EXHIBIT 10.11
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
JOINT VENTURE AGREEMENT
JOINT VENTURE AGREEMENT, dated as of November 6, 1997, by and between
SOFTBANK Corporation, a Japanese corporation ("SOFTBANK"), and GeoCities, a
California corporation ("GeoCities").
WHEREAS, GeoCities offers in the United States and certain other
geographic areas certain hosting and marketing services on the World Wide Web,
including, without limitation, GeoCities virtual communities.
WHEREAS, SOFTBANK is a leading computer publisher and software
distributor in Japan;
WHEREAS, SOFTBANK indirectly owns a minority interest in GeoCities
through one of its subsidiaries;
WHEREAS, SOFTBANK and GeoCities wish to form a joint venture company
in Japan called GeoCities Japan Corporation to establish and manage in Japan a
Japanese version (using the Japanese language) of the GeoCities virtual
communities on the internet, virtual community services, and conduct other
related businesses and;
WHEREAS, on July 16, 1997, SOFTBANK incorporated GeoCities Japan
Corporation, a Japanese corporation (the "Company") and GeoCities intends to
purchase 40% of the shares thereof in accordance with the procedures stipulated
in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Objectives of the Company
-------------------------
The objectives of the Company shall be to engage in the businesses set forth
below.
(i) establishment and management in Japan of a Japanese version
of the GeoCities virtual communities on the internet;
(ii) development of related Japanese virtual communities services;
(iii) related sale of virtual communities advertisement space;
(iv) addition of Japanese specific informational content to the
mirror site database in Japan;
(v) other businesses relating to the foregoing as agreed upon by
the parties from time to time.
2. Sale and Purchase of Shares; Ownership of the Company
-----------------------------------------------------
(a) Object to the terms and conditions hereof, SOFTBANK agrees to sell,
and GeoCities agrees to purchase, 1,600 shares of Common Stock of the
Company (the "Shares") at a price of (Yen)50,000 per share so that
after such sale SOFTBANK
shall own 2,400 shares of Common Stock and GeoCities shall own 1,600
shares of Common Stock of the Company.
(b) Within five (5) days of the execution of this Agreement, SOFTBANK
shall deliver to GeoCities stock certificates representing the Shares
and registered in the name of SOFTBANK, against payment by GeoCities
of (Yen)80,000,000 therefor in immediately available funds to a bank
account designated by SOFTBANK. The completion of the purchase of
1,600 Shares by GeoCities shall be referred to hereafter as the
"Closing". The payment for the Shares shall be made in the currency of
Japanese Yen.
3. Representations and Warranties of SOFTBANK
------------------------------------------
SOFTBANK hereby represents and warrants to GeoCities as follows:
(a) SOFTBANK has been duly incorporated, and is a validly existing
corporation under the laws of Japan and has full power and authority
to enter into and perform its obligations under this Agreement
(b) This Agreement has been duly authorized, executed and delivered by
SOFTBANK and constitutes a valid and binding agreement of SOFTBANK,
enforceable against SOFTBANK in accordance with its terms.
(c) The company has been incorporated on July 16, 1997 as a kabushiki
kaisha (a stock limited company). The registered office of the
Company is at 00-0, Xxxxxxxxxx-Xxxxxxxxxxx, Xxxx-xx, Xxxxx 000, Xxxxx.
The Company is a corporation under the laws of Japan and has full
power and authority to carry on its business as described in this
Agreement. Attached hereto as Exhibit A is true and correct copy of
the Articles of Incorporation of the Company ("teikan") and true and
complete English translation thereof.
(d) The Company's authorized capital is 16,000 shares of Common Stock, par
value (Yen)50,000 per share, of which 4,000 shares are issued and
outstanding. Prior to the Closing, SOFTBANK purchased such 4,000
shares for a purchase price of (Yen)50,000 per share in cash, and
SOFTBANK owns all of such issued and outstanding shares of the
Company. There are no options, warrants or commitments of any kind
relating to the capital stock of the Company, including any preemptive
or other rights to purchase its capital stock.
