Exhibit 10.25
THIS AGREEMENT is entered into on this 24 day of March 2000 by and
between xXxxx.xxx, Inc., a Delaware corporation with a registered address at 000
Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, Delaware, United States ("ENOTE"),
and EESKY TELECOM a.s., a Czech joint stock company with a registered address at
Xxxxxxxx 0, Xxxxxx 0 000 00 ("TELECOM", and together with eNote, collectively,
the "Parties" and each a "Party" (including, possibly, a subsidiary of Party, as
noted below)).
RECITALS
WHEREAS, eNote is engaged in the business of developing, manufacturing
and marketing low cost Internet appliances for consumers and businesses;
WHEREAS, eNote has developed TVemail(TM), a television based,
non-interactive, low-cost, easy-to-use appliance that allows customers access to
email, news, information and shopping via the Internet without the need for a PC
or any Internet related know-how (the "SERVICE");
WHEREAS, eNote and Telecom desire to explore opportunities for
cooperation in marketing and distributing the Service in the Czech Republic and
the Slovak Republic, with a view to potentially expanding the relationship to
market and distribute the Service in other countries throughout Central and
Eastern Europe and beyond;
WHEREAS, pursuant to Section 269(2) of Act No. 513/1999 Coll., as
amended, the Commercial Code of the Czech Republic, the Parties have entered
into this Agreement to set forth their mutual understandings in respect of a
possible transaction on the terms set forth herein;
NOW, THEREFORE, the Parties hereby agree as follows:
1. THE VENTURE. It is presently contemplated that the venture (the
"VENTURE") would involve the Parties cooperating in marketing and distributing
the Service in the Territory on substantially the following terms and
conditions:
(a) THE TERRITORY. Initially, the Territory would be the Czech
Republic and the Slovak Republic. The Parties would negotiate to expand the
Territory on mutually agreeable terms to include any or all of those countries
generally considered to be within Central and Eastern Europe as specifically
agreed to by the Parties (the "EXPANSION COUNTRIES").
(b) RELATIONSHIP OF PARTIES. The Parties would carry out the
Venture either through a joint venture, revenue sharing or exclusive
distributorship arrangement, or other vehicle mutually agreed upon by the
Parties.
(c) EXCLUSIVITY. During the term of the Venture, neither Party
would have the right to market or distribute in the Territory any service that
is similar to, or competes with, the Service, other than pursuant to the
Venture.
(d) EXPANSION COUNTRIES. eNote would agree to keep Telecom
informed of any and all discussions or negotiations undertaken by or on behalf
of eNote in relation to the marketing or distribution of the Service in any
Expansion Country that is not then within the Territory. In such event, eNote
would confer with Telecom to determine if eNote and Telecom could agree to an
arrangement for the marketing and distribution of the Service in the applicable
Expansion Country on mutually acceptable terms.
(e) STRUCTURE. Either Party would have the right to accomplish
the Venture directly or through one or more subsidiaries.
2. CONDITIONS. Consummation of the Venture would be subject to:
(a) negotiation and execution of all definitive agreements
providing for the Venture (collectively, the "DEFINITIVE AGREEMENTS"), mutually
acceptable in form and substance to both Parties;
(b) receipt of all necessary approvals by both Parties,
including without limitation, all internal corporate approvals and, if
applicable, all approvals required under applicable competition and other laws
and contracts; and
(c) completion of all necessary due diligence to the
respective satisfaction of each Party.
3. COOPERATION. Within fifteen (15) business days after the date
hereof, eNote shall deliver to Telecom a technical package for the Service. The
technical package shall include all information regarding the Service that is
necessary for Telecom to evaluate the Service and the feasibility of marketing
and distributing the Service in the Territory, including information regarding
the technical parameters of the Service and marketing data for the Service.
