Joint Venture Agreement
EXHIBIT 10.1
This Joint Venture Agreement ("Agreement"), made on September 5, 2018 by and between QUANTA, of 0000 X XXXXXXXX XXXX, XXXXXXX, Xxxxxxxxxx 00000 and 2664431
Ontario Inc. (Quanta Canada) of 00 XXXXXXXXXX XXX, XXXXXXX, XXXXXXX, XXXXXX X0X 0X0. The parties are hereinafter sometimes referred to together as the "Joint Venturers" or the "Parties" and individually as a "Joint Venturer" or "Party."
The Parties wish to establish a Joint Venture for the purpose set forth below (the "Joint Venture"); and
The Parties wish to enter into an agreement to carry out the purpose of the Joint Venture and to define the respective rights and obligations of the Parties
with respect to the Joint Venture.
Therefore, in consideration of the mutual promises, covenants, warranties and conditions herein, the Joint Venturers agree as follows:
Name. The parties hereby form and establish a Joint Venture to be
conducted under the name of Quanta Canada, (hereinafter referred to as the "Joint Venture"). The Joint Venturers agree that the legal title to the Joint Venture property and assets, including the Joint Venture itself, shall remain in the name of
the Joint Venture.
Place of Business & Term. The principal place of business of
the Joint Venture shall be located at 00 XXXXXXXXXX XXX, XXXXXXX, XXXXXXX, XXXXXX X0X 0X0. The term of the Joint Venture shall commence on the execution date hereof and shall continue for 30 Months provided, however, that the Joint Venture shall
be dissolved prior to such date upon the sale or disposal of the Joint Venture and the payment or satisfaction of all debts of the Joint Venture.
Purpose and Exclusivity. The Joint Venturers form this Joint
Venture to: To extend the Quanta brand, technology and product lines into the Canadian markets. To the extent set forth in this Agreement, each of the Joint Venturers shall own an undivided fractional part in the business. The Joint Venture shall
not engage in any other new associated business or activity without the written consent of the Joint Venturers. Venturers mutually agree to extend exclusivity in the nation of Canada for a period of one year from the execution date of this
agreement. Future grant of exclusivity will be determined by performance metrics that shall be set and agreed upon at a later date.
First-Look Rights. Quanta agrees to extend Quanta Canada rights to
first look upon any third party offer to buy-out the main corporation as long as Quanta Canada remains in good standing with the terms and conditions of the agreement.
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Capital. Separate capital accounts shall be maintained for each
Joint Venturer and shall consist of the sum of its contributions to the capital of the Joint Venture plus its share of the profits of the Joint Venture, less its share of any losses of the Joint Venture, and less any distributions to or
withdrawals made by or attributed to it from the Joint Venture. The initial contributions from each of the Joint Venturers, for the purpose of this Joint Venture, is the sum set after the name of each Joint Venturer as follows:
Quanta $302,775.00 (current investment in new machinery)
Canada Corp $302,775.00 (licensing fee due upon execution)
The Joint Venturers shall make such other capital contributions required to enable the Joint Venture to carry out its purposes as set forth herein as the
Joint Venturers may mutually agree upon. The Joint Venturers shall arrange for or provide any financing as may be required by the Joint Venture for carrying out the purposes of the Joint Venture. The terms and conditions of all such loans shall
be subject to prior approval of the Joint Venturers. The Joint Venturers shall endorse, assume, or guarantee such obligations of the Joint Venture as the Joint Venturers may mutually agree upon.
Percentage Interest In The Joint Venture. The respective percentage
interest in the Joint Venture owned by each Joint Venturer, respectively, is as follows:
Quanta 50
Canada Corp 50
Profits. The net profits as they accrue for the term of this
Agreement, or so long as the Joint Venturers are the owners in common of the business interest, shall be distributed between the Joint Venturers, based on the respective percentage interest in the Joint Venture owned by each Joint Venturer as
follows:
Quanta 50
Canada Corp 50
Expenses of Venture. All losses and disbursements in acquiring,
holding and protecting the business interest and the net profits shall, during the period of the venture, be paid by the Joint Venturers, in the ratio which the contribution of each Joint Venturer bears to the total contributions upon consent of
both Venturers.
