(b) Expenses (including reasonable legal fees and expenses) incurred in
defending any proceeding subject to subsection (a) of this Section 9.1 shall be
paid by the Company in advance of the final disposition of such proceeding upon
receipt of a written affirmation by the Company Affiliate of his or its good
faith belief that he or it has met the standard of conduct necessary for
indemnification under this Section 9.1 and a written undertaking (which need not
be secured) by or on behalf of the Company Affiliate to repay such amount if it
shall ultimately be determined, by a court of competent jurisdiction or
otherwise, that the Company Affiliate is not entitled to be indemnified by the
Company as authorized hereunder.
(c) The indemnification provided by this Section 9.1 shall be in addition
to any other rights to which each Company Affiliate may be entitled under any
agreement or vote of the Board by the vote of directors who are disinterested
and unaffiliated with such Company Affiliate, as a matter of law or otherwise,
both as to action in the Company Affiliate's capacity as a Company Affiliate or
as a Person serving at the request of the Company and shall continue as to a
Company Affiliate who has ceased to serve in such capacity and shall inure to
the benefit of the heirs, successors, assigns, administrators and personal
representatives of such Company Affiliate.
(d) The Company shall purchase and maintain directors and officers
insurance or, similar coverage, for its directors and its officers in such
amounts and with such deductibles or self-insured retentions as are customary
for Persons engaged in businesses similar in size and type to those engaged in
by the Joint Venture.
(e) Any indemnification hereunder shall be satisfied only out of the assets
of the Company and the Parties shall not be subject to personal liability by
reason of these indemnification provisions.
(f) A Company Affiliate shall not be denied indemnification in whole or in
part under this Section 9.1 because the Company Affiliate had an interest in the
transaction with respect to which the
22
indemnification applies if the transaction was otherwise permitted by the terms
of this Agreement and all material facts relating to such Company Affiliate's
interest were adequately disclosed to the Company Board at the time the
transaction was consummated.
(g) The provisions of this Section 9.1 are for the benefit of the Company
Affiliates and the heirs, successors, assigns, administrators and personal
representatives of the Company Affiliates and shall not be deemed to create any
rights for the benefit of any other Persons.
(h) Any repeal or amendments of any provisions of this Section 9.1 shall be
prospective only and shall not adversely affect any Company Affiliate's right
existing at the time of such repeal or amendment.
ARTICLE 10
DEADLOCKS
10.1 DEADLOCKS. (a) The Parties agree that all Deadlocks shall be
resolved in accordance with this Article 10.
(b) A deadlock (a "Deadlock") shall be deemed to have occurred upon the
failure of either of the Parties to give prior written consent to any proposed
Company Board action on a matter covered under Section 7.3.
(c) If a Deadlock occurs, the Company Board shall refer the Deadlock to the
board of directors of both Parties for resolution. The Parties' boards of
directors shall have thirty (30) days to consider and attempt to resolve such
Deadlock. If the Deadlock cannot be resolved by the Parties' boards of directors
within such 30-day period, the Deadlock shall be resolved pursuant to Section
10.2.
10.2 RIGHT TO BUY OR SELL. In the event of a Deadlock that cannot be
resolved pursuant to Section 10.1(c), either Party (the "Initiating Party")
shall have the right to purchase from, or the obligation to sell to, the other
Party (the "Responding Party") all, but not less than all, of the applicable
Party's Equity Interest in accordance with the following provisions:
(a) The Initiating Party shall deliver a written notice (the "Purchase
Notice") to the Company and the Responding Party stating (i) a statement of
intent to rely on this Section 10.2, and (ii) the amount representing, in the
opinion of the Initiating Party, the value of 100% of the Equity Interests in
the Company then outstanding, on a fully diluted basis, (the "Specified
Amount").
(b) Within one hundred and twenty (120) days after receipt of the Purchase
Notice, the Responding Party shall elect, by written notice, to either (i) sell
all, but not less than all, of the Responding Party's Equity Interest to the
Initiating Party for the portion of the price set forth in the Purchase Notice
attributable to the Responding Party's Equity Interest, or (ii) purchase all,
but not less than all, of the Initiating Party's Equity Interest for the portion
of the price set forth in the Purchase Notice attributable to the Initiating
Party's Equity Interest.
(c) If the Responding Party does not exercise either of the options set
forth in subsection 10.2(b) hereof within one hundred and twenty (120) days
after receipt of the Purchase Notice, then such Responding Party shall
conclusively be deemed to have elected to sell all of its Equity Interest to the
Initiating Party for the portion of the price set forth in the Purchase Notice
attributable to the Responding Party's Equity Interest.