(e) The Shares have been duly authorized (including any required approval
by the Board of Directors of the Company) and validly issued and are
fully paid and non-assessable. Title to the Shares will be transferred
from SOFTBANK to GeoCities upon physical delivery of the stock
certificates to GeoCities at the Closing, free and clear of all liens,
encumbrances, equities or claims.
(f) Prior to the Closing, the Company has not been engaged in any business
or activities and has not entered into to any contracts, except as
contemplated by this
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Agreement and the Company has net assets of (Yen)200,000,000 in the
form of cash and cash equivalents.
(g) The Company has no mutual liabilities, contingent or otherwise, and
the Company has complied in all material respects with all laws and
regulations. There is no mutual litigation pending or threatened, and
no basis therefor known to the Company, to which the Company is or
would be a party, to which any of the Company's assets are or would be
subject, or which question or challenge this Agreement or the
transactions contemplated hereby.
(h) No consent, approval or authorization of or declaration or filing with
any governmental authority or other person or entity on the part of
SOFTBANK is required in connection with the execution or delivery of
this Agreement or the consummation of the transactions contemplated
hereby other than as described in Section 15 hereof.
(i) A certified copy of the commercial register of the Company ( and a
true and complete English translation thereof) is attached to this
Agreement as Exhibit B, and all information contained therein is
complete and accurate.
4. Representations and Warranties of GeoCities
-------------------------------------------
GeoCities represents and warrants to SOFTBANK as follows:
(a) GeoCities has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of
California, and has full power and authority to enter into and perform
this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
GeoCities and constitutes a valid and binding agreement of GeoCities,
enforceable against GeoCities in accordance with its terms.
(c) No consent, approval or authorization of or declaration or filing with
any governmental authority or other person or entity on the part of
GeoCities is required in connection with the execution or delivery of
this Agreement or the consummation of the transactions contemplated
hereby other than as described in Section 15 hereof.
5. Licensing Agreement
-------------------
Concurrently with the execution of this Agreement, GeoCities shall enter
into a licensing agreement, in the form of Exhibit C attached hereto (the
"Licensing Agreements"), with the Company.
6. Board of Directors; Statutory Auditors
--------------------------------------
(a) The total number of Directors comprising the Board shall be five.
SOFTBANK shall designate three Directors, and GeoCities shall
designate two Directors.
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(b) The Company shall have one Statutory Auditor, which shall be
designated by SOFTBANK.
(c) The Company shall have one Representative Director, who shall be the
President. The President and Representative Director shall be
appointed by SOFTBANK.
(d) In case of a vacancy in the office of Director, Statutory Auditor or
Representative Director during the term of office for whatever reason,
the vacancy shall be filled by the party that nominated the Director,
Statutory Auditor or Representative Director whose office became
vacant.
(e) At any annual or special meeting of shareholders or any meeting of the
Board of Directors called for such purpose, each party shall vote or
cause to be voted all shares owned by it for the election of nominees
designated as Directors, Statutory Auditor or Representative Director
in accordance with this Section 6 and otherwise as may be necessary to
implement the provisions of this Agreement.
(f) No change shall be made in the number and/or allocation of Directors,
Statutory Auditor or Representative Director as stated in this Section
6 or in the Articles of Incorporation of the Company; provided that if
the parties' respective shareholdings change, the parties shall adjust
the number and allocation of Directors and the designation or
nomination of the Statutory Auditor or Representative Director if and
to the extent appropriate so that their respective representation on
the Board and in the Company is generally proportionate to their
respective shareholdings.
7. Management of the Company
-------------------------
(a) The Board of Directors of the Company shall be responsible for
establishing the overall policy and operating procedures with respect
to the business affairs of the Company.
(b) Except as otherwise required by mandatory provisions of law and as
otherwise provided herein, resolutions of the Board of Directors shall
be adopted only by the affirmative vote of a majority of the Directors
present at a meeting duly called at which a quorum is present. A
majority of the Board of Directors shall constitute a quorum for the
transaction of business provided at least one Director designated by
GeoCities is present. Board meetings shall be held in Japan in
accordance with applicable law provided that the Board of Directors
shall meet no less frequently than once in each calendar month.
