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EXHIBIT 10.29
VENTURE INDUSTRIES GROUP
PARTICIPATION AGREEMENT
BETWEEN:
Venture Industries Corp, a US company having its principal office at
33662 James J Pompo Drive, Fraser, Michigan.
("Venture US")
AND
Venture Asia Pacific Pty Ltd, an Australian company having its principal
office at Level 19, 90 St Kilda Road, Melbourne Victoria.
("Venture Australia")
WHEREAS
A Venture US possesses the managerial staff and employees who by training,
education and experience are capable of providing management,
co-ordination, commercial, marketing and procurement services.
B Venture US possesses sales and marketing staff who by training,
education, experience and location are capable of providing sales support
to customers of Venture Australia.
C Venture Australia wishes to benefit from the above expertise through
the provision of services upon the terms and conditions hereinafter
set forth.
IT IS AGREED AS FOLLOWS:
I DEFINITIONS
1.1 Definitions
The following definitions apply unless the context requires otherwise.
"Know-How" means
(a) trade secrets and other like property of Venture.
(b) technical, industrial, commercial knowledge or information of Venture US.
(c) information of Venture US in respect of improvement to manufacturing
processes.
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"Net Selling Price" means the value, expressed in dollars, [of the gross
receipts received by or on behalf of Venture Australia for the sale, lease or
other disposal of or dealing with the Products, less:
(a) the cost of transport and freight;
(b) insurance charges;
(c) purchase or sales tax or any government charges;
(d) genuine trade and other discounts; and
(e) credits allowed in respect of defective Products.]
"Products" means [the stock-in-trade of Venture Australia].
"Services" means the supply of assistance including but not limited to:
(a) visits by experts of Venture US to advise and train employees of Venture
Australia in relation to the Know-How;
(b) commercial services (sales and marketing);
(c) product design services;
(d) tool design services;
(e) administrative services;
(f) financial services;
(g) procurement services;
(h) provision of senior management; and
in particular includes the services in Schedule A.
"Term" means the term of this Agreement, commencing on 1 July 1995 and expiring
on 31 December 2004 or an extended date agreed by the parties.
2 GRANT
2.1 Subject to the Agreement Venture US shall provide services to Venture
Australia.
2.2 The services shall be provided exclusively to Venture Australia.
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3 TERM
This agreement continues in full force and effect for the Term, unless
terminated earlier by the agreement of the parties or in accordance with
this Agreement.
4 CONSIDERATION
4.1 In respect of the Services provided, Venture Australia shall pay:
(a) commissions in respect of each year at a rate of 3% of the Net Selling
Price of the Products and expenses (direct out of pocket);
(b) a service fee at the rate of $100,000 per month.
4.2 Should either party consider that a payment due under this Agreement does
not constitute a fair and reasonable market value it may, by notice, call
on the other party to renegotiate the consideration payable in clause 4.1
and the parties shall then, in good faith, renegotiate the consideration.
4.3 Consideration under clause 4.1 shall become due and payable as and when
agreed by the parties.
4.4 Payment of the consideration shall be made in [US] dollars and shall be
deposited by electronic funds transfer to a bank account in the United
States nominated by Venture US.
5 ANNUAL REPORT
Venture Australia shall deliver to Venture US on an annual basis a
statement setting out the nature, amount and Net Selling Price of
Products sold during the year by Venture Australia.
6 INTEREST ON ARREARS
Venture Australia shall pay to Venture US interest on any consideration
due and payable by Venture Australia to Venture US under this agreement
and unpaid. Such interest shall be payable at the rate of 10% per annum
and shall accrue daily.
7 TERMINATION BY VENTURE US
Venture US, in addition to any other right of Venture US in this
Agreement, may terminate the Agreement by notice to the Venture Australia
in any of the following circumstances:
(a) (UNPAID CONSIDERATION) Any consideration in excess of $100,000
due to Venture US by Venture Australia is unpaid within 60 days
from the agreed date upon which consideration becomes due and
payable.
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(b) (MATERIAL BREACH) Venture Australia commits a material breach of this
Agreement and if the breach is capable of being remedied, Venture
Australia fails to remedy the breach within [30] days after being
required to do so.
(c) (CHANGE OF CONTROL) The power, whether held directly or indirectly
and by whatever means (and whether or not enforceable at law or in
equity):
(i) to exercise or control the right to vote attached to [50%] or
more of the issued shares in Venture Australia; or
(ii) to dispose of or exercise a right of disposal in respect of
[50%] or more of the issued voting shares in Venture
Australia; or
(iii) to appoint one half or more of the number of directors to
the board of Venture Australia; or
(iv) to determine substantially the conduct of Venture Australia's
business activities,
resides with any persons other than those holding that power on the
date on which this Agreement is executed.
(d) (SUSPENSION OF PAYMENTS OR INSOLVENCY) Venture Australia:
(i) