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EXHIBIT 10.5
JOINT VENTURE AGREEMENT
This Joint Venture Agreement ("JV AGREEMENT") is made and entered into
as of May 13, 1997 by and between CyberCash, Inc., a corporation organized
under the laws of Delaware; CyberCash Japan C.V., a partnership organized under
the laws of the Netherlands which is an indirect subsidiary of CyberCash
(collectively, "CYBERCASH"); and SoftBank Corporation, a corporation organized
under the laws of Japan ("SOFTBANK").
In consideration of the mutual promises set forth herein, CyberCash
and SoftBank hereby agree as follows:
WHEREAS, CyberCash currently operates in the United States a suite of payment
services for enabling payments on the Internet the, including a Secure Credit
Card Service, the CyberCoin(TM) Service, and the PayNow(TM) Service, and
intends to introduce additional payment services in the future (in the
aggregate, the "CYBERCASH SERVICES"); and
WHEREAS, CyberCash wishes to offer the CyberCash Services in Japan, and wishes
to cooperate with SoftBank in doing so; and
WHEREAS, CyberCash and SoftBank wish to form a joint venture relationship as
equal partners for operating and marketing the CyberCash Services in Japan; and
WHEREAS, CyberCash wishes to develop for the joint venture a version of its
software for the Japanese market and convey that software to the joint venture;
and
WHEREAS, SoftBank wishes to invest in the joint venture a substantial portion
of the funds necessary to finance the customization of the CyberCash Technology
and to provide working capital for the joint venture;
NOW THEREFORE, CyberCash and SoftBank agree as follows:
1. FORMATION AND CAPITALIZATION OF THE JOINT VENTURE.
1.01 GENERAL. CyberCash has organized, and is the sole shareholder of
a Japanese corporation, "CyberCash Kabushiki Kaisha" (known in English, as
"CyberCash KK", and referred to in this Agreement as "CCKK"). The Articles of
Incorporation of CCKK are attached hereto as Exhibit A. The principal office of
CCKK shall be located in Tokyo, Japan.
1.02 PURPOSES OF CCKK. The purposes of CCKK shall be (i) to assist in
the preparation of specifications for CyberCash's technology localized for the
Japanese market (the "LOCAL SOFTWARE"), (ii) to finance the development of the
Local Software, (iii) to provide the CyberCash Services in Japan, (iv) to
market the CyberCash Services in the Japanese market, and (v) to engage in
other business activities consistent with this JV Agreement as the Board of
Directors shall determine.
1.03 TERM. The joint venture will have an initial term of five years.
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1.04 CAPITAL STOCK. The authorized capital stock of CCKK initially
shall be 800 shares of Common Stock (the "COMMON STOCK"). The company shall
also be authorized to issue Convertible Preferred Stock not to exceed 1,000
shares (the "PREFERRED STOCK"). The Preferred Stock shall not have any dividend
preference, but it shall have a liquidation preference giving its holders
priority over the Common Stock in the event of liquidation.
1.05 INITIAL CAPITALIZATION. CyberCash is currently the sole
shareholder of CCKK, having purchased 200 shares of Common Stock for the sum of
10,000,000 Yen.
1.06 INVESTMENT BY SOFTBANK. Within 10 business days of the execution
of this Agreement, SoftBank shall purchase 80 shares of Preferred Stock at a
purchase price of 2,500,000 Yen per share. (The time of such purchase shall be
referred to herein as the "CLOSING.")
1.07 ADDITIONAL INVESTMENT BY SOFTBANK AFFILIATE. Not later than June
30, 1997, SoftBank shall purchase, or shall cause one of its affiliates to
purchase an additional 120 shares of Preferred Stock at a purchase price of
2,500,000 Yen per share.
1.08 RESERVED SHARES. With the consent of CyberCash and SoftBank, CCKK
may reserve 20 shares of Common Stock for issuance to CCKK's employees and
consultants pursuant to stock options or other forms of employee benefit plans
as determined by the Board of Directors.
1.09 ADDITIONAL CAPITAL. With the consent of CyberCash and SoftBank,
CCKK may issue additional shares of capital stock in connection with capital
contributions made after the Closing subject to applicable law and due approval
by the Board of Directors. The Articles of Incorporation shall not provide any
stockholder with preemptive rights. The parties acknowledge that they
contemplate selling stock or warrants to Japanese banks as an incentive to the
banks to make use of the services of CCKK. It is not, however, the intention of
the parties to engage in additional financing during the six months after the
Closing that would reduce CyberCash's position to less than 45% of the
outstanding equity capital.
1.10 RESTRICTIONS ON TRANSFER. Neither CyberCash nor SoftBank shall
voluntarily transfer, sell, assign, pledge, hypothecate, give or otherwise
dispose of all or any portion of its Common Stock or any warrants to purchase
Common Stock without the prior written approval of the other party, except in
connection with a termination of the joint venture pursuant to Section 9
hereof. In implementation of the preceding sentence, each certificate
evidencing shares of Common Stock or warrants will bear a restrictive legend.
Any attempted transfer in violation of this Section 1.10 shall be void and
shall not be reflected on CCKK's stock records. This restriction on transfer
shall cease upon the completion of an initial public offering of CCKK's Common
Stock.
1.11 DEADLOCK. Should the Board of Directors be deadlocked and unable
to reach a decision with respect to any major issue for a period of two
consecutive regular meetings, then either CyberCash or SoftBank (the
"DISSENTING PARTY") may offer to sell its shares in CCKK to the other (the
"NON-DISSENTING PARTY") at a price, and on terms and conditions, specified in
writing (the "OFFER"). If the Non-Dissenting Party does not accept the Offer in
writing within 30 days of receiving it, the Dissenting Party shall have an
option to purchase the Non-Dissenting Party's shares in CCKK at the same price,
and on the same terms and conditions as set forth in the Offer. If the
Dissenting Party does not exercise that option within 30 days, it may sell its
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shares to a third party; provided that the sale must be at a price, and on
terms and conditions, no more favorable than those set forth in the Offer.
2. MANAGEMENT AND OPERATIONS OF THE JOINT VENTURE.
2.01 GENERAL. The powers, responsibilities and procedures of the
stockholders, the Board of Directors and the officers shall be as specified in
this Agreement and in the Articles of Incorporation and Bylaws of CCKK. Written
agendas of the subjects or topics to be covered at CCKK stockholder and Board
of Directors meetings shall be distributed to the participants in advance of
such meetings; written descriptions of such meetings or topics to be covered
shall be distributed at such meetings and be the basis of any discussion.
2.02 STOCKHOLDER MATTERS. Annual and special meetings of the
stockholders shall be conducted as provided in the Articles of Incorporation
and the Bylaws.
2.03 BOARD OF DIRECTORS.
(a) CCKK will be managed by a Board of Directors. Initially,
the Board will consist of three members, two of whom will be elected
by CyberCash and one by SoftBank. Upon the closing of the additional
investment by SoftBank or its affiliate contemplated by Section 1.07,
there shall be a fourth director, who shall be designated by SoftBank.
The parties agree so to vote their shares as to effectuate the
foregoing provisions. The powers and duties, indemnification and other
terms and conditions of such directors shall be as defined and set
forth in the Bylaws of CCKK.
(b) Subject to Section 2.03(c), unless otherwise required by
law, decisions of the Board of Directors shall require the affirmative
vote or consent of a majority of the total number of directors.
(c) Any of the following actions by the Board of Directors
shall require the affirmative vote of at least 75% of the directors:
(i) The adoption of, or any material change in, the
business plan and the operating plan for CCKK;
(ii) The approval of the annual budget for CCKK;
(iii) The sale of any equity security other than pursuant
to an employee benefit plan;
(iv) The borrowing during any six-month period in excess
of 50,000,000 Yen.