(c) Notwithstanding the general provisions set forth above, in addition to
any special approval requirements under the Articles of Incorporation
or under law, each of the following corporate actions may be taken by
the Company only (i) in the case of any action that is permitted by
law or under the Articles of Incorporation to be taken by the Board of
Directors alone, upon authorization by affirmative vote of at least
one SOFTBANK director and at least one GeoCities director and (ii) in
the case of actions required by law or the Articles of Incorporation
to be approved
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by the Company's shareholders, upon authorization by affirmative vote
of both GeoCities and SOFTBANK as shareholders:
(i) any merger or consolidation, whether or not the Company is
the surviving corporation; any sale, lease, exchange or
other disposition of all or substantially all of the
assets of the Company; any acquisition of all or
substantially all of the capital stock or assets of any
other entity; or the liquidation or voluntary dissolution
of the Company;
(ii) any capital expenditure of (Yen)10 million or more;
(iii) the raising of additional equity capital or the issuance
or sale of any debt or equity securities (including any
shareholder loan or guaranty) and the terms thereof,
whether or not in connection with a call for additional
capital pursuant to Section 8 hereof;
(iv) any declaration or payment of any dividend or other
distribution, directly or indirectly, on account of any
shares of capital stock of the Company, or any redemption,
retirement, purchase or other acquisition, directly or
indirectly, by the Company of any such shares (or of any
warrants, rights or options to acquire any such shares);
(v) the incurrence or guarantee (directly or indirectly) by
the Company with respect to any indebtedness for borrowed
money in excess of (Yen)10 million;
(vi) any amendment, alteration or repeal of any provision of
the Articles of Incorporation of the Company; or
(vii) approval of an annual business plan and operating budget
for the Company (which shall be made no later than thirty
(30) days prior to the commencement of each fiscal year of
the Company), and any deviation in any material respect
from such business plan or budget as so approved;
8. Additional Capital
------------------
(a) In the event that the Company requires capital in excess of two
hundred million yen ((Yen)200,000,000), SOFTBANK will make this
additional capital available to the Company without dilution to
GeoCities equity share. The mechanism by which such additional capital
is made available shall be mutually agreed upon by SOFTBANK and
GeoCities.
(b) Subject to Section 7(c) hereof, the Board may, by written notice to
the parties, call for the parties to subscribe for additional shares
of capital stock of the Company or to make loan guarantees or loans to
the Company in proportion to their
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respective holdings of Common Stock at any time. Each party agrees to
provide such additional capital or support in accordance with the
Board's action.
9. Disposition of Common Stock
---------------------------
Neither party shall directly or indirectly sell, assign, transfer or
otherwise dispose of, or pledge or otherwise encumber, any shares of Common
Stock of the Company without the prior consent of the other party; provided
that, at such time as the shares of the Company are publicly traded, either
party shall be entitled to make sales of its shares in the open market to the
extent permitted by applicable law.
10. Accounting; Access to Information
---------------------------------
(a) The fiscal year of the Company shall be from the first day of April of
each year to the 31st day of March of the following year.
(b) The Company shall maintain its accounts and prepare its financial
statements (including, without limitation, a balance sheet, profit and
loss statement and statement of cash flows) in accordance with
generally accepted accounting principles in Japan, and shall cause its
annual financial statements to be audited by an internationally
recognized independent auditing firm reasonably acceptable to each
party, and such financial statements and the auditors' opinion to be
delivered to each party no later than sixty (60) days following the
end of each fiscal year. The Company also shall deliver to each party
unaudited monthly and quarterly financial statements within thirty
days following the end of each month or fiscal quarter, as the case
may be, certified (in the case of quarterly financial statements) by
the chief accounting officer of the Company. All annual and quarterly
financial statements shall be accurately and completely translated
into English at the expense of GeoCities prior to delivery to
GeoCities.
