EXHIBIT 2.1
JOINT VENTURE ESTABLISHMENT AGREEMENT
THIS JOINT VENTURE ESTABLISHMENT AGREEMENT (the "AGREEMENT") is made as
of September 6, 2004, by and between XXX TOKYO CO., LTD., a corporation
organized and existing under the laws of Japan ("XXX"), and TESCO CO., LTD., a
corporation organized and existing under the laws of Japan ("TESCO"), jointly
the "JV Partners", relating to the establishment of a Joint Venture company (the
"JV COMPANY").
P R E L I M I N A R Y S T A T E M E N T S
A. The JV Partners desire to jointly establish a company, initially
with a paid in share capital of YEN 10,000,000, contributed in a ratio of 60%
from Xxx and 40% from Tesco, with shares to be allocated to the two companies at
their respective contribution ratios;
B. The JV Company will be established for the purpose of becoming the
exclusive wholesale distributor of the proprietary Lighting system designed and
manufactured by Tesco.;
C. The JV Partners desire to set forth in writing their agreements and
understandings with respect to establishment of the Joint Venture Company and to
matters ancillary thereto in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, covenants,
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do
covenant, agree, represent, warrant, and stipulate as follows:
A G R E E M E N T
1. ESTABLISHMENT
1.1. PAID IN CAPITAL. Subject to the terms and conditions set forth
herein, Xxx will contribute 60%, YEN 6,000,000, of the total initial paid in
capital of the JV Company, YEN 100,000,000. Tesco will contribute 40%, YEN
4,000,000. Capital shall be paid in to the designated company account by wire
transfer on the specified closing date as required by Japanese Commercial Code,
(the "CLOSING DATE").
1.2. ISSUANCE OF CERTIFICATES REPRESENTING THE COMPANY SHARES.
Certificates representing Company Shares will not be issued, in accordance with
normal practice in Japan. A share register will be maintained by the JV Company,
that shall be open to inspection to either JV Partners.
1.3. BOARD REPRESENTATION. The JV Partners acknowledge and agree that
upon the establishment of the JV Company, the CEO position will be held by an
appointed representative of Xxx.
Xxx Tokyo Co., Ltd.-Tesco Co., Ltd. (JV Agreement) September 6, 2004
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1.4. SCHEDULE. The JV Partners acknowledge and agree that the
incorporation of the JV company will be completed in a timely fashion, with
registration procedures to commence September 1, 2004.
2. REPRESENTATIONS AND WARRANTIES OF THE JV PARTNERS
The JV Partners hereby represent and warrant to each other
respectively, as of the date hereof, as follows:
2.1. ORGANIZATION, QUALIFICATION AND CORPORATE POWER.
(a) The JV Partners separately are a duly organized and
validly existing corporation under the laws of Japan and have all requisite
corporate power and authority for the ownership and operation of its properties
and for the carrying on of its business as now conducted and as now proposed to
be conducted. The JV Partners separately are duly qualified and are in good
standing as a foreign corporation or entity and authorized to do business in all
jurisdictions wherein the character of the property owned or leased, or the
nature of the activities conducted by it, makes such qualification or
authorization necessary, except where the failure to so qualify or be so
authorized would not have a material adverse effect on the company's assets,
business, prospects, liabilities, properties, condition (financial or otherwise)
or results of operations taken as a whole (a "MATERIAL ADVERSE EFFECT"). The JV
Partners separately have all requisite corporate power and corporate authority
to execute and deliver this Agreement, and to perform all its obligations
hereunder.
2.2. AUTHORIZATION; NO CONFLICT. The execution and delivery by the JV
Partners separately of this Agreement and the performance by them of their
respective obligations hereunder have been duly authorized by all requisite
corporate action and will not (a) violate (i) any provision of any applicable
law, or any order of any court or other governmental agency applicable to them,
(ii) the charter or organizational documents of their Company, or (iii) any
provision of any mortgage, lease, indenture, agreement or other instrument to
which their Company or any of its properties or assets is bound, or (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of their Company.
2.3. VALIDITY AND ENFORCEABILITY. This Agreement has been duly executed
and delivered by the JV Partners and constitutes the legal, valid and binding
obligation of the JV Partners, enforceable in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally.
2.4. DISCLOSURE. The JV Partners representations and warranties in this
Agreement and in the schedules and exhibits to this Agreement, do not contain
any untrue statement of a material fact or omit a material fact necessary to
make the statements contained herein or therein, taken as a whole, not
misleading.
Xxx Tokyo Co., Ltd.-Tesco Co., Ltd. (JV Agreement) September 6, 2004
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2.5. NO BROKERS OR FINDERS. No person has or will have, as a result of
the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the JV Partners for any commission, fee or other
compensation as a finder or broker arising out of the transactions contemplated
by this Agreement.
2.6. NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which
information was given in this Agreement or the Disclosure Schedule, except as
otherwise stated therein: (i) there has been no material adverse change in the
financial condition, or in the results of operations, affairs or prospects of
the JV Partners, whether or not arising in the ordinary course of business.
3. MISCELLANEOUS
3.1. COUNTERPARTS. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original instrument,
but all such counterparts shall together constitute but one and the same
instrument.
3.2. HEADINGS; CONSTRUCTION. The headings of the several sections,
divisions or subsections of this Agreement shall not be construed to constitute
any part or to affect the meaning of any such sections, divisions or
subsections. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption of burden of proof shall arise favoring
or not favoring any party by virtue of the authorship of any of the provisions
of this Agreement.
3.3. SEVERABILITY. If any provision of this Agreement or portion of any
provision, or the application thereof to any person or circumstance, shall, to
any extent, be held invalid or unenforceable, the remainder of this Agreement or
the remainder of such provision and the application thereof to other persons or
circumstances, other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law.
3.4. GOVERNING LAW. This Agreement, all exhibits and amendments hereto,
shall be governed in all respects under the internal laws of Japan. The parties
agree that they will not resort to the courts or other governmental agencies of
any other jurisdiction for the resolution of any such dispute or controversy and
agree to service by mail and waives any requirements of personal service. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
3.5. COMPLIANCE REQUIRED. The obligations of each of the parties
arising pursuant to this Agreement shall be expressly conditioned upon the full
compliance by the other party hereto with the terms set forth herein and in the
ancillary agreements referenced herein.
Xxx Tokyo Co., Ltd.-Tesco Co., Ltd. (JV Agreement) September 6, 2004
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective corporate officers thereunto duly
authorized on the day and year first above written.
XXX TOKYO:
XXX TOKYO CO., LTD.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: President, CEO
TESCO:
TESCO CO., LTD.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President, CEO
Xxx Tokyo Co., Ltd.-Tesco Co., Ltd. (JV Agreement) September 6, 2004
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