Joint Venture Agreement SPA

JOINT VENTURE AGREEMENT SPA

This Joint Venture Agreement SPA ("Agreement") is entered into as of Day: Month: Year: by and between Party A: , an entity organized as under the laws of , with principal place of business at ; and Party B: , an entity organized as under the laws of , with principal place of business at (each a "Party" and together the "Parties").

RECITALS

WHEREAS, the Parties desire to combine certain resources and undertake a joint business enterprise pursuant to the terms and conditions set forth herein for the purpose described below; and

WHEREAS, each Party represents that it has the full corporate power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby, subject to the representations, warranties and covenants set forth in this Agreement; and

WHEREAS, the Parties intend that the Joint Venture be conducted in a manner that maximizes value for the Parties consistent with the terms of this Agreement and applicable law.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 Defined Terms. For purposes of this Agreement, the following capitalized terms shall have the meanings set forth below. "Agreement" means this Joint Venture Agreement SPA and any schedules attached hereto. "Business" means the activities described in Section 2. "Capital Contribution" means any cash, property, services, intellectual property or other consideration contributed to the Joint Venture by a Party in accordance with Section 4. Terms defined elsewhere in this Agreement shall have the meanings given to them therein.

2. FORMATION AND PURPOSE

2.1 Formation. The Parties hereby form a joint venture relationship (the "Joint Venture") to carry out the business and operations set forth in this Agreement. The Joint Venture shall not be deemed a partnership, joint stock company or other entity except as expressly provided in this Agreement and applicable law.

2.2 Purpose. The purpose of the Joint Venture is to: (the "Business").

3. NAME; PRINCIPAL PLACE OF BUSINESS

3.1 Name. The Joint Venture shall operate under the name or such other name as the Parties may agree in writing.

3.2 Principal Place of Business. The principal place of business of the Joint Venture shall be , or such other location as determined by the Management Committee.

4. CAPITAL CONTRIBUTIONS; OWNERSHIP

4.1 Initial Contributions. Each Party shall make the initial Capital Contribution set forth opposite its name below:

4.2 Additional Contributions. No Party shall be required to make additional Capital Contributions except as agreed in writing by the Parties. Any additional contribution shall be evidenced by an amendment to this Agreement and shall adjust Ownership Interests as set forth in such amendment.

5. GOVERNANCE; MANAGEMENT COMMITTEE

5.1 Management Committee. The Joint Venture shall be managed by a Management Committee comprised of members. Party A shall appoint members and Party B shall appoint .

5.2 Authority and Voting. The Management Committee shall have authority to make all decisions necessary for the conduct of the Business, except those matters expressly reserved to the Parties by this Agreement. Actions of the Management Committee shall require the affirmative vote of a majority of members unless a higher threshold is expressly required.

5.3 Reserved Matters. Notwithstanding Section 5.2, the following matters require unanimous approval of the Parties: (a) amendment of this Agreement; (b) incurrence of indebtedness exceeding ; (c) sale, lease or disposition of substantially all Joint Venture assets; and (d) commencement of any litigation involving more than .

6. PROFITS, LOSSES AND DISTRIBUTIONS

6.1 Allocation. Profits and losses of the Joint Venture shall be allocated to the Parties in proportion to their Ownership Interests, unless otherwise agreed in writing.

6.2 Distributions. Distributions shall be made at such times and in such amounts as determined by the Management Committee, subject to withholding for taxes, reserves for liabilities and working capital requirements as reasonably determined by the Management Committee.

7. ACCOUNTS; RECORDS; AUDIT

7.1 Records. The Joint Venture shall keep full and accurate books of account in accordance with generally accepted accounting principles consistently applied. Such books shall be maintained at the principal place of business and shall be available for inspection by either Party during normal business hours.

7.2 Annual Audit. The books and accounts shall be audited annually by an independent certified public accountant selected by mutual agreement of the Parties. The cost of the audit shall be borne by the Joint Venture.

8. TRANSFERS; RIGHT OF FIRST REFUSAL

8.1 Restrictions. Except as provided herein, no Party shall Transfer or otherwise dispose of its Ownership Interest without the prior written consent of the other Party. Any purported Transfer in violation of this Section shall be null and void.