Duties of Joint Venturers. The duties of Quanta are: Quanta shall
provide a turnkey system for implementation and commercialization of its core technology and all its uses. This shall include providing a simple, proven model for formulation, product manufacturing and licensing revenue generation. The company
will provide global marketing and educational content and marketing. Quanta will also provide all hardware and packaging for future production of Quanta branded products.
The duties of Quanta Canada are: shall focus on revenue generation via regional, national and international distribution and exportation.
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Powers of Joint Venturers. The following powers may be exercised
only upon the consent of the Joint Venturers:
(a) The power to borrow money on the general credit of the Joint Venture in any amount, or to create, assume, or incur any indebtedness to any person or
entity;
(b) The power to make loans in any amount, to guarantee obligations of any person or entity, or to make any other pledge or extension of credit;
(c) The power to purchase or otherwise acquire any other property except in the ordinary course of business of the Joint Venture;
(d) The power to sell, encumber, mortgage or refinance any loan or mortgage on any of the Joint Venture property;
(e) The power to confess any judgment against the Joint Venture, or to create, assume, incur or consent to any charge (including any deed of trust, pledge,
encumbrance or security interest of any kind) upon any property or assets of the Joint Venture;
(f) The power to spend any renovation or remodeling funds or to make any other expenditures except for routine day-to-day maintenance and operation of the
Joint Venture.
Confidential Information. "Confidential Information" means
nonpublic information that (a) the disclosing Party designates as confidential, or (b) information which, under the circumstances surrounding disclosure, ought to be treated as confidential. Confidential Information may include, without
limitation, Technology, Technology Improvements, Derivative Works, Intellectual Property Rights, Marketing Materials, ideas, know-how, methods, formulae, processes, designs, apparatus, devices, techniques, systems, flow charts, sketches,
photographs, plans, drawings, specifications, computer programs or software, samples, studies, findings, data, reports, projections, plant and equipment expansion plans, lists or identities of employees, customers or X6Ds, financial statements or
other financial information, pricing information, cost and expense information, product development and marketing plans, compositions of matter, discoveries and inventions (whether or not patentable), works of authorship (whether or not protected
under copyright laws), information, algorithms, procedures, notes, summaries, descriptions, results and the like.
Derivative Works. "Derivative Works" means works that are based
upon one or more preexisting works, such as: (a) for copyrightable or copyrighted material, any translation, portation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment, revision or other form in which
such material may be recast, transformed, or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material that is protected by trade secret, any new material derived from such existing trade secret material,
including new material that may be protected by any of copyright, patent, and trade secret.
Intellectual Property Rights. "Intellectual Property Rights" means
any and all patent, copyright, trademark, trade secret, know-how, trade dress or other intellectual or industrial property rights or proprietary rights (including, without limitation, all claims and causes of action for infringement,
misappropriation or violation thereof and all rights in any registrations, applications and renewals thereof), whether existing now or in the future, whether worldwide or in individual countries or political subdivisions thereof, or regions,
including, without limitation, the United States.
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Technology. "Technology" means materials, packaging, products,
know-how and methods of manufacturing thereof as provided by a Party herein, and including all Intellectual Property Rights embodied therein and any Derivative Works thereof. Technology further means, without limitation, any designs, materials,
methods, formulae, processes, technology, apparatus, devices, techniques, systems, flow charts, sketches, photographs, plans, drawings, specifications, proprietary information, know-how, trade secrets, computer programs or software, samples,
studies, findings, data, reports, projections, manufacturing specifications and methods, testing specifications and methods, pricing information, cost and expense information, product development and marketing plans, compositions of matter,
discoveries and inventions (whether or not patentable), works of authorship (whether or not protected under copyright laws), information, algorithms, procedures, notes, summaries, descriptions and development results related to any materials,
packaging, products, know-how and methods of manufacturing thereof.