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(d) The purchase and sale of the applicable Equity Interest in accordance
with this Section 10.2 shall be completed within sixty (60) days after the
delivery of the Responding Party's response pursuant to subsection 10.2(b) (or
deemed election pursuant to subsection 10.2(c)) and payment for the Equity
Interest shall be made in immediately available funds at the closing, unless the
Parties agree otherwise, against delivery of appropriate documents evidencing
and transferring title of the Equity Interest herein acquired, free and clear of
all liens or encumbrances thereon. The Parties hereby agree to take all actions
necessary to implement the provisions of this Section 10.2, including, without
limitation, to execute any agreements or other documents required to evidence
the Transfer of the applicable Equity Interest in accordance with Section 11.6.
(e) Upon the delivery by the Initiating Party of a Purchase Notice, neither
Party shall Transfer any or all of its Equity Interest except pursuant to this
Section 10.2.
ARTICLE 11
TRANSFERS OF VENTURE INTERESTS
11.1 GENERAL RESTRICTIONS. No Party may Transfer all or any part of such
Party's Venture Interest, except in open market transactions after the listing
of the Shares on a public exchange or electronic trading system in any
jurisdiction, or as otherwise provided in this Agreement. Any purported Transfer
of a Party's Venture Interest or a portion thereof in violation of the terms of
this Agreement shall be null and void and of no effect. Any permitted transferee
desiring to make a further Transfer shall become subject to all the provisions
of this Article 11 to the same extent and in the same manner as any Party
desiring to make any Transfer. Upon the transfer by a Party of part of its
Equity Interest such that the Party's remaining Equity Interest is less than
twenty-five percent (25%) of the outstanding Equity Interests in the Company,
this Agreement shall immediately terminate, except in respect of a transfer
pursuant to Section 11.3 as to which the transferee is substituted hereunder for
the transferor.
11.2 PERMITTED TRANSFEREES. Notwithstanding the provisions of Sections
11.3 and 11.4, each Party shall have the right to Transfer, by a written
instrument, all or any part of its Venture Interest to a Permitted Affiliate;
PROVIDED, HOWEVER, that such transfer is not materially financially detrimental
to KAA and that such Permitted Affiliate shall execute an instrument in form and
substance reasonably satisfactory to the KAA Board accepting and adopting the
terms and provisions of this Agreement and the other Operative Agreements to
which the transferor is a party and shall pay all reasonable expenses of KAA in
connection with such Transfer, it being understood that upon such Transfer the
transferor shall remain obligated under the Operative Agreements unless the
Company Board otherwise agrees.
11.3 RIGHT OF FIRST REFUSAL. (a) If any Party (the "Seller") desires to
Transfer all, and not less than all, of its Venture Interest (the "Offered
Interest") pursuant to a bona fide offer (the "Bona Fide Offer") from a third
party (the "Proposed Transferee"), other than a transferee permitted by Section
11.2, it shall submit a written offer (the "Written Offer") to Transfer such
Venture Interest (collectively, the "Offered Interest") to the other Party (for
purposes of this Section 11.3, the "Offeree") on terms and conditions, including
price, not less favorable to the Offeree than those on which the Seller proposes
to Transfer such Offered Interest to the Proposed Transferee. The Written Offer
shall disclose the identity of the Proposed Transferee, the Person or Persons,
if any, that Control such Proposed Transferee, the Offered Interest proposed to
be Transferred, the total number of Shares and principal amount of any
Subordinated Debt owned by the Seller, the terms and conditions, including
price, of the proposed Transfer, and any other material facts relating to the
proposed Transfer. The Written Offer shall further state that the Offeree may
acquire, in accordance with the provisions of this Agreement, all of the Offered
Interest for the price and upon the other terms and conditions, including
deferred payment (if applicable), set forth therein.
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(b) The Offeree shall be permitted to confirm that the Bona Fide Offer is
firm and subject only to conditions that could reasonably be expected to be
satisfied, by (i) review of the documents involved in such Bona Fide Offer and
(ii) requiring that the Proposed Transferee submit evidence reasonably
satisfactory to the Offeree of any financing for such purchase.
(c) (i) If the Offeree elects to purchase the Offered Interest at the
price offered by the Proposed Transferee, the Offeree shall communicate in
writing its election to purchase to the Seller, which communication shall be
delivered to the Seller within 30 days of the date the Written Offer was made.