(v) a merger or combination transaction involving CCKK;
(vi) the appointment or dismissal of the chief executive
officer and the chief operating officer of CCKK;
(vii) a sale of all or substantially all of CCKK's
assets; and
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(viii)any purchase of securities having a value of more
than 10,000 Yen (other than the purchase of
money-market instruments for the purpose of cash
management).
2.04 ADVISORY COUNCIL.
(a) Within one year after the Closing, CyberCash and SoftBank
shall mutually agree on the appointment of an Advisory Council
consisting of two or three senior executives from the financial
institutions taking part in the business of CCKK or investing in CCKK,
and/or senior and respected governmental officials, either currently
active or retired.
(b) The management and directors of CCKK shall consult the
Advisory Council for advice on matters of policy and strategy and
shall seek the assistance of the Advisory Council with respect to
making contacts and forming relationships with persons and financial
institutions and other companies who may be helpful to CCKK.
(c) In the event that the Board of Directors of CCKK is
deadlocked with respect to any major decision, the Board of Directors
shall seek the advice of the Advisory Council, which, in addition to
providing advice and guidance on the issue in question, may act as
mediator to assist the Board of Directors to reach a decision and to
avoid future deadlocks.
2.05 OPERATING MANAGEMENT. The Board of Directors may appoint
officers to manage CCKK.
2.06 ACCOUNTING. CCKK will retain a firm of independent certified
public accountants, at CCKK's expense, to audit its financial statements
annually.
3. DEVELOPMENT OF LOCALIZED SOFTWARE.
3.01 SOFTWARE DEVELOPMENT AGREEMENT. Prior to Closing CyberCash and
CCKK shall enter into a Software Development Agreement pursuant to which
CyberCash shall agree to do the customization and localization work necessary
to adapt the CyberCash Technology to the Japanese Market pursuant to
specifications developed as provided below and to convey the software so
developed to CCKK (the "SDA"). This work shall include modification of the
CyberCash Gateway Software, the CyberCash Wallet Software, and the CyberCash
Merchant Software in their current form for use in Japan. (The software so
modified is referred to herein as the "LOCAL SOFTWARE.") The SDA shall provide
that CCKK shall agree to pay CyberCash its fully-burdened cost plus $100,000
(not to exceed US $1,100,000) of performing the development work. CCKK shall
make an initial payment of US $600,000. CyberCash shall furnish CCKK with
monthly statements setting forth the progress of the work and the cost of the
time and materials incurred. After the sum of the statements exceeds US
$600,000, CCKK shall pay the outstanding balance within 15 days of
presentation.
3.02 PROJECT PLAN. The parties to this JV Agreement shall
cooperate in the preparation not later than July 15, 1997 of a Project Plan for
the joint venture. The Project Plan shall provide for a schedule for the
development of the Local Software, a plan for an experimental operation, in
which Japanese banks will be invited to participate, and a plan for the
commencement of full commercial operations. Both CyberCash and SoftBank must
approve the commencement of full commercial operations. The Project Plan shall
include the following: (i) a
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development plan for software specifications, (ii) a training schedule, (iii) an
assurance testing plan, (iv) a business plan for the joint venture (including a
marketing plan), (v) an implementation plan for both the pilot phase and the
full implementation of each service and (vi) a fee payment schedule.
3.03 SALE OF BUSINESS. CyberCash shall not transfer all or
substantially all of its assets or business to any third party unless and until
the third party has executed a written agreement pursuant to which the third
party is bound by all of the terms and conditions of this Agreement.
4. LICENSE OF MARKS.
4.01 LICENSE OF MARKS. CyberCash will grant, at no cost to CCKK a
license to use in Japan the CyberCash name and all trademarks and service marks
of CyberCash associated with the CyberCash Services.
