EXHIBIT 10.22
EQUITY INVESTMENT AND PARTNERSHIP AGREEMENT
THIS EQUITY INVESTMENT AND PARTNERSHIP AGREEMENT (this "Agreement") is made
as of this 31st day of March, 2000 (the "Effective Date") by and between
xxXxxxxx.xxx, a Nevada corporation having its principal place of business at,
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, XX 00000 XXX (hereinafter
referred to as "xxXxxxxx.xxx") and eNews Corporation, a corporation duly
incorporated under the laws of Japan and having its principal place of business
at 21st Floor 1-8-1 Otemachi Chiyeda-Ko Tokyo (hereinafter referred to as
"eNews").
RECITALS
WHEREAS, xxXxxxxx.xxx is a technology-based, global Internet multimedia
email solution company that has developed proprietary patent pending multimedia
technology that permits global distribution of extremely high quality rich media
email solutions;
WHEREAS, eNews is a newly-formed corporation primarily engaged in the
business of providing rich media email marketing and financial information;
WHEREAS, each party agrees that their mutual goal is to work to establish a
profitable business venture, such that both parties realize monetary and other
benefits therefrom; and
WHEREAS, the parties, therefore, agree to the following terms, which
support their mutual goals and agreements.
NOW, THEREFORE, IN VIEW OF THE MUTUAL COVENANTS AND CONDITIONS CONTAINED
HEREIN, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Equity Investment of xxXxxxxx.xxx in eNews.
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1.1 Concurrent with the execution of this Agreement the Parties shall
enter into an exclusive three-year software license agreement pursuant to the
License Agreement, attached hereto as Exhibit A and incorporated herein by this
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reference (the "License Agreement"). The License Agreement provides for, among
other things, the exclusive license to eNews of development and marketing rights
to that certain Japanese version of the inChorus Pro software technology in
Japan.
1.2 xxXxxxxx.xxx shall invest 15,000,000 Japanese Yen in eNews. The funds
will be wired upon the closing of the transactions contemplated by this
Agreement, including but not limited to the execution of the License Agreement,
attached hereto as Exhibit A, (the "Closing").
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1.3 At the Closing, xxXxxxxx.xxx shall receive a voting equity interest
in eNews equal to twenty five percent (25%) of the total outstanding voting
equity of eNews based on the post-first round valuation and capitalization
contemplated by the parties hereto and that certain schedule of proposed
investors attached hereto as Exhibit B and incorporated herein by this reference
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(such equity investment shall be referred to herein as the "Shares").
Notwithstanding the preceding sentence, xxXxxxxx.xxx acknowledge and agree that
eNews intends to go public in the foreseeable future and, for this purpose, that
eNews may, subject to the approval of the shareholders and/or directors in
accordance with the provisions of the Company Code of Japan, seek outside
investors for additional capital injections, the result of which may affect
proportional shareholding of xxXxxxxx.xxx,
1.4 Effective at the Closing, xxXxxxxx.xxx shall be granted two (2) seats
on eNews' Board of Directors, and shall retain such Board seats for the duration
of this Agreement. eNews shall not increase the number of Board seats above 8
without the prior approval of xxXxxxxx.xxx. eNews represents and warrants to
xxXxxxxx.xxx that its Board of Directors will compose with up to total of eight
(8) members. Any increase in number of Board Director shall be consented and
agreed by the Board.
2. Closing.
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2.1 Time and Place. The closing for the sale of the Shares (the "Closing")
from eNews to XxXxxxxx.xxx shall take place concurrently with the execution of
this Agreement by all parties, or at such other place and time as the parties
hereto may agree.
2.2 Procedures at Closing. The following shall take place on or before
fifteen (15) days from the Closing:
(a) eNews shall deliver to xxXxxxxx.xxx the certificate(s)
representing the Shares of eNews being sold hereunder.
(b) eNews shall deliver to xxXxxxxx.xxx complete, correct and
applicable copies of (i) the articles of incorporation, bylaws and other charter
or organizational documents of eNews, including all amendments thereto, and (ii)
the stock records of the meetings and other proceedings of the shareholders (or
other equity owners) and directors of eNews.
(c) eNews shall deliver to xxXxxxxx.xxx, on a quarterly basis with
original format, any and all financial information about eNews relevant to the
investment contemplated herein, including, but not limited to, revenue and other
financial projections for the first three years following the Effective Date of
this Agreement.
(20%), eNews shall furnish semi-annual financial statements to xxXxxxxx.xxx
within thirty (30) days after the end of each such six-month period.
(d) eNews will disclose to xxXxxxxx.xxx (i) all accounts maintained
by eNews at any bank, savings and loan association or other financial
institution, (ii) the name and location of the institution at which such account
is maintained, (iii) the name in which such account is maintained, (iv) the
account number of such account, (v) the current balance in such account, and
(vi) the names of all persons authorized to draw on or make withdrawals from
such account.
(e) xxXxxxxx.xxx shall pay to eNews the cash consideration for the
Shares by check or wire transfer, as set forth above.
3. Representations of eNews. eNews hereby represents and warrants to
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xxXxxxxx.xxx as follows.
3.1 eNews (i) is a duly organized, validly existing "kk" corporation and
in good standing under the laws of Japan, and (ii) has all necessary power and
authority to own its assets and to conduct its business as it is currently being
conducted.
3.2 eNews is not in violation or breach of (i) any of the provisions of
its Articles of Incorporation, bylaws or other charter or organizational
documents, or (ii) any resolution adopted by its shareholders or directors.
3.3 The authorized capital stock of eNews consists of 800 (eight hundred)
shares of common stock of a single class, of which 800 (eight hundred) shares
are issued and outstanding. There are no (i) outstanding options, warrants or
rights to acquire any shares of the capital stock or other securities of eNews,
or (ii) outstanding securities or obligations which are convertible into or
exchangeable for any shares of the capital stock or other securities of eNews.
The Board of Directors will decide on granting stock options to Board directors
and employees of eNews up to ten percent (10%) of the total outstanding stocks.
3.4 The financial information provided in Section 2.2(c) above is
accurate, contains no material omission or misrepresentation and presents fairly
the financial position of eNews as of the respective dates thereof and the
consolidated results of operations and changes in financial position of eNews
for the respective periods covered thereby.
3.5 There is no action, suit, proceeding, dispute, litigation, claim,
complaint or investigation by or before any court, tribunal, governmental body,
governmental agency or arbitrator pending or, threatened against or with respect
to eNews, which (i) if adversely determined would have an adverse effect on the
business, condition, assets, operations or prospects of eNews or (ii) challenges
any of the actions required to be taken by eNews under this Agreement. To the
knowledge of eNews, there exists no basis for any such action, suit, proceeding,
dispute, litigation, claim, complaint or investigation.
3.6 The execution and delivery of this Agreement and the performance of
its obligations hereunder, has been duly authorized by all necessary corporate
actions of eNews. This Agreement constitutes a legal, valid and binding
obligation of eNews enforceable in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors, as well as general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4. Representation and Warranties of xxXxxxxx.xxx. xxXxxxxx.xxx represents and
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warrants to eNews as follows:
4.1 The Shares purchased by xxXxxxxx.xxx hereunder are acquired for its
own account, not as nominee or agent, and not with a view to the sale or
distribution of any part thereof, and as such, xxXxxxxx.xxx has no present
intention of selling, granting participation in or otherwise distributing the
same.
4.2 xxXxxxxx.xxx understands that the Shares will not be registered under
the securities laws of Japan or any other jurisdiction.
4.3 xxXxxxxx.xxx acknowledges that it is able to fend for itself in the
transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment pursuant to this Agreement.
4.4 The execution and delivery of this Agreement and the performance of
its obligations hereunder have been duly authorized by all necessary corporate
actions of inChorus. This Agreement constitutes a legal, valid and binding
obligation of inChorus enforceable in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors, as well as general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5. Survival of Representations and Warranties. The representations and
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warranties of eNews set forth in this Agreement and the representations and
warranties of such party set forth in the instruments and other documents
delivered pursuant hereto or in connection herewith prior to or at the Closing
(i) shall survive, and shall not be affected by, the Closing and (ii) shall not
be affected by any information furnished to, or any investigation made by, any
other party hereto or any of such other party's employees, attorneys,
accountants or other representatives.
6. Indemnification. The parties shall indemnify and hold each other, and their
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respective agents, affiliates, employees, shareholders, directors, and officers
harmless from and against any loss that is directly or indirectly suffered or
incurred at any time by the indemnified party and that arises directly or
indirectly out of or by virtue of, or is directly or indirectly connected with,
(i) any breach of this Agreement by the indemnifying party; (ii)
any inaccuracy or misrepresentation of any of the representations and warranties
of the indemnifying party; or (iii) the failure of such indemnifying party to
perform any of its covenants or obligations contained in this Agreement. The
party hereto seeking indemnification shall promptly notify the other party in
writing of any notice or claim of such breach of this Agreement and shall permit
the indemnifying party to control, in a manner not adverse to the other party,
the defense, settlement, adjustment or compromise of any such claim using
counsel reasonably acceptable to the party seeking indemnification. The party
seeking indemnification may employ counsel, at its own expense (provided that if
such counsel is necessary because of a conflict of interest of either the other
party or its counsel or because the other party does not assume control, then
the other party shall bear such expense), to assist it with respect to any such
claim. The party seeking indemnification shall not enter into any settlement
that affects the other party's rights or interest without that other party's
prior written approval. The party seeking indemnification shall have no
authority to settle any claim on behalf of the other party.
7. Term and Termination.
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7.1 Term. This Agreement shall remain in effect for three years from
the Effective Date unless it is terminated earlier under the terms herein.
7.2 This Agreement may be renewed ninety (90) days prior to each
expiration date of the Agreement. All the terms and conditions will be
negotiated during the renewal period. Should any other companies propose to
xxXxxxxx.xxx a similar business partnership similar to the nature of this
Agreement, xxXxxxxx.xxx will consent with eNews first and eNews will have ten
(10) working days based on Japanese calendar to make a better offer to
xxXxxxxx.xxx.
7.3 Termination for Cause. Either party may terminate this Agreement as
follows:
(a) Bankruptcy. Either party may immediately terminate this Agreement
upon written notice to the other party in the event that proceedings in
bankruptcy or insolvency are instituted by or against the other party, or a
receiver is appointed, or if any substantial part of the assets of the other
party is the object of attachment, sequestration or other type of comparable
proceeding, and such proceeding is not vacated or terminated within thirty (30)
days after its commencement or institution.
(b) Material Breach. A party may terminate this Agreement if the
other party commits a material breach of any of the terms or provisions of this
Agreement and does not cure such breach within thirty (30) days after receipt of
written notice given by the non-breaching party.
8. Miscellaneous.
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8.1 Assignment. A party shall not assign all or any portion of its
interest in this Agreement without the prior written consent of the other party.
8.2 Waiver. Failure or neglect by either party to enforce at any time any
of the provisions of this agreement shall not be construed or deemed to be a
waiver of that party's rights under this agreement.
8.3 Survival of Agreements and Representations and Warranties. All
agreements, representations and warranties contained herein or made in writing
in connection herewith, to the extent applicable, shall survive the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
8.4 No Exclusive Remedy. No remedy herein conferred upon a party to this
Agreement is intended to be exclusive of any other remedy, and each such remedy
shall be cumulative and in addition to every other remedy given hereunder or now
or hereafter existing at law, or in equity or by statute or otherwise.
8.5 Notices. All notices, requests, demands and other communications
hereunder shall be in writing, addressed to a party at such party's address as
set forth in the introductory paragraph of this Agreement, and shall be deemed
to have been given (i) when hand delivered, including delivery by messenger or
courier service (or if delivery is refused, at the time of refusal), to the
address set forth below, (ii) when received or refused as evidenced by the
postal receipt if sent by United States mail as Certified Mail, Return Receipt
Requested, with proper postage prepaid, addressed as set forth below or (iii)
when received as evidenced by the transmission report of the telecopy machine of
the transmitting party acknowledging a good transmission if sent by telecopy to
the number of the party to which notice is given.
8.6 Governing Law; Arbitration. This Agreement and any agreement resulting
there from shall be governed by and construed under the laws of the State of
California applicable to contracts fully performed in California, without regard
to California conflicts. In the event a dispute of any kind or nature arises
under this Agreement, any documents executed in connection with this Agreement,
or any matters related to this Agreement, the parties shall, within ninety (90)
days of the receipt by the other party of a demand for arbitration, select a
mutually agreeable arbitrator and submit the dispute to such arbitrator for
binding arbitration, through the American Arbitration Association Office in
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Santa Xxxxx County, under the Commercial Arbitration Rules of the American
Arbitration Association. If the parties are unable to agree upon an arbitrator,
the arbitrator shall be appointed in accordance with the rules and procedures of
the American Arbitration Association. The fees for the arbitration proceedings
shall be forwarded by the party demanding arbitration. However, the arbitration
fee shall be paid or reimbursed by the non-prevailing party, as determined by
the arbitrator, who shall also award appropriate attorneys' fees and costs to
the prevailing party.