Such communication shall, when taken in conjunction with the Written Offer, be
deemed to constitute a valid, legally binding and enforceable agreement for the
sale and purchase of the Offered Interest. If the Offeree does not communicate
in writing within such 30-day period its election to purchase the Offered
Interest, then such Offeree shall conclusively be deemed to have rejected and
waived its right to purchase the Offered Interest.
(ii) The closing of the sale and purchase of the Offered Interest to
the Offeree shall occur in accordance with Sections 11.5 and 11.6.
(iii) If the Offeree does not elect to so purchase the Offered
Interest, the Seller may sell the entire Offered Interest to the Proposed
Transferee within 90 days following the expiration of the thirty (30) day
period referred to in Section 11.3(c), upon terms that are no more
favorable to the Proposed Transferee than those set forth in the Written
Offer; provided that such Proposed Transferee agrees in writing to be bound
by and subject to the terms and conditions of this Agreement and the
Operative Agreements, as applicable, in all respects as if originally party
hereto in place of the Seller. If the Proposed Transferee does not carry
out its purchase within said 90-day period, or withdraws its offer or
introduces any changes thereto that are more favorable to the Proposed
Transferee, the Offered Interests may not be sold, assigned or transferred
unless previously offered to the Parties once again pursuant to this
Section 11.3.
11.4 PARTY CHANGE OF CONTROL. (a) Kingsway shall have the right at any
time within sixty (60) days after the later of (i) the occurrence of a Party
Change of Control as to ATG or (ii) the giving of notice of such Party Change of
Control as to ATG pursuant to Section 6.4, by written notice to ATG (the date of
such notice is referred to herein as the "Control Put Notice Date"), to require
ATG to purchase all, but not less than all, of its Venture Interest for a cash
price equal to the Reference Value. Promptly following the Control Put Notice
Date, the Parties shall commence determining the Reference Value as set forth
below.
(b) ATG shall have the right at any time within sixty (60) days after the
later of (i) the occurrence of a Party Change of Control as to Kingsway or (ii)
the giving of notice of a Party Change of Control as to Kingsway pursuant to
Section 6.4, by written notice to Kingsway (the date of such notice is referred
to herein as the "Control Call Notice Date"), to require Kingsway to sell all,
but not less than all, of its Venture Interest for a cash price equal to the
applicable Reference Value. Promptly following the Control Call Notice Date, the
Parties shall commence determining the Reference Value as set forth below.
(c) The "Reference Value" referred to in Sections 11.4(a) and 11.4(b) shall
be such amount as agreed by the Parties. If the Parties fail to agree on such
amount within twenty (20) Business Days of the Control Put Notice Date or the
Control Call Notice Date, as the case may be, then the Reference Value shall be
determined by an arm's length, nationally recognized investment banking firm in
Hong Kong selected by the Parties jointly.
(d) If the Parties cannot agree on the choice of a nationally recognized
investment banking firm, each of the Parties shall choose one nationally
recognized investment banking firm in Hong Kong,
25
each of which is at arm's length to both Parties (and if a Party fails to make
such selection within ten (10) Business Days after notice is given of the other
Party's selection, then the value determined by the investment banking firm
selected by such other Party shall be deemed conclusive). The Reference Value
shall be the mean of the values proposed by each such investment banking firm.
All costs associated with the determination of the Reference Value, including
the fees of any nationally recognized investment banking firm retained, shall be
shared equally by the Parties.
(e) The closing of the terms pursuant to Section 11.4(a) or 11.4(b) shall
occur in accordance with Sections 11.5 and 11.6.
11.5 GOVERNMENTAL APPROVALS. Each of the Parties shall use all reasonable
commercial efforts to obtain all Governmental Approvals required to effect any
purchase and sale of Venture Interests pursuant to Sections 11.3 or 11.4. If the
required Governmental Approvals have not been received at the time any such
closing is scheduled to occur, the contemplated transfer shall be deferred and
made conditional until such time as the required Governmental Approvals have
been obtained.