4.02 ACCESS TO THE CYBERCASH GATEWAY SYSTEM. CCKK will have access to
any other Gateways that CyberCash currently, or in the future, operates or
licenses as part of its global Internet payments system for the purpose of
processing transactions involving a transaction party outside of Japan or
involving currencies other than the Yen, subject to the terms and conditions
that CyberCash establishes for connections to other Gateways, including
compliance with its global system operating rules and connectivity standards
and the payment of standard transaction processing fees.
4.03 ALL NECESSARY RIGHTS. CyberCash represents that (i) it has and
will have during the term hereof all necessary rights to grant CCKK the license
to use CyberCash's service marks and trademarks as provided in this Section 4,
and (ii) there are no outstanding claims or pending lawsuits on the date of
this Agreement in connection with any aspect of these service marks and
trademarks.
5. UPGRADES AND MAINTENANCE.
5.01 SCOPE OF MAINTENANCE. Pursuant to the SDA, CyberCash shall
provide maintenance releases, remote support and software defect corrections
for the Local Software. CyberCash shall also provide CCKK with all upgrades to
the Local Software. CyberCash shall not be required to provide maintenance and
support of releases of Local Software that are more than one release prior to
the current release.
5.02 FEES AND EXPENSES. CCKK shall reimburse CyberCash for the fully
burdened costs it incurs in performing maintenance of the Local Software, and
in providing customized versions of maintenance and upgrade releases; provided
that such costs shall be limited to the incremental costs incurred by CyberCash
for work particular to CCKK and will not include costs incurred with respect to
general maintenance and upgrades of its software and technology. CCKK shall
also pay any travel expenses of CyberCash personnel reasonably necessary to
perform maintenance and upgrade work or installation under this Section 5.
5.03 SET COMPLIANCE. The Local Software shall be compliant with the
latest version of the SET Protocol available. As soon as possible after SET
Protocol version 1.0 is available, necessary revision shall be made to the
Local Software so that it is made compliant therewith.
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6. TRAINING OF EMPLOYEES.
CyberCash shall provide initial training for personnel employed by
CCKK in the operation and maintenance of the Local Gateways on the training
schedule established in the Project Plan. The training shall be provided at
CyberCash's facilities and shall be available to personnel possessing minimum
qualifications specified by CyberCash. CCKK shall pay the travel and living
expenses of the trainees, and CyberCash shall be responsible for the remaining
costs of training.
7. CONFIDENTIALITY.
7.01 CONFIDENTIAL INFORMATION. The parties acknowledge that they,
their subsidiaries and affiliated companies are the owners of valuable trade
secrets and other confidential information and that they license Confidential
Information from others.
7.02 NON-DISCLOSURE. All Confidential Information disclosed by one
party to the other party in connection with the joint venture shall remain the
property of and be deemed proprietary to the disclosing party. The receiving
party agrees to receive Confidential Information in strict confidence, to hold
Confidential Information in trust for the disclosing party and to use
Confidential Information solely and exclusively in accordance with the terms of
this JV Agreement in order to carry out the purposes set forth in Section 1.02
hereof. Notwithstanding the preceding, no party to this JV Agreement shall be
liable for disclosure or use of Confidential Information if the Confidential
Information was properly in the public domain at the time it was disclosed or
is publicly released in response to a subpoena, court order or other legal
process under circumstances in which a protective order or confidentiality
agreement has been requested but rejected by the appropriate judicial or other
lawful authority.
7.03 INJUNCTIVE RELIEF. The parties hereto acknowledge that their
remedies under this JV Agreement or otherwise available at law in the event of
a disclosure of any Confidential Information or any default or threatened
default by either party in the performance of its obligations under this
Section 7 will be inadequate and agree that the terms of this Section 7 shall
be enforceable by a decree for the specific performance thereof by the
defaulting party, or by an injunction against any violation of its terms, or
otherwise. The parties hereto further acknowledge and agree that the covenants
contained herein are necessary for the protection of legitimate business
interests of both parties, their subsidiaries and/or affiliated companies and
are reasonable in scope and content.