8.7 Entire Agreement. This Agreement and the License Agreement constitute
the entire understanding and agreement of and between the parties with respect
to the subject matter hereof and supersedes all prior representations and
agreements, verbal or written. It shall not be varied, except by an instrument
in writing subsequent hereto, duly executed by an authorized representative of
each party. Paragraph headings hereinafter are for convenience only and shall
not limit in any way the scope or interpretation of any provision to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers effective the day and year
first written above.
eNews Corporation xxXxxxxx.xxx, Inc.
By: /s/ X. XXXXXXXX By: /s/ XXXXXXX XXXX
--------------------- ---------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxx
Title: President and CEO Title: President and CEO
Date: March 31, 2000 Date: March 31, 2000
EXHIBIT A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into as of March 31, 2000, (the
"Effective Date"), by and between xxXxxxxx.xxx, Inc., a Nevada corporation,
having principal offices at 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
XX 00000 XXX (hereinafter referred to as "xxXxxxxx.xxx") and eNews Corporation,
a corporation duly incorporated under the laws of Japan and having its principal
place of business at ______________________ ("Licensee").
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. SOFTWARE.
1.1 Software. Subject to the terms and conditions of this Agreement and
pursuant to the license in Section 2.2 below, Licensor agrees to license to
Licensee certain software products (the "Software") which consists of the
Japanese version of the inChorus Pro software capable of creating rich
multimedia email attachments. Software includes copies of software provided on
disks or other media or provided electronically, and any enhancements,
modifications, updates, bug fixes or releases related thereto. Two (2) master
copies of the Software shall be delivered to Licensee within forty-five (45)
days of the effective date of that certain Equity Investment and Partnership
Agreement by and between the parties hereto.
1.2 Software Upgrades. All Software upgrades, enhancements and bug fixes
for the Software shall be made available to Licensee no later than the date
Licensor releases such upgrades, enhancements and bug fixes to any of its other
licensees, customers, developers or integrators and at no additional charge
unless otherwise expressly provided in this Agreement.
1.3 Software Support. Licensee shall provide technical, marketing and
development support upon written request from Licensee and for a fee to be
mutually agreed upon in writing by the parties.
1.4 Software Development. Any software development services that Licensor
agrees to perform for Licensee shall be quoted and invoiced on a job-by-job
basis.
2. OWNERSHIP; GRANT OF RIGHTS
2.1 Ownership. As between the parties, Licensor shall retain any and all
title to and ownership of, and all proprietary rights with respect to, the
Software, including any and all modifications, enhancements or derivative works
created from the Software by
Licensee. Licensee is expressly prohibited under this Agreement from reverse
engineering the Software.
2.2 Software License. Licensor hereby grants Licensee an exclusive, non-
transferable, revocable, royalty bearing license to the Software, limited to the
geographic territory of the country of Japan, to the Software to :
(a) use, reproduce and have reproduced, source code, object code or other
copies of the Software from master or other copies of the Software provided by
Licensor only for those purposes defined within the scope of the license granted
herein;
(b) sell, distribute, license, sub-license, lease, or offer to distribute,
license or lease the Software to be incorporated and bundled into products or as
incorporated into or in connection with or for use with any Licensee product or
Licensee's joint partners' products by any means now known or developed in the
future, through multiple tiers of distribution, including without limitation
resellers, distributors, integrators, VARS and OEMs or directly to end users;
(c) provide customer support (including, without limitation, to fix
Software bugs) to any reseller, distributor, integrator, VAR, OEM, end user or
other third party as necessary;
(d) create messages, distribute e-mails and track e-mail results using the
Software; and
(d) sublicense and authorize the granting of sublicenses of all of the
license rights granted to Licensee in this Section 2.2 to any third parties,
provided that any such sublicensees agree in writing to be bound by the terms
hereof.
2.3 Licensor shall not grant any similar rights or licenses as described
in this Section 2 to any other Japanese corporation without the express prior
written consent of Licensee.
3. FEES; ROYALTIES; PAYMENT; AUDIT RIGHTS
3.1 Payment Terms. Based on the terms and conditions defined in the
Exhibit B attached with this Agreement.
3.2 Royalties. Licensee shall pay Licensor a royalty equivalent to ten
percent (10%) of Licensee's total gross revenues from any and all use, sale,
distribution, advertising, creation, distribution or tracking services or any
other activity described above in Section 2 of this Agreement. Royalties shall
be calculated from the first anniversary date plus forty-five (45) days and
shall be due and payable in total at the end of each calendar quarter
thereafter.