11.6 CLOSING OF PURCHASE OF VENTURE INTERESTS. Unless the Parties
otherwise agree, the closing of any purchase and sale of Venture Interests
pursuant to Sections 11.3 or 11.4 shall occur at the Company's principal
executive office within sixty (60) days after the applicable notice of purchase
and sale has been furnished. At such closing, (i) the Party transferring such
Venture Interests (the "Transferring Party") shall transfer, assign and deliver
to the Person purchasing such Venture Interests (the "Non-Transferring Party")
the certificates or other documents evidencing the Venture Interests being
purchased, duly endorsed for transfer, together with such assignments separate
from any such certificate and other documents or instruments reasonably required
by counsel for the Non-Transferring Party to consummate such purchase, and (ii)
the Non-Transferring Party shall pay the purchase price in immediately available
funds in US Dollars. In addition, at the closing of such purchase and sale, (A)
the Transferring Party shall deliver to the Non-Transferring Party an executed,
written representation, in form and substance reasonably satisfactory to legal
counsel for the Non-Transferring party, that the Transferring Party owns the
Venture Interests free and clear of all Security Interests and that upon the
delivery of the Venture Interests, the Transferring Party shall have transferred
all of its right, title and interest in the Venture Interests, and (B) the Non-
Transferring Party shall deliver to the Transferring party such investment
representations as may be reasonably required to comply with applicable
securities laws.
ARTICLE 12
FINANCIAL AND ACCOUNTING MATTERS
12.1 BOOKS AND RECORDS; FINANCIAL YEAR. The Company shall, and shall
cause its Subsidiaries to, to the extent permitted by Applicable Law, keep its
accounts and financial and cost records in US Dollars and in English. The fiscal
year of the Company shall be the Financial Year.
12.2 FINANCIAL INFORMATION. The Company shall prepare in accordance with
Hong Kong GAAP (i) not later than sixty (60) days after the end of each
Financial Year audited financial statements in English of the Company and its
Subsidiaries, and (ii) not later than thirty (30) days after the end of each
fiscal quarter (other than the final quarter of a Financial Year), unaudited
financial statements in English of the Company and its Subsidiaries and shall
also cause the Company to provide on a timely basis all statements in English
necessary for each Party to prepare its tax returns as they relate to such
Party's interest in the Company.
26
12.3 RIGHT OF INSPECTION OF BOOKS. The Company and each of its
Subsidiaries shall keep full, complete and accurate books of account, record and
information with respect to their affairs and the same shall be maintained at
the principal office of the Company. Entries shall be made in such books of
account and records of all such matters, transactions and things as are usually
written and entered in books of account and records kept by Persons engaged in
businesses similar to the business of the Company or required by Applicable Law.
Each Party shall have the right, acting reasonably and in coordination with the
Company's auditors and accounting personnel and, to the extent practicable, the
other Party, to audit, examine, and make copies of or extracts from the books of
account and records of the Company and its Subsidiaries at all reasonable times
during usual business hours. Such right may be exercised through any agent or
employee of such Party designated in writing by it or by an independent
certified accountant designated in writing by such Party. Each Party shall bear
all expenses incurred in any examination made for such Party's account.
12.4 ACCOUNTING PRINCIPLES. Unless otherwise agreed by the Parties, the
accounts and records of the Company and its Subsidiaries shall be maintained in
accordance with Hong Kong GAAP.
12.5 AUDITORS. The auditors of the Company shall be an internationally
recognized auditing firm selected by the Company Board and approved by the
Parties. All audit reports and reports to management on internal controls and
procedures prepared by such auditing firm shall be made available to the Company
Board and each Party.
ARTICLE 13
OTHER ACTIVITIES BY THE PARTIES; EXPANSION OF TERRITORY; CONFIDENTIALITY
13.1 IN GENERAL. The Parties acknowledge that to support their intention
to make the Joint Venture the principal embodiment of the JV Business of the
Parties and to protect adequately their interests in KAA, it is necessary and
essential that the Parties enter into and adhere to the covenants contained in
this Article 13.
13.2 NON-COMPETITION OBLIGATIONS. (a) From and after the date hereof and
until a date twelve (12) months following the termination of KAA and its
Subsidiaries, or following the date on which any Party ceases to be a Party
pursuant to a Transfer hereunder, pursuant to the terms of this Agreement,
except as otherwise expressly provided in Section 13.3 or as provided in the ATG
License Agreement, no Party or any of its Affiliates shall within the Territory:
(i) Offer Competing Services; or
(ii) Invest or Participate in any Person that Offers Competing
Services; or
(iii) Except as required by Applicable Law, no senior officer or
member of the board of directors of a Party shall serve as senior officer
or member of a board of directors, managing board or similar governing body
of a Major Competitor of KAA.
(b) During the period Section 13.2(a) is applicable to Kingsway, neither
Kingsway nor its Affiliates shall Offer or Invest or Participate in any Person
that offers Competing Services in the United States or in any other territory in
which Ashton or its Affiliates or licensees operates an equivalent Competing
Service and has agreed to a reciprocal limitation as to competition in the
Territory.
