EXHIBIT 10.3
DATED THE 16TH DAY OF NOVEMBER 2000
ASIA PACIFIC TELECOM GROUP CO. LTD
AND
SPEECHLINK COMMUNICATIONS CORPORATION
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JOINT VENTURE AGREEMENT
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THIS AGREEMENT is made the 9th day of November 2000
BETWEEN
(1) ASIA PACIFIC TELECOM GROUP CO. LTD., a company organized and existing under
the laws of British Virgin Island, with its office at Hong Xiang Building
of the M.P.T. Long Xiang Road, Haidian District, Beijing, China (hereafter
referred to as APT)
(2) SPEECHLINK COMMUNICATIONS CORPORATION, a company organized and existing
under the laws of Delaware, the United States, with its business office at
00 Xx. Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
(hereafter referred to as SLCC).
WHEREAS:
APT and SLCC are interested in cooperating to establish a joint venture company
(hereafter referred to as JVC) to provide the unified messaging and related
services in China. Both parties have agreed to enter into the JVC subject to the
terms and conditions hereafter mentioned.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein the parties agree as follows:
Article 1 Definitions
1.1 The terms defined in this Article shall have the meaning ascribed
to them herein whenever they are used in this Agreement, unless
otherwise clearly indicated by the context.
1.2 An "Affiliate" shall mean any corporation, association or other
entity.
Article 2 Purpose
2.1 The purpose of this Agreement is to provide for the
establishment, ownership, and operation by the parties of a joint
venture company (the JVC), which will be a BVI corporation
limited by shares. The JVC's main office shall be located in Hong
Kong.
2.2 The purpose of the JVC will be to engage in the following
business activities:
(a) To create unified communication services to subscribers
taking into account for commercial viability and competitive
environment.
(b) To explore opportunities to other service providers in
China.
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(c) Any other activities related or incidental to the foregoing
activities as approved by the Board of Directors of the JVC.
Article 3 The terms and conditions for establishment of the JVC below:
3.1 APT will purchase USD 2.3 millions of SLCC's technology before 31
December, 2002, with initial order of approximately USD 300,000
(that is, the exact amount to be determined by actual equipment
specifications stipulated in the Purchase Contract) at the
commencement of this Agreement.
3.2 APT will provide necessary network, infrastructure, operational
support for THREE designated cities for a pilot project for the
unified messaging service.
3.3 APT will allow the JVC to have access to the customer base and
then to create a 200,000 subscriber base for the unified message
messaging service before 31 December, 2002.
3.4 SLCC will provide APT 15% of total shares at the commencement of
this Agreement.
3.5 SLCC will provide APT 20% of total shares in terms of the
warrants at USD 0.01 per share. APT will purchase these warrants
on or before 31 December, 2002 on the pro rata basis. That is,
the exact amount will be proportional to the technology purchase
of USD 2,000,000.00.
3.6 SLCC will guarantee that no new shares or warrants will be
released without the written consent of APT before 31 December
2002.
3.7 SLCC will make its best efforts to apply to Canadian Government
for export credit to assist the sale of equipment to APT.
Article 3A Condition Precedent
3A.1 It is condition precedent ("Condition Precedent") of this
Agreement that APT shall procure an agreement ("Future
Agreement") to be executed between Beijing Asia-Pacific
Communications Technology Development Corp. ("PRC Company") and
the Joint Ventue company in the form annexed hereto as Appendix
on or before the 31st of December 2000 ("Fulfillment Date"). In
the event that the Condition Precedent is not satisfied on or
before the Fulfillment Date, this Agreement and everything herein
contained shall, subject to the liability of either party to the
other in respect of any breaches of the terms hereof antecedent
thereto, be null and void and of no effect.
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3A.2 SLCC may waive the Condition Precedent set out in clause 3A.1 at
any time by notice in writing to APT whether with or without
conditions.
Article 4 The Joint Venture Company
4.1 As soon as practically possible after the approval of the
relevant Board of Directors, the parties shall procure the
incorporation of a private company limited by shares under the
laws of BVI.
4.2 The JVC shall on incorporation, have an authorized capital to be
determined and agreed by the parties subject to a business and
financial plan to be finalized after the initial pilot test on
1st March, 2001.
4.3 The JVC's Memorandum and Articles of Association shall be as
agreed to by and between the parties subject however to the
provisions hereof and with such modifications as the parties may
from time to time agree in writing.
Article 5 Capital Subscription
5.1 The initial number of common shares to be subscribed for by the
parties under this Agreement shall be as follows:
(a) APT shall initially subscribe for 80% of total authorized
shares of JVC.
(b) SLCC shall subscribe for 20% of total authorized shares of
JVC.