3.3 Reports and Audits. Licensee shall provide a report with each
quarterly payment described above in Section 3.2, which shall include all
information required to calculate the quarterly royalty due to Licensor.
Licensor or its duly authorized representatives shall have the right, upon at
least thirty (30) days' written notice to Licensee, to inspect the books,
records, and all other documents and material in the possession of or under the
control of Licensee with respect to the subject matter of this Agreement at the
place or places where such records are normally retained. Licensor shall have
free and full access thereto for such purposes, and shall be permitted to be
able to make copies thereof and extracts therefrom. Licensee shall maintain and
keep accessible and available for inspection all books and records relative to
the subject matter of this Agreement for at least three (3) years after
termination of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 The parties hereto warrant and represent to each other that they have
the full power to enter into this Agreement and to carry out its obligations
hereunder.
4.2 NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
5. INDEMNIFICATION. The parties agree to indemnify, defend and hold each other
harmless, along with their officers, directors, employees, shareholders,
customers, agents, successors and assigns from and against any and all loss,
damage, settlement or expense (including legal expenses), as incurred, resulting
from or arising out of any claims which allege that one party hereto has
breached its obligations under this Agreement. The party hereto seeking
indemnification shall promptly notify the other party in writing of any notice
or claim of such breach of this Agreement and shall permit the indemnifying
party to control, in a manner not adverse to the other party, the defense,
settlement, adjustment or compromise of any such claim using counsel reasonably
acceptable to the party seeking indemnification. The party seeking
indemnification may employ counsel, at its own expense (provided that if such
counsel is necessary because of a conflict of interest of either the other party
or its counsel or because the other party does not assume control, then the
other party shall bear such expense), to assist it with respect to any such
claim. The party seeking indemnification shall not enter into any settlement
that affects the other party's rights or interest without that other party's
prior written approval. The party
seeking indemnification shall have no authority to settle any claim on behalf of
the other party.
6. CONFIDENTIALITY
6.1 Each party agrees that all source and object code, trade secrets,
software, inventions, algorithms, know-how and ideas and all other business,
technical and financial information it obtains from the other are the
confidential property of the disclosing party ("Proprietary Information" of the
disclosing party). Except as expressly allowed herein, the receiving party will
hold in confidence and not use or disclose any Proprietary Information of the
disclosing party, shall take reasonable protective measures to insure same (and
at least the same measures it takes for its own Proprietary Information) and
shall similarly bind its employees in writing. The receiving party shall not be
obligated under this Section with respect to information the receiving party can
document:
(a) is or has become readily publicly available without restriction
through no fault of the receiving party or its employees or agents; or
(b) is received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose such
information; or
(c) was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the other party; or
(d) was independently developed by employees or consultants of the
receiving party; or
(e) is required to be disclosed by law.
6.2 If either party breaches any of its obligations with respect to
confidentiality, or if such a breach is likely to occur, the other party shall
be entitled to equitable relief, including specific performance or an
injunction, in addition to any other rights or remedies, including money
damages, provided by law.
6.3 The parties shall treat the terms and conditions and the existence of
this Agreement as Proprietary Information. Each party shall obtain the other's
consent prior to any publication, presentation, public announcement or press
release concerning the existence or terms and conditions of this Agreement.
7. LIMITATION OF LIABILITY. EXCEPT UNDER SECTION 5 OF THIS AGREEMENT, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT,
STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT.
8. TERM; TERMINATION. This Agreement and the rights and obligations hereunder
shall remain in effect for three (3) years from the Effective Date.
8.1 Termination for Cause. This Agreement may be terminated by any party
for cause immediately by written notice upon the occurrence of any of the
following events:
(a) If the other ceases to do business, or otherwise terminates its
business operations or if there is a material change in control of the other; or
(b) If the other breaches any provision of this Agreement and fails
to cure such breach within thirty (30) days of written notice describing the
breach; or
(c) If the other becomes insolvent or seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the other
(and not dismissed within ninety (90) days).
(d) XxXxxxxx.xxx will deposit a Japanese version of the Software in a
mutually agreed escrow account. Should xxXxxxxx.xxx file a bankruptcy, then the
Japanese version of the Software deposited in the escrow account shall be
released to eNews.
9. MISCELLANEOUS
9.1 Survival. Sections 4, 5, 6 & 7 shall survive termination or expiration
of this Agreement.