(c) In the event that the ATG License Agreement is terminated by ATG in
accordance with the ATG License Agreement, the non-compete obligations set forth
in Sections 13.2(a) and (b) above shall cease to apply.
27
13.3 NON-COMPETITION EXCEPTIONS. Except as expressly set forth in this
Section 13.3, nothing in this Article 13 shall be construed to prohibit any of
the following activities by a Party or any of its Affiliates after the date
hereof.
(a) FIVE PERCENT INVESTMENTS. The acquisition or ownership by a Party
(directly or indirectly through an Affiliate) of any securities of a publicly
held Person engaged in Competing Services, if such securities (i) were not
acquired directly from such Person in a private placement or similar
transaction, (ii) do not represent more than five percent (5%) of the aggregate
voting power of the outstanding equity securities of such Person (assuming the
conversion, exercise or exchange of all such securities held by such Party or
its Affiliate that are convertible, exercisable or exchangeable into or for
voting securities), and (iii) in the case of debt securities, entitle the holder
thereof to receive only interest or other returns that are not based on the
value or results of operations of such Person.
(b) INVESTMENT FUNDS. The acquisition or ownership (directly or indirectly
through an Affiliate) by a Party of an ownership interest in an investment fund
or plan (including pension and retirement plans) investing on behalf of the
employees or retirees of such Party or its Affiliates or the continued
sponsorship by such Party (or Affiliate) thereof; provided that no investment by
any such fund or plan has the purpose or effect of changing or influencing the
Control of any Person that Offers Competing Services.
13.4 EXPANSION OF TERRITORY. Each of the Parties acknowledges that the JV
Business shall only be conducted in connection with equity securities listed and
traded on securities exchanges located within the Territory and that the
countries and regions comprising the Territory can only be changed by mutual
agreement in writing by the Parties. With respect solely to the Peoples Republic
of China (the "PRC"), KAA shall have non-exclusive rights to the PRC until
January 1, 2002. In the event ATG does not enter into any joint ventures in the
PRC by the latter date, then KAA shall have exclusive licensing rights as to the
PRC. For purposes of this Section 13.4, the Parties agree that none of Hong
Kong, Macau or the Republic of China (Taiwan) shall be included within the
definition of PRC. The foregoing notwithstanding, in the event any Party
contemplates Offering Competing Services in any country or region that is not
part of the Territory (excluding the United States, Europe and Canada), such
Party shall first consult with the other Party with respect to expanding the
Territory to include such country or region.
13.5 CONFIDENTIALITY. Each Party shall use, and shall cause its
Affiliates, employees and agents to use, their respective reasonable best
efforts to ensure that the terms of this Agreement, the other Operative
Agreements (including all Exhibits and Schedules hereto and thereto) and
confidential proprietary information concerning the other Party, the JV Business
and affairs of the Company and its Subsidiaries are not disclosed to third
parties unless the other Party shall have consented to such disclosure in
writing; PROVIDED, HOWEVER, that such information may be disclosed to third
parties to the extent reasonably required to accomplish any proposed transfer
under Article 12, as necessary in connection with any private offering of
securities of a Party or any of its Affiliates, if the Person to which the
information is disclosed agrees in writing to keep such information
confidential, as necessary in connection with any Public Offering of securities
of a Party or any of its Affiliates (and related reporting obligations
occasioned thereby), and as required by law.
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ARTICLE 14
TERM AND TERMINATION DEFAULT
14.1 TERM OF KAA. KAA and its Subsidiaries shall continue without
interruption until they are dissolved and terminated pursuant to the terms of
this Agreement, the Constituent Documents and Applicable Law.
14.2 TERMINATION OF JOINT VENTURE. The following shall be "Termination
Conditions" with respect to the Joint Venture in which case the non-defaulting
Party may deliver a written notice (the "Termination Notice") in accordance with
Section 14.3:
(a) a Material Non-Monetary Default (in which case the non-defaulting Party
may deliver a Termination Notice in accordance with Section 14.3);
(b) the Bankruptcy of a Party (in which case the non-bankrupt Party may
deliver a Termination Notice in accordance with Section 14.3);
(c) the proper termination of the ATG License Agreement in accordance with
its terms (in which case any Party may deliver a Termination Notice in
accordance with Section 14.3);
(d) written mutual consent of the Parties (in which case any Party may
deliver a Termination Notice in accordance with Section 14.3); or
(e) if a Party's equity ownership falls below twenty-five percent (25%) of
total Shares issued and outstanding, other than pursuant to a Transfer under
Section 11.3.