(c) SLCC shall have a right to purchase from APT an additional
29% of total authorized shares of JVC before Dec. 31, 2002.
The share price will be determined after the financial plan
and capitalization are established and approved by the Board
of Directors on 1 March, 2001.
(d) No new shares can be issued without the consent of both
parties.
Article 6 Finance
6.1 Neither of the shareholders of JVC shall be obliged to make any
loans or to subscribe for any shares capital of the JVC other
than as provided in this Agreement.
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6.2 Neither of the shareholders of JVC shall be obligated to give any
guarantee, indemnity or security in respect of any liabilities or
obligations of the JVC.
Article 7 The Board
7.1 The number of Directors shall be seven (7). SLCC shall have the
right to appoint and remove up to two (2) Directors and APT shall
have the right to appoint and remove up to five (5) Directors.
7.2 The quorum for meetings of the Board shall be three (3). A quorum
must be present at the beginning of and throughout each meeting.
Article 8 Operations of the JVC
8.1 The number, types and qualifications of employees retained or
dismissed by the JVC shall be consistent with the JVC's scope of
operations and its annual budget. The wages of employee welfare
policies and other conditions of employment of personnel of the
JVC shall generally conform to prevailing in the area in
accordance with the terms and conditions mutually agreed upon.
8.2 Any facilities, financing, supply of goods, services or provision
of assistance, technical information, intellectual property
rights and otherwise made available to the JVC by APT or SLCC
shall be provided on an arm's length basis and on commercially
reasonable terms and prices.
Article 9 Further Obligations of the Parties
9.1 APT agrees to:
(a) Finance the operating cost and hardware of the JVC in
Mainland China during the period from the commencement of
this Agreement to 31 December 2001; the amount paid by APT
shall be repaid by JVC to APT.
(b) Use its existing offices as the distribution/service outlets
of the JVC's business.
(c) Provide network infrastructure.
(d) Operational & management expertise.
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9.2 SLCC agrees to:
(a) Provide the necessary software already developed by SLCC for
the JVC.
(b) Provide the advance technical know-how for the JVC.
(c) Bring in strategic overseas partners.
(d) The salary and travel expenses incurred by SLCC for the JVC
from the commencement of this agreement to December 31, 2001
shall be repaid by the JVC.
Article 10 Confidentiality
10.1 Without prejudice to any Nondisclosure Agreement which has been
or may be entered into among the parties or any of them, all
oral, written and other information (including but not limited to
technical and financial information, business plans, computer
program and documentation, specifications, drawing and models)
which is made available by any party or its agent to another
party in connection with this Agreement either before or after
the date of this Agreement is and shall remain confidential to
and the property of the disclosing party. Provided however that
information that is publicly known or becomes known from a third
party not in violation of any confidentiality agreement shall not
be deemed to confidential violation of any confidentiality
agreement shall not be deemed to be confidential information. The
obligations contained in this Article 10 shall remain operative
within 12 months after the termination of this Agreement.
Article 11 Entire Agreement
11.1 This Agreement is the complete and exclusive statement of the
agreement between APT and SLCC relating to the subject matter of
this Agreement and supercedes all previous communications,
representations and other arrangements, written or oral.
11.2 Except as otherwise permitted by this Agreement, no change to its
terms will be effective unless it is in writing and signed by
persons authorized on behalf of both parties.
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Article 12 Governing Law
This Agreement will be construed in accordance with and governed
by the laws of Hong Kong SAR and each party hereby submits to the
non-exclusive jurisdiction of the courts of Hong Kong as regards
any claims or matter arising under this Agreement.
Article 13 Publicity
13.1 No party shall make any announcement of other communication
relating to the JVC or the subject matter of this Agreement
without the prior written consent of each other parties, except
that no such consent shall be required to make by law or and any
stock exchange (provided that before making any such announcement
such party shall, if practicable, first consult with each other
party whose consent otherwise would have been required) or makes
to its professional advisors.
Article 14 Entire Agreement
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof, supercedes all
previous agreements and undertakings between the parties with
respect thereto, and may not be modified except by an instrument
in writing signed by the duly authorized representatives of the
parties.
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IN WITNESS whereof, the parties hereto have caused this Agreement to be executed
by a representative hence duly authorized as of the date first hereinafter set
forth.
SIGNED BY:
For and behalf of
ASIA PACIFIC TELECOM GROUP CO. LTD.
in the presence of Xx. XXXX XXXX XX
Title: Chairman & CEO
Witness by: Xx. Xxx Xxx Xxxx
SIGNED BY:
For and behalf of
SPEECHLINK COMMUNICATIONS CORP.
In presence of: Mr. Xxxxxxx Xxxx
Title: President & CEO
Witness by: Mr. Xxxxxxx Xxxx Xxx Xxxx
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