9.2 Notices. All notices shall be sufficient only if personally delivered,
delivered by telecopy, delivered by a major commercial rapid delivery courier
service or mailed by certified or registered mail, return receipt requested, to
either party at its address set forth above or such other address as such party
may provide by notice pursuant to this Section. If not received sooner, notice
by mail shall be deemed received five (5) days after deposit in the U.S. mails,
properly addressed, with first class postage prepaid. Notice by telecopy shall
be deemed received at the time sent or the next working day if such time is not
during a working day.
9.3 Governing Law; Arbitration. This Agreement and any action related
thereto shall be governed, controlled, interpreted and defined by and under the
laws of the State of California and the United States, without regard to the
conflicts of laws provisions thereof. In the event a dispute of any kind or
nature arises under this Agreement, any documents executed in connection with
this Agreement, or any matters related to this Agreement, the parties shall,
within ninety (90) days of the receipt by the other party of a demand for
arbitration, select a mutually agreeable arbitrator and submit the dispute to
such arbitrator for binding arbitration, through the American Arbitration
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Association Office in Santa Xxxxx County, under the Commercial Arbitration Rules
of the American Arbitration Association. If the parties are unable to agree upon
an arbitrator, the arbitrator shall be appointed in accordance with the rules
and procedures of the American Arbitration Association. The fees for the
arbitration proceedings shall be forwarded by the party demanding arbitration.
However, the arbitration fee shall be paid
or reimbursed by the non-prevailing party, as determined by the arbitrator, who
shall also award appropriate attorneys' fees and costs to the prevailing party.
9.4 Waivers and Amendments. No failure or delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial waiver thereof include any other right,
power or privilege. This Agreement may not be amended, changed, discharged or
terminated except by a written document signed by duly authorized officers of
the parties.
9.5 Severability. In the event that any provision of this Agreement shall
be unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall only apply to such
provision and shall not render this Agreement unenforceable or invalid as a
whole; and, in such event, such provision shall be modified or interpreted so as
to best accomplish the objective of such unenforceable or invalid provision
within the limits of applicable law or applicable court decision and the
manifest intent of the parties hereto.
9.6 Taxes. If any payment made by eNews to xxXxxxxx.xxx under this
Agreement is subject to the withholding tax imposed by the Japanese tax
authorities, eNews may deduct the applicable withholding tax from its payments
and pay the balance to xxXxxxxx.xxx. In such event, eNews shall promptly procure
a tax certificate from the Japanese tax authority and send it to xxXxxxxx.xxx so
that it may claim the tax audit to the U.S. tax authorities.
9.7 Relationship of the Parties. In fulfilling its obligations under this
Agreement, each party shall be acting as an independent contractor. This
Agreement does not make either party the employee, agent or legal representative
of the other.
9.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY
DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL
BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT
AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER
THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
9.9 Entire Agreement. This Agreement is the complete agreement between the
parties hereto concerning the subject matter of this Agreement, and replaces any
contemporaneous or prior written or oral communications between the parties.
There are no conditions, understandings, agreements, representations or
warranties, expressed or implied, which are not specified herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
persons duly authorized as of the date and year first above written.
LICENSOR: XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxx
__________________________________
Name: Xxxxxxx Xxxx
_______________________________
Title: CEO and President
______________________________
LICENSEE: ENEWS CORPORATION
By: /s/ X. Xxxxxxxx
__________________________________
Name: Xxxxxxx Xxxxxxxx
_______________________________
Title: President
______________________________
EXHIBIT B
ENews Financing
1. eNews will close its first round of financing by May 31, 2000, in the
amount of 40,000,000 Japanese yen (USD $400,000). Upon the close of this round,
eNews will pay the sum of USD $100,000 to inChorus.
2. eNews will close its second round of financing by June 30, 2000, in the
amount of 20,000,000 Japanese yen (USD $200,000). inChorus will invest the sum
of 15,000,000 Japanese yen (approximately USD $150,000) in this round, at a
price per share of 50,000 Japanese yen (approximately USD $500). Upon the close
of this round, eNews will pay the sum of USD $50,000 to inChorus.
3. eNews will close its third round of financing by July 31, 2000.
4. eNews will make payments to inChorus whenever it closes a round of
financing. Such payments will be equal to 25% of the financing so closed. These
payments will continue until that certain obligation of eNews to inChorus, in
the amount of $1,000,000, provided in the Agreement is paid in full.
5. In any event, eNews will pay the entire $1,000,000 balance to inChorus no
later than 120 days after the date of the Agreement.