14.3 TERMINATION NOTICE. (a) If a Termination Condition occurs, a Party
entitled to deliver a Termination Notice pursuant to Section 14.2 may give such
Termination Notice to the other Parties and to the Company Board within 60 days
following the date upon which such Party becomes aware of the occurrence of the
Termination Condition. If any Party properly delivers a Termination Notice, the
other Party shall be precluded from delivering a subsequent Termination Notice.
(b) Each Party acknowledges and agrees that (i) it shall not challenge the
validity of any provision of this Article 14 in any Proceeding and (ii) each
Party shall have a right to seek specific performance of each provision of this
Article 14.
14.4 TERMINATION UPON DEFAULT, ETC. In the case of a Termination
Condition under Section 14.2(a) or (b), the non-defaulting Party delivering the
Termination Notice shall have the right to exercise its option to purchase all
but not less than all, of the Venture Interest of the defaulting Party at eighty
percent (80%) of the defaulting Party's investment to date plus interest on
amounts invested from time to time at the Applicable Rate (the "Default
Termination Value") by delivering a written notice of exercise within sixty (60)
days following delivery of a Termination Notice. This reduction to eighty
percent (80%) of the investment to date plus interest on amounts invested from
time to time at the Applicable Rate is agreed by both parties as a reasonable
pre-estimate by way of liquidated damages of the likely loss, direct and
indirect, which would be incurred by the non-defaulting Party in consequence of
a Termination Condition arising under Section 14.2(a) or (b) hereof in relation
to the defaulting Party, this assessment taking into account the financial and
other commitments made by both Parties under this Agreement in relation to the
establishment and proposed long term operation of the Joint Venture. Such
written notice shall constitute an offer by the non-defaulting Party to purchase
the Venture Interests of the defaulting Party at a price equal to the Default
Termination Value, and the defaulting Party hereby accepts any such offer by the
non-defaulting Party. If the non-defaulting Party fails to deliver such written
notice of such exercise within said 60-day period, it will be deemed to have
elected not to
29
purchase the Venture Interest of the defaulting Party. In the event that the
non-defaulting Party purchases the Venture Interest of the defaulting Party
pursuant to this Section 14.4, the purchase price for the Venture Interest shall
be an amount payable in immediately available funds in US dollars.
14.5 CLOSING. Each of the Parties shall use its reasonable efforts to
obtain all Governmental Approvals required to effect the purchase and sale of
Venture Interests, pursuant to Section 14.4. Unless the Parties have failed to
receive all required Governmental Approvals, the closing of the purchase of a
Venture Interest pursuant to this Article 14 shall be held at the offices of the
purchasing Party within ten (10) days after the final determination of the
purchase price to be paid to the selling Party. If in spite of the Parties'
efforts in this regard, the required Governmental Approvals have not been
received at the time the closing is scheduled to occur, the closing shall be
postponed until such date as the Parties shall have obtained the required
Governmental Approvals; provided that, if such Governmental Approvals are not
obtained prior to the first anniversary of the date on which such closing is
postponed, at the request of any Party, the Parties shall negotiate in good
faith to provide for the termination of the Joint Venture pursuant to such
mutually agreeable terms and conditions as will permit the Parties to obtain all
Governmental Approvals required for the termination of the Joint Venture, and as
will have substantially the same economic consequences to the Parties as the
transaction contemplated by Section 14.4. At the closing, the purchasing Party
and the selling Party shall make the deliveries specified in Section 11.6.
14.7 TERMINATION BY DISSOLUTION. In the case of a Termination Condition
under Section 14.2(c) or (d), upon delivery of a Termination Notice, the Parties
shall proceed to dissolve the Joint Venture by the Parties causing their
representative directors on the KAA Board to proceed with the winding up of the
affairs and liquidation of KAA through the sale of their respective assets and
properties. Notwithstanding the foregoing, in the event that a Party fails to
give a Termination Notice within the time period set forth in Section 14.3, such
Party shall be deemed to have waived its right to dissolve, with respect to the
event or events which gave rise to such right to dissolve. In the case of a
Termination Condition under Section 14.2(e), there shall be no dissolution of
the Joint Venture, and the Party whose interest is subject to such event shall
cease to have any rights under this Agreement.