8. CLOSING. Subject to the satisfaction of the conditions specified in
this Section 8 and on the terms set forth herein, the Closing shall take place
within 10 days after the execution of the Agreement at a place and time to be
determined by the parties.
9. TERMINATION.
9.01 TERMINATION. This JV Agreement may be terminated only as
follows:
(a) By written agreement of the parties hereto at any time;
(b) Automatically after five years as provided in Section 1.03
hereof, unless the parties hereto agree to extend the term of the
Agreement;
(c) Upon the expiration of the term of CCKK and its liquidation and
termination.
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9.02 EFFECT OF TERMINATION. In the event that this JV Agreement is
terminated pursuant to Section 9.01, this Agreement shall terminate without any
liability or further obligation of any party to another, except for any breach
of this JV Agreement prior to termination. Sections 4.03, 7 and 10 shall
survive any expiration or termination of this Agreement.
10. DISPUTE RESOLUTION.
Disputes arising under this JV Agreement shall be resolved by
arbitration in Tokyo pursuant to the rules of the Japan Commercial Arbitration
Association or such other arbitral body as the parties shall select by mutual
agreement. This JV Agreement shall be interpreted in accordance with the laws
of Japan, without regard to its rules governing choice of law.
11. MISCELLANEOUS PROVISIONS.
11.01 NOTICES. All notices, consents, requests and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when (a) delivered by hand, (b) sent by telecopier (with receipt
confirmed), provided that a copy is sent in the manner provided in clause (c),
or (c) when received by the addressee, if sent by DHL, Federal Express,
Airborne Express or other generally recognized international express delivery
service (receipt requested), in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate as to itself by notice to the other parties):
(a) If to SoftBank:
SoftBank Corp.
0-00-0 Xxxxxxxxxx-Xxxxxxx
Xxxx-xx
Xxxxx 000 Xxxxx
Telecopier No.: 00-0-0000-0000
Attention: Yoshitaka Kitao, Executive Vice President
(b) If to CyberCash:
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to the General Counsel
11.02 HEADINGS. The headings in this JV Agreement are for
convenience of reference only and shall not be given any effect in the
interpretation of the JV Agreement.
11.03 COUNTERPARTS. This JV Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
11.04 ASSIGNMENT. All of the terms and provisions of this JV
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their
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respective successors and permitted assigns. This JV Agreement shall not be
assignable or transferable by either party hereto without the prior written
consent of the other party hereto.
11.05 ENTIRE AGREEMENT; AMENDMENT. This JV Agreement with the annexed
Exhibits and Schedules sets forth the entire understanding between the parties
relating to the subject matter contained herein and merges all prior
discussions between them. No amendment to this JV Agreement shall be effective
unless it is in writing and executed by the parties hereto.
11.06 SEVERABILITY. Any term or provision of this JV Agreement which
is invalid or unenforceable will be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the
remaining rights of the person intended to be benefited by such provision or
any other provisions of this JV Agreement.
11.07. NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this JV Agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this JV Agreement. Any
waiver must be in writing.
11.08. INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules attached hereto are incorporated in this JV Agreement and shall be
deemed a part hereof as if set forth herein in full. References herein to "this
JV Agreement" and the words "herein," "hereof" and words of similar import
refer to this JV Agreement (including its Exhibits and Schedules) as an
entirety. In the event of any conflict between the provisions of this JV
Agreement and any such Exhibit or Schedule, the provisions of this JV Agreement
shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this JV Agreement
to be duly executed, as of the date first above written.
CYBERCASH, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
CYBERCASH JAPAN C.V.
By: CyberCash International C.V.
By: Reston Parkway II, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
SoftBank Corp.
By: /s/ Yoshitaka Kitao
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Name: Yoshitaka Kitao
Title: Executive Vice President
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