(c) Each party shall, during normal business hours and at all other times
as reasonable, have access to the books and records of the Company and
to the legal, tax and auditing personnel of the Company, internal and
external; provided, however, that the cost and expense necessary for
such inspection shall be borne by the party making the inspection.
11. Term of the Agreement
---------------------
Subject to Section 13, this Agreement shall remain in effect perpetually,
provided that, if as of April 1, 2001, or any April 1 thereafter, (i) the
Company has sustained net losses (determined in accordance with generally
accepted Japanese accounting principles and certified by the Company's
independent auditors) for the [***] preceding such April 1, and (ii) GeoCities
and SOFTBANK, in good faith, differ with respect to the future business plans
and prospects of the Company, then each party shall have the right to terminate
this Agreement, which termination shall be effective ninety (90) days following
notice thereof to the other party.
______________________
[***] Confidential treatment requested for redacted portion.
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12. Termination of the Agreement
----------------------------
(a) If either party fails in any material respect to perform or fulfill in
the time and manner herein provided any obligation or condition herein
required to be performed or fulfilled by such party, and if such
default shall continue for sixty (60) days after written notice
thereof from the other party, then the other party shall have the
right to terminate this Agreement by written notice of termination to
the defaulting party at any time after such sixty (60) days, or
longer, if the breach cannot be reasonably cured within sixty (60)
days and the failing party is making diligent efforts to cure it.
Either party may also terminate this Agreement immediately by giving a
written notice to the other party in the event such other party shall
be dissolved or liquidated or declared insolvent or bankrupt.
(b) Upon termination of this Agreement, the parties shall negotiate in
good faith the possible purchase by one party of all the shares in the
Company held by the other party or the sale of the Company to a third
party. If such negotiation fails to result in a mutually acceptable
agreement, the Company shall be dissolved in accordance with Japanese
law.
(c) Termination of this Agreement for any reason shall not release either
party from any liability which at the time of termination has already
accrued to the other party or which thereafter may accrue in respect
of any act or omission prior to such termination.
13. Confidentiality
---------------
Each party shall hold and shall cause its respective representatives to
hold in confidence all confidential information made available to it or its
representatives by the other party, directly or through the Company, and shall
not pass such information on, wholly or partly, to third parties without the
written consent of the other party, unless such information (i) becomes
generally available to the public other than as a result of a disclosure by such
party or its representatives, (ii) becomes available to such party from other
sources not known by such party to be bound by a confidentiality obligation, or
(iii) is independently acquired by such party as a result of work carried out by
any employee or representative of such party to whom no disclosure of such
information has been made.
14. Government Filing
----------------
(a) Within fifteen (15) days following the date of the Closing, GeoCities
will submit the required notification to the Bank of Japan under the
Foreign Exchange and Foreign Trade Control Law.
(b) If any Japanese withholding taxes are imposed on dividends payable to
GeoCities by the Company under Section 11, the Company shall withhold
such amounts, pay the same to the Japanese tax authority, and promptly
furnish GeoCities with appropriate documentation of the amounts so
withheld as soon as practicable. The Company shall cooperate with
GeoCities to make any necessary filings to utilize
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the lowest available withholding rate under applicable treaty between
Japan and the United States.
15. Other Ventures
--------------
(a) Neither party will engage directly or indirectly in any business
activities in Japan that compete with the business activities of the
Company in Japan; provided that GeoCities may continue to make
available its services and any other properties or products in
languages other than Japanese.
(b) GeoCities hereby agrees to discuss in good faith with SOFTBANK joint
efforts to establish similar ventures in Europe and other
international markets where SOFTBANK or its affiliates (which term is
intended to be limited to entities controlled by or under common
control with SOFTBANK and/or entities in which SOFTBANK takes an
active role in such entities' management) have operations and are the
appropriate partners; provided that the foregoing shall not obligate
either party to enter into any such arrangement.
16. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
laws of Japan.