Promptly after execution of this Agreement, each Party shall identify a
representative and cause its representative to cooperate with the other Party's
representative to develop an economic model for the Venture. Within thirty (30)
days after the date hereof, the Parties shall cause their respective
representatives to meet to discuss the economic model developed for the Venture
and determine whether the Parties will continue pursuing the Venture. If the
Parties' representatives determine to continue pursuing the Venture, at such
meeting they shall also discuss the final structure of the Venture, including
whether each Party will participate directly or through one or more subsidiaries
and whether the Venture will be accomplished through a joint venture, revenue
sharing or distributorship arrangement and the Expansion Countries that will be
included in the Territory. If the Parties shall determine to continue pursuing
the Venture, the Parties shall undertake to negotiate the final terms of the
Venture and, if appropriate, to prepare, negotiate, execute and deliver the
Definitive Agreements, and upon the execution and delivery thereof, if any, the
terms, provisions and conditions contained therein shall supersede all of the
terms, provisions and conditions of this Agreement. Neither Party shall be bound
in any way to proceed with the Venture unless and until the Definitive
Agreements providing for the Venture are executed and then only to the extent
therein provided.
4. EXCLUSIVITY. From the date hereof until the earlier of (a) the
termination of this Agreement and (b) the execution of the Definitive
Agreements, neither Party will, and each Party shall cause its respective
officers, directors, employees, affiliates, representatives, advisors and agents
(collectively, "REPRESENTATIVES") not to, without the prior written consent of
the other Party, directly or indirectly, discuss, negotiate, undertake,
authorize, recommend, propose or enter into any venture, partnership or other
similar arrangement involving the marketing or distribution in the Czech
Republic, the Slovak Republic or any of the Expansion Countries of the Service
or any service similar to or that competes with the Service.
5. CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS.
(a) DUTY OF CONFIDENTIALITY. Each Party (such Party, a
"RECIPIENT") receiving Confidential Information (as hereinafter defined) from
the other Party (such Party, a "DISCLOSING PARTY") agrees that, until the
earlier of the execution of the Definitive Agreements and the date that is two
years after the termination of this Agreement, it shall keep confidential and
will not disclose to any individual, business, corporation, trust,
unincorporated organization, government, governmental body, agency, political
subdivision or other entity (each, a "PERSON"), and that it will not use, either
for its own benefit or for the benefit of any other Person, any such
Confidential Information other than disclosures to those of its Representatives,
lenders, investors and shareholders as are necessary for purposes of evaluating
and effecting the Venture and except as otherwise may be agreed to in writing by
the Disclosing Party. Each Recipient shall xxxx as confidential all Confidential
Information received by it which it delivers to its Representatives, shall
inform its Representatives of the confidential nature of such Confidential
Information and shall instruct its Representatives to keep such Confidential
Information confidential in accordance with the terms and conditions of this
provision.
(b) CONFIDENTIAL INFORMATION. For purposes hereof,
"CONFIDENTIAL INFORMATION" shall mean, in respect of any Recipient, any and all
information relating to the other Party, or the other Party's activities in the
Czech Republic, the Slovak Republic or any of the Expansion Countries, or the
Service, whether presented in written or oral form, together with analysis,
compilations, studies or other documents prepared by the Recipient, or its
Representatives, which contain or otherwise incorporate such information.
Confidential Information shall also include any
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information relating to the contents of this Agreement, the Definitive
Agreements, or the transactions contemplated hereby or thereby. Confidential
Information shall not include information that (i) is or becomes available to
the public other than as a result of a disclosure by the Recipient or its
Representatives in violation of this provision, (ii) is obtained by the
Recipient from a source other than the Disclosing Party that is not in violation
of a contractual obligation to such Disclosing Party with respect to such
portions of such Confidential Information, or (iii) is approved for release by
the Disclosing Party.
(c) RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. At the
request of a Disclosing Party, a Recipient will promptly destroy or return any
Confidential Information of the Disclosing Party, together with all copies in
its possession, except for those portions of such Confidential Information
consisting of analysis, compilations, studies or other documents prepared by the
Recipient, or its Representatives, which the Recipient will either destroy or
retain and keep confidential subject to the terms and conditions of this
provision.
(d) LEGAL DUTY TO DISCLOSE. If a Recipient becomes legally
compelled to disclose any Confidential Information, such Recipient will promptly
provide the Disclosing Party with notice to permit it to seek a protective order
or other appropriate remedy and/or to waive compliance with these provisions. A
Recipient will disclose only that portion of such Confidential Information that
such Recipient is legally required to disclose.
(e) PUBLIC STATEMENTS. Each Party shall consult with the other
Party and obtain the prior written consent of the other Party before (i)
responding to any third party statement or announcement regarding the Venture or
the content of this Agreement, and (ii) issuing any press release or otherwise
making any public statements, announcements or filings with respect to the
Venture or this Agreement, and shall not issue any such press release or make
any such public statement, announcement or filing prior to such consultation,
except as may be required by applicable law or regulations.