Technology Improvements. "Technology Improvements" means any
proprietary information, know-how, trade secrets, programs, designs, processes, methods, formulae, compositions of matter, documents, materials, technology, data, Intellectual Property Rights, or Derivative Works in developments and/or
conceptions created, obtained or developed by either Party alone (including through the efforts of any independent contractor or affiliate of that Party) or together with the other Party that: (a) are based on, derived from or are direct
improvements to Technology, (b) can be used in or in the production of Technology, or (c) provide alternatives for use in the production of Technology that, if so used, reasonably would: (i) add Technology capability or increase Technology
efficiency or quality, (ii) reduce Technology manufacturing or Technology costs, and/or (iii) facilitate the manufacturing of Technology.
Treatment of Proprietary and Confidential Information.
1. In connection with the performance of this Agreement, each Party contemplates the
disclosure by it of certain Confidential Information to the other Party. Each Party considers its Confidential Information to be an asset of substantial commercial value, having been developed at considerable expense, but will disclose such
information to the other Party under the terms and conditions of this Agreement.
(a) During the Term and continuing thereafter for 30 months from the termination or expiration of the Agreement, the Party receiving Confidential
Information ("Receiving Party") from the disclosing Party ("Disclosing Party") shall (i) treat all Confidential Information disclosed by the Disclosing Party as secret and confidential and shall not disclose all or any portion of the Confidential
Information to any other Person, except as provided in section 1.1(b), (ii) not use any of such Confidential Information except in the performance of the Receiving Party's covenants and obligations or otherwise as contemplated under this
Agreement, and (iii) restrict access to Confidential Information to the Receiving Party's employees (including contractors, accountants and counsel and similar representatives) who have a need to know such information in connection with the
performance of the Receiving Party's obligations and covenants under this Agreement and shall be responsible to ensure that such employees maintain the terms of confidentiality and nonuse as required in this Agreement.
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(b) In the event that either Party desires to use a third party service provider ("Service Provider"), including, for example, an engineering design firm or
a contract manufacturer, to develop or produce the Product using Technology or Technology Improvements, all Parties to this Agreement must first enter into at least an acceptable non-disclosure and technology ownership agreement with the Service
Provider. Neither Party to this Agreement may disclose any Confidential Information to a Service Provider unless (i) both Parties to this Agreement have individually entered into a non-disclosure agreement with the Service Provider and (ii) the
Service Provider has a presence in the United States and is able to be served legal documents in the United States or agrees, in writing, that it can be served and that United States Courts have personal jurisdiction over the Service Provider.
2. Notwithstanding anything to the contrary herein, Confidential Information shall not include any information that: (a) is presently in the Receiving
Party's possession, provided that such information has not been obtained from the Disclosing Party and that such possession can be demonstrated by the Receiving Party's written records; (b) is, or becomes, generally available to the public
through no act or omission of the Receiving Party; (c) is received by the Receiving Party in written form from a third party having no binding obligation to keep such information confidential; or (d) is required to be disclosed by law, upon the
advice of legal counsel.
3. Specific Confidential Information shall not be deemed to be available to the public or in the possession of the Receiving Party merely because it is
embraced by more general information so available or in said Receiving Party's possession, nor shall a combination or aggregation of features which form confidential information be deemed to be non-confidential merely because the individual
features, without being combined or aggregated, are non-confidential.
4. Each of the Parties hereby agrees that all written or other tangible forms of Confidential Information (including any materials generated by the
Receiving Party related to any Confidential Information) shall be and remain the property of its owner and shall be promptly returned to the owner upon the written request of the owner.
5. Neither the Agreement nor the disclosure of any information by the Disclosing Party shall be deemed to constitute by implication or otherwise, a vesting
of any title or interest or a grant of any license, immunity or other right to the Receiving Party with regard to the Confidential Information. Additionally, except as expressly provided in this Agreement, the execution of the Agreement shall not
operate, directly or indirectly, to grant to either Party any rights under any patent, trade secret or know-how now or hereafter owned by or licensed to the other Party.
6. Each Party warrants that it is the rightful owner of the Confidential Information to be disclosed under this Agreement and that it has the lawful right
to make such disclosure.