ARTICLE 15
POST TERMINATION PROVISIONS
15.1 CONSEQUENCES OF TERMINATION. Upon the transfer by at least one Party
of its entire Venture Interest in accordance with this Agreement (other than a
transfer pursuant to Section 11.2), this Agreement shall forthwith cease to have
further force and effect as between such transferor on the one hand and the
Company and the other Party on the other hand, and all further obligations of
the Company, the other Party and each of their respective officers, directors
and Affiliates on the one hand and the transferor on the other hand under this
Agreement shall terminate without further liability, except that:
(a) such transfer shall not constitute a waiver of any rights that any
Party (or any of its Affiliates) may have by reason of a breach of this
Agreement or any other Operative Agreement, subject to any limitations thereon
in this Agreement or the other Operative Agreements;
(b) Each Operative Agreement shall continue or terminate in accordance with
the terms therein; and
(c) the provisions of Articles 9, 13 (other than Section 13.4) (for the
twelve-month period following such termination with respect to Article 13 only),
15 and 17 (other than Section 17.8) of this Agreement shall continue in full
force and effect.
30
15.2 NON-SOLICITATION. Anything herein to the contrary notwithstanding,
upon the Transfer by any Party of all of its Venture Interest in accordance with
this Agreement, for a period commencing on the date of such Transfer and ending
on the first anniversary of such Transfer, such Party shall not, and shall cause
its Affiliates not to, induce or attempt to influence any employees of the
Company, its Subsidiaries or any of their Affiliates to terminate such
employee's employment therewith.
ARTICLE 16
NEGOTIATIONS; ARBITRATION; SUBMISSION TO JURISDICTION
16.1 NEGOTIATIONS; ARBITRATION. (a) Except for interim injunctive relief
in respect of any claimed violation of Article 13 pending resolution of such
claim as provided below, in the event of any dispute, controversy or claim
(other than a Deadlock) arising out of or relating to this Agreement, or the
performance, breach, termination, or invalidity hereof, such dispute,
controversy or claim shall be the subject of an attempt at an amicable solution,
for which purpose any party shall give notice to the other parties, giving a
concise description of the matter in question and the position of such party in
respect thereof and proposing a meeting among the chief executive officers,
executive managing directors or their designees (the "Senior Officers") of the
ultimate parent companies of the Parties in Hong Kong (or such other place as
they may agree) with the purpose of resolving the dispute, controversy or claim.
(b) In the event such a meeting is called, the meeting shall take place
within ten (10) Business Days of its being requested. Unless the parties
otherwise agree, if such meeting does not take place within such ten (10)
Business Days or if within ten (10) Business Days after such meeting the Senior
Officers have not resolved such matter, then the matter shall be settled by
arbitration in accordance with the rules of the International Chamber of
Commerce. The arbitration shall be the sole and exclusive forum for resolution
of the dispute, controversy or claim, and the award shall be final and binding.
Judgment thereon may be entered by any court having jurisdiction. The place of
arbitration shall be London, England. The arbitration shall be conducted in the
English language and any foreign-language documents presented at such
arbitration shall be accompanied by an English translation thereof. The
arbitrators shall apply the laws of England without regard to the principles of
conflicts of laws.
(c) Each of the parties hereby submits to the exclusive jurisdiction of the
courts of London, England in any action, suit or proceeding with respect to (i)
interim injunctive relief in respect of any claimed violation of Article 13, or
(ii) the enforcement of the arbitration provisions of this Agreement, and to the
non-exclusive jurisdiction of such court with respect to the enforcement of any
award thereunder. Each party irrevocably appoints the agent for service
specified opposite its name on the signature pages hereof as its authorized
agent in the city of London upon which process may be served in any related
proceeding, and agrees that service of process upon such agent, and written
notice of said service to such party, by the person serving the same to the
address so provided, shall be deemed in every respect effective service of
process upon such party in any such action, suit or proceeding. Each party
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for the
duration of this Agreement.
ARTICLE 17
MISCELLANEOUS
17.1 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and shall be (a) personally delivered, (b) transmitted by
internationally recognized air courier service, or (c) transmitted by facsimile,
in each case to the Parties as follows, as elected by the Party giving such
notice:
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If to ATG, to:
Ashton Technology Group, Inc
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (215)
Fax: (215)
If to Kingsway, to:
Kingsway Group
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇/▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
with a copy to:
Kingsway ATG Asia
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇/▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
U.S.A.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been duly given on (i) the date of receipt if delivered
personally, (ii) three (3) Business Days after delivery to the courier, or (iii)
the next Business Day in the jurisdiction of the recipient following the date of
transmission with electronic confirmation if transmitted by facsimile, whichever
shall first occur. Any
32
Party may change its address for purposes hereof by notice to the other Party
and the Company. All notices and other communications shall be in the English
language.