6. TERMINATION. This Agreement shall terminate (a) upon the
determination of the Parties not to continue pursuing the Venture as
contemplated in Section 3, (b) upon the determination of the Board of Directors
or other duly authorized statutory body or individual of either Party not to
approve or proceed with the Venture, (c) at the election of either Party, after
the date that is sixty (60) days after the date of this Agreement, (d) at the
election of Telecom, if eNote shall breach any provision of this Agreement, or
(e) at the election of eNote, if Telecom shall breach any provision of this
Agreement. Any such termination shall be effective upon written notice from the
terminating Party to the other Party. Sections 5 and 7 hereof shall survive any
termination or expiration of this Agreement.
7. MISCELLANEOUS.
(a) BINDING PROVISIONS. Except for Sections 3, 4, 5 and 6
hereof and this Section 7, which the Parties represent and agree are binding on
themselves, this Agreement is not a binding agreement, but rather a statement of
mutual intention. This Agreement shall not constitute an agreement on future
contract. The Parties shall not have any obligation with respect to any of the
transactions contemplated hereby or in the Definitive Agreements unless and
until each such Definitive Agreement is satisfactory to each of the Parties
thereto, as conclusively evidenced by the execution and delivery thereof at its
sole discretion.
(b) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Czech Republic.
(c) AMENDMENTS AND MODIFICATIONS. This Agreement may be
amended, modified and supplemented only by written agreement signed by both
Parties.
(d) WAIVER OF COMPLIANCE. Any of the terms or conditions of
this Agreement that may be lawfully waived may be waived at any time by the
Party that is entitled to the benefits thereof. Any such waiver by either Party
shall be in writing and signed on behalf of such Party.
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(e) NOTICES. Notices or other communications hereunder shall
be in writing and shall be deemed given effectively (i) upon delivery if
delivered personally, (ii) upon delivery if delivered by courier or (iii) upon
receipt if given by telefax, in each case if addressed as follows:
If to Telecom:
Xxxxxxxx 0
000 00 Xxxxxx 0
Xxxxxxxxx: Bessel Kok
Fax: x000 0 0000 0000
with a copy to:
Weil, Gotshal & Xxxxxx x.x.x.
Xxxxxxx Bridge Center
K i ovnicke nam. 1
000 00 Xxxxxx 0,
Xxxxx Xxxxxxxx
Attention: Managing Partner
Fax: x000 0 0000 0000
If to eNote:
000 Xxxxx Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: 000-000-0000
or such other address as shall be furnished in writing by either Party.
(f) ASSIGNMENT. The binding provisions of this Agreement shall
be binding upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the Parties without the prior written consent of the other Party.
(g) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the Parties in respect of the subject matter
contained herein, and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any executive, officer, director, employee or representative of
either Party.
(i) ARBITRATION. Any and all disputes arising out of or
relating to this Agreement, including its interpretation shall be resolved in
arbitration in accordance with this Section. Any right by either Party to appeal
to any court shall be excluded. Arbitration shall be conducted under the Rules
of Arbitration of the International Chamber of Commerce (the "RULES"). The
arbitration tribunal shall consist of three arbitrators appointed in accordance
with the Rules. The seat of the arbitration tribunal shall be in Vienna, Austria
and the language of the arbitration shall be English.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement, or in any other document, agreement or
instrument referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other such document, agreement or instrument,
and the Parties shall attempt to deliver the benefits of such provision in a
manner that is not invalid, illegal or unenforceable.
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(k) EXPENSES. Unless otherwise provided in the Definitive
Agreements, each Party shall pay its own expenses in connection with this
Agreement and the transactions contemplated thereby.
(l) REGULATORY CONTACTS. Each Party agrees to consult with the
other in advance of any material communications with governmental or regulatory
authorities regarding the Venture.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
EESKYTELECOM a.s.
By: /s/ X.X. Xxxxxx Kok
----------------------------
Name: X.X. Xxxxxx Kok
----------------------------
Title: Chief Operating Officer
----------------------------
XXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
----------------------------
Title: President and CEO
----------------------------
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