17. Dispute Resolution
------------------
All disputes between the parties hereto arising directly or indirectly out
of this Agreement shall be settled by the parties amicably through good faith
discussions upon the written request of either party. In the event that any such
dispute cannot be resolved thereby within a period of thirty (30) days after
such notice has been given, such dispute shall be finally settled by arbitration
by three arbitrators. If GeoCities commences such arbitration, it shall be held
in Japan, using the English language, and in accordance with the rules then in
effect of the Japan Commercial Arbitration Association. If SOFTBANK commences
such arbitration, it shall be held in the U.S.A., using the English language,
and in accordance with the rules then in effect of the American Arbitration
Association.
18. Miscellaneous
-------------
(a) This Agreement may be amended only by a written instrument signed by
both parties.
(b) This Agreement may not be assigned by either party hereto except with
the written consent of the other party; provided, however, that this
Agreement may be assigned to a corporation which shall succeed to the
business of a party by merger, consolidation, or the transfer of all
or substantially all of the assets of such party and which shall
expressly assume the obligations of such party hereunder.
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(c) Any and all notices, requests, demands and other communications
required or otherwise contemplated to be made under this Agreement
shall be in writing and in English and shall be deemed to have been
duly given (a) if delivered personally, when received, (b) if
transmitted by facsimile, upon receipt of a confirmation of receipt,
(c) if sent by registered airmail, return receipt requested, postage
prepaid, on the sixth business day following the date of deposit in
the mail or (d) if by international courier service, on the second
business day following the date of deposit with such courier service,
or such earlier delivery date as may be confirmed to the sender by
such courier service. All such notices, requests, demands and other
communications shall be addressed as follows;
(i) If to SOFTBANK:
SOFTBANK Corporation
00-0, Xxxxxxxxxx-Xxxxxxxxxxx
Xxxx-xx, Xxxxx 000, Xxxxx
Attention: Mr. Xxxxxxxxx Xxx
President and Chief Executive Officer
Telephone: (000) 0000-0000
Facsimile: (000) 0000-0000
(ii) If to GeoCities:
GeoCities
0000 Xxxx Xxxxxx Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
XXX
Attention: Xxxxx Xxxxxxx
President and Chief Executive Officer
Telephone: (000) 000-0000, Ext. 201
Facsimile: (000) 000-0000
With a copy to:
GeoCities
0000 Xxxx Xxxxxx Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
XXX
Attention: Xx Xxxxxx, General Counsel
Telephone: (000) 000-0000, Ext. 251
Facsimile: (000) 000-0000
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Or in each case to such other address or facsimile number as the party may have
furnished to the other party in writing.
(d) In the event of the invalidity or unenforceability of any part or
provision of this Agreement, such invalidity shall not affect the
validity or enforceability of any other part or provision of this
Agreement.
(e) No waiver by any party of any default in the performance of or
compliance with any provision herein shall be deemed to be a waiver of
the performance and compliance as to any other provision, or as to
such provision in the future; nor shall any delay or omission of any
party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter. No remedy
expressly granted herein to any party shall be deemed to exclude any
other remedy which would otherwise be available.
(f) This Agreement including the exhibits hereto constitutes the entire
agreement among the parties with respect to the subject matter hereof
and shall supersede all prior understandings and agreements between
the parties with respect to such subject matter. This Agreement may
be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and
the same instrument.
(g) Nothing herein expressed or implied is intended to or shall be
construed to confer upon or give to any person, firm, corporation or
legal entity, other than the parties hereto and their affiliates, any
interests, rights, remedies or other benefits with respect to or in
connection with any agreement or provision contained herein or
contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have duly signed this Agreement as
of the day and year first above written.
SOFTBANK CORPORATION
By: /s/ Xxxxxxxxx Xxx
----------------------------------
Name: Xxxxxxxxx Xxx
Title: President
GEOCITIES
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: President & CEO
Attachments:
Exhibit A Articles of Incorporation of Company.
Exhibit B Commercial Register of the Company.
Exhibit C Licensing Agreement
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