8.2 Right of First Refusal. Prior to any permitted Transfer, the transferring Party shall deliver a written offer specifying the terms of the proposed Transfer. The non-transferring Party shall have a right of first refusal to acquire the offered interest on the same terms and conditions for a period of days following delivery of such offer.

9. CONFIDENTIALITY

9.1 Confidential Information. Each Party shall keep confidential all non-public information concerning the Business and the Joint Venture and shall not disclose such information except to its officers, employees, advisors or as required by law. Each Party shall use Confidential Information solely for purposes of performing under this Agreement.

10. REPRESENTATIONS AND WARRANTIES

10.1 Mutual Representations. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has full power, authority and legal right to execute, deliver and perform this Agreement; and (c) the execution, delivery and performance of this Agreement by such Party does not and will not violate any agreement, judgment, order or instrument binding on such Party.

11. INDEMNIFICATION; LIMITATION OF LIABILITY

11.1 Indemnification. Each Party (an "Indemnifying Party") shall indemnify, defend and hold harmless the other Party and its affiliates from and against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees) arising out of the Indemnifying Party's breach of any representation, warranty or covenant under this Agreement or its gross negligence or willful misconduct.

11.2 Limitation of Liability. Except for liability arising from a Party's gross negligence, willful misconduct or breach of confidentiality and indemnity obligations, neither Party shall be liable to the other for consequential, punitive, exemplary or indirect damages.

12. TERM; TERMINATION

12.1 Term. This Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section.

12.2 Termination Events. This Agreement may be terminated: (a) by mutual written agreement of the Parties; (b) upon the insolvency or bankruptcy of a Party; (c) upon material breach by a Party that remains uncured for a period of days following written notice; or (d) as otherwise provided herein.

13. DISPUTE RESOLUTION

13.1 Negotiation and Mediation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation between senior executives. If not resolved within 30 days, the Parties agree to submit the dispute to non-binding mediation prior to pursuing litigation.

13.2 Arbitration. If mediation does not resolve the dispute, the Parties agree to binding arbitration conducted by a single arbitrator in the jurisdiction selected in Section 16. The arbitrator shall apply the substantive law of the chosen jurisdiction and the award shall be final and binding and enforceable in any court of competent jurisdiction.

14. NOTICES

14.1 Method. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be delivered by hand, nationally recognized overnight courier, or certified mail (return receipt requested) to the addresses set forth below or to such other address as a Party may specify by written notice.

15. ASSIGNMENT

15.1 Assignment. Except as provided in this Agreement, neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided that a Party may assign this Agreement to an Affiliate or in connection with a merger, sale of substantially all of its assets or similar transaction, subject to compliance with the transfer restrictions in Section 8.

16. GOVERNING LAW; VENUE

16.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of , without regard to its conflicts of law principles.

16.2 Venue. Subject to the arbitration provisions in Section 13, the Parties submit to the exclusive jurisdiction of the courts located in the jurisdiction specified above for the resolution of any dispute not subject to arbitration.

17. ENTIRE AGREEMENT; SEVERABILITY; AMENDMENT; WAIVER; COUNTERPARTS

17.1 Entire Agreement. This Agreement, including any schedules and exhibits hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.

17.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the Parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid provision that achieves, to the extent possible, the economic, legal and commercial objectives of the original provision.

17.3 Amendment; Waiver. This Agreement may be amended only by a written instrument signed by both Parties. No failure or delay by a Party in exercising any right under this Agreement shall operate as a waiver of that right, nor shall any single or partial exercise of any right preclude further exercise of that right or the exercise of any other right.

17.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be binding as originals.

18. MISCELLANEOUS

18.1 Relationship of the Parties. The Joint Venture is a contractual relationship between the Parties. Nothing in this Agreement shall be construed to create an agency, partnership, fiduciary relationship or employment relationship other than as expressly set forth herein.

18.2 Further Assurances. Each Party agrees to execute and deliver such further instruments and to take such further actions as may be reasonably necessary to effectuate the provisions of this Agreement.

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