17.2 APPLICABLE LAW. The validity, construction and performance of this
Agreement shall be governed by and construed in accordance with the law of Hong
Kong, regardless of the laws that might otherwise govern under applicable
principles of conflicts or choice of law.
17.3 SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, the Parties agree that such provision will be
enforced to the maximum extent permissible so as to effect the intent of the
Parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. If necessary to effect the intent of the Parties, the Parties will
negotiate in good faith to amend this Agreement to replace the unenforceable
language with enforceable language which as closely as possible reflects such
intent.
17.4 AMENDMENTS. This Agreement may be modified only by a written
amendment signed by all of the Parties to this Agreement.
17.5 WAIVER. The waiver by a Party of any instance of any other Party's
non-compliance with any obligation or responsibility herein shall be in writing
and signed by the waiving Party and shall not be deemed a waiver of other
instances of such other Party's non-compliance.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts shall have been signed by
each Party and delivered to the other Parties.
17.7 ENTIRE AGREEMENT. The provisions of this Agreement and those written
agreements executed and delivered contemporaneously herewith set forth the
entire agreement and understanding among the Parties as to the subject matter
hereof and supersede all prior agreements, oral or written, and all other prior
communications between the Parties relating to the subject matter hereof and
thereof.
17.8 NO ASSIGNMENT. (a) Except as specifically provided herein, no
Party shall, directly or indirectly, assign this Agreement or any of its rights
or obligations hereunder without the prior written consent of the other Parties.
(b) Any attempted assignment of this Agreement in violation of this Section
17.8 shall be void and of no effect.
(c) This Agreement shall be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and permitted
assigns.
17.9 NO THIRD-PARTY BENEFICIARIES. Except for the provisions of Article 9
hereof, this Agreement is for the sole benefit of the Parties and their
permitted assigns, and nothing herein express or implied shall give or be
construed to give to any Person, other than the Parties and such assigns, any
legal or equitable rights hereunder.
17.10 PUBLICITY. The Parties shall use reasonable efforts to consult in
good faith with each other with a view to agreeing upon any press release or
public announcement relating to the transactions contemplated hereby or by the
other Operative Agreements prior to the consummation thereof.
33
17.11 CONSTRUCTION. This Agreement has been negotiated by the Parties and
their respective counsel and shall be fairly interpreted in accordance with its
terms and without any strict construction in favor of or against any of the
Parties.
17.12 DISCLAIMER OF AGENCY. This Agreement shall not constitute any Party
as a legal representative or agent of any other Party, nor shall a Party have
the right or authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in the name or on behalf
of any other Party or any of its Affiliates or of the Company unless otherwise
expressly permitted by such Party.
17.13 RELATIONSHIP OF THE PARTIES. The relationship among the Parties
shall not be that of partners and nothing herein contained shall be deemed to
constitute a partnership among them.
17.14 FIDUCIARY DUTIES. Subject to Applicable Law, no Party or any of its
Affiliates nor any officer, director, employee or former employee of any Party
or its Affiliate shall have any obligation, or be liable, to any Party or the
Company for exercising any of the rights of such Party or such Affiliate under
this Agreement or any other Operative Agreement to which it is or will be a
party, for exercising or failing to exercise its rights as a shareholder of the
Company or for breach of any fiduciary or other similar duty to any Party or the
Company by reason of such conduct, other than a breach of any Operative
Agreement.
* * *
34
IN WITNESS WHEREOF, each of the Parties has caused its respective duly
authorized officers to execute this Agreement as of the day and year first above
written.
Ashton Technology Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
Kingsway Electronic Services Limited
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Chief Executive Officer
Dated: December 16, 1999
35
EXHIBIT A
---------
ATG License Agreement
EXHIBIT B
---------
Employment Agreement
EXHIBIT C
---------
Countries and Other Jurisdictions
Comprising Territory
--------------------
Australia
Bangladesh
Brunei
Cambodia
Federated States of Micronesia
Fiji Islands
French Polynesia
Hong Kong
Guam
India
Indonesia
Japan
Laos
Macau
Malaysia
Mongolia
Myanmar
New Zealand
Northern Mariana Islands
North Korea
Pakistan
Papua, New Guinea
Philippines
Samoa
Singapore
Solomon Islands
South Korea
Sri Lanka
Taiwan
Thailand
Timor
Vietnam
EXHIBIT D
---------
Stock Option Plan
EXHIBIT E
---------
Kingsway/POP Exchange Agreement
36