7. In the event that the Receiving Party or any of its representatives are requested or required to disclose Confidential Information pursuant to a subpoena
or an order of a court or government agency, the Receiving Party shall (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding the governmental request or requirements; (b) consult with the Disclosing Party
on the advisability of taking steps to resist or narrow the request; (c) if disclosure of Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised by counsel is legally
required to be disclosed; and (d) cooperate with the Disclosing Party in its efforts to obtain an order or other reliable assurance that confidential treatment be accorded to that portion of the Confidential Information that is required to be
disclosed.
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Because money damages may not be a sufficient remedy for any breach of this Section of the Agreement by the Receiving Party, the Disclosing Party shall be
entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach of this Section. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Section of the Agreement by the
Receiving Party, but shall be in addition to all other remedies available at law or equity to the Disclosing Party. In the event of litigation relating to the Agreement, if a court of competent jurisdiction determines that the Receiving Party has
breached this Section of the Agreement, then the Receiving Party shall be liable and pay to the Disclosing Party the reasonable attorneys' fees, court costs and other reasonable expenses of litigation, including any appeal therefrom. The
Receiving Party further agrees to waive any requirement for the posting of a bond in connection with any such equitable relief.
No Liability to Third Parties. The debts, obligations and
liabilities of either Joint Venturer, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of such Joint Venturer, and no other Party shall be obligated for any such debt, obligation or liability
of such Joint Venturer solely by reason of being a party to this Agreement or an equity holder of a JV Company.
Deadlock. In the event the Joint Venturers are divided on a
material issue and cannot agree on the conduct of the business and affairs of the Joint Venture, then a deadlock between the Joint Venturers shall be deemed to have occurred. Upon the occurrence of a deadlock, one Joint Venturer (hereinafter
referred to as the "Offeror") may elect to purchase the Joint Venture interest of the other Joint Venturer (hereinafter referred to as the "Offeree") at a price calculated as the Offeree's percentage interest in a total purchase price for all of
the assets of the Joint Venture. The Offeror shall notify the Offeree in writing of the offer to purchase, stating the total purchase price for all of the assets of the Joint Venture, and the price offered for the Offeree's Joint Venture interest
expressed as the Offeree's percentage interest in the Joint Venture assets multiplied by the total purchase price for all of the assets of the Joint Venture. The Offeree shall have the right to buy the interest of the Offeror at the designated
price and terms, or to sell the Offeree's interest to the Offeror at the designated price and terms, whichever the Offeree may elect. The offer, when made by the Offeror, is irrevocable for thirty (30) days. The Offeree shall have ten (10) days
from the receipt of such offer to make its election, that is, either to buy such interest of the Offeror or to sell its own interest, which shall be made in writing executed by the Offeree and stating the nature of the election. A Joint Venturer
which is obligated to purchase the interest of another Joint Venturer pursuant to the provisions hereof shall have twenty (20) days from the date of receipt of the written election from such other Joint Venturer to pay the designated price and
satisfy the terms of such purchase. Should the Joint Venturer who has received an offer to sell or buy fail to make the election required herein in a timely fashion, then such non-responding party shall be deemed to have elected and agreed to
sell or buy, as the case may be, according to the terms of the offer.
Legal Title to the Joint Venture. The Joint Venturers agree that
the legal title to the Joint Venture property and assets, including the Joint Venture itself, shall remain in the name of the Joint Venture. Transfers Of Joint Venturers' Interests. Except as otherwise expressly permitted herein, no Joint
Venturer may sell, transfer, assign or encumber its interest in the Joint Venture, or admit additional Joint Venturers, without the prior written consent of the other Joint Venturer.
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Any attempt to transfer or encumber any interest in the Joint Venture in violation of this Section shall be null and void.
The obligations and Rights of Transferees are as follows:
(a) Any person who acquires in any manner whatsoever any interest in the
Joint Venture, irrespective of whether such person has accepted and adopted in writing the terms and provisions of this Agreement, shall be deemed by the acceptance of the benefit of the acquisition thereof to have agreed to be subject to and
bound by all the obligations of this Agreement that any predecessor in interest of such a person was subject to or bound by;
(b) The person acquiring an interest in the Joint Venture shall have only
such rights, and shall be subject to all of the obligations, as are set forth in this Agreement; and, without limiting the generality of the foregoing, such a person shall not have any right to have the value of its interest ascertained or
receive the value of such interest or, in lieu thereof, profits attributable to any right in the Joint Venture, except as herein set forth.
Termination. Upon the termination or dissolution of the Joint
Venture, the Joint Venturers shall proceed to liquidate the Joint Venture, and all proceeds of such liquidation shall be applied and distributed in the manner set above according to the interests held by each party in the Joint Venture. A
reasonable time shall be allowed for the orderly liquidation of the Joint Venture's assets in order to minimize losses normally attendant upon such liquidation.
Notice. Any notices to be given under this Agreement by either
party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices must be addressed to the addresses of the parties as they appear in the
introductory paragraph of this Agreement. Each party may change its address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of 14 calendar days after mailing.
Dispute Resolution. The Joint Venturers will attempt to resolve any
dispute arising out of or relating to this Agreement through friendly negotiations amongst the Joint Venturers. If the matter is not resolved by negotiation, the Joint Venturers will resolve the dispute using the below Alternative Dispute
Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of
mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be
final, and judgment may be entered upon it by any court having proper jurisdiction.
Miscellaneous Partition. The Joint Venturers hereby mutually waive
any right of partition which they may have with respect to the Joint Venture and any noncash assets of the Joint Venture.
Fees and Commissions. Each Joint Venturer hereby represents and
warrants to the other that it has not incurred or obligated the Joint Venture for any brokerage, finder's or other similar fees or commissions in connection with the transactions covered by this Agreement or in connection with acquiring the Joint
Venture or forming this Joint Venture. Each Joint Venturer hereby agrees to indemnify and hold harmless the other from and against all liabilities, costs, damages and expenses from any breach or alleged breach of the foregoing representation.
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Waiver. Failure on the part of either Joint Venturer to complain of
any act of the other Joint Venturer or to declare the other Joint Venturer in default, irrespective of how long such failure continues, shall not constitute a waiver by such Joint Venturer of its rights hereunder. No waiver of, or consent to, any
breach or default shall be deemed or construed to be a waiver of, or consent to, any future breach or default.
Severability. If any provision of this Agreement or the application
thereof shall be determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement and the application of the other provisions herein contained shall not be affected thereby, and all such other
provisions shall remain effective and in force and shall be enforced to the fullest extent permitted by law.
Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the Joint Venturers, and their heirs, successors and assigns.
Duplicate Originals. This Agreement may be executed in duplicate,
with each such duplicate to be considered an original for all purposes.
Construction of Agreement. (a) The captions contained in this
Agreement are inserted only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision thereof. (b) As used herein, the word "person" shall include the individuals,
corporations, partnerships and other entities of any type. In this Agreement, the use of any gender shall be applicable to all genders, and the singular shall include the plural, and the plural shall include the singular.
Other Activities of Joint Venturers. Any Joint Venturer may engage
in other business ventures of every nature and neither the Joint Venture nor the other Joint Venturer shall have any right in such independent ventures or the income and profits derived therefrom.
Entire Agreement. This Agreement is intended by the Joint Venturers
to be the final expression of their agreement and the complete and exclusive statement of the terms thereof, notwithstanding any representations or statements to the contrary heretofore made.
Amendments. This Agreement may be amended by the Parties hereto at
any time prior; provided, however, that any amendment must be by an instrument or instruments in writing signed and delivered on behalf of each of the Parties hereto.
Governing Law; Consent to Personal Jurisdiction. This Agreement
will be governed by the laws of the State of California without regard for conflicts of laws principles. Each Joint Venturer hereby expressly consents to the personal jurisdiction of the state and federal courts located in the State of California
for any lawsuit filed there against any party to this Agreement by any other party to this Agreement concerning the Joint Venture or any matter arising from or relating to this Agreement.
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In witness whereof, the Joint Venturers have signed and sealed this Agreement.
Executed by the Joint Venturers named above with the intent of being legally bound.
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Quanta
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Xxxx Xxxx, CEO
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Date
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2664431 Ontario Inc.
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Xxxxx Xxxxxx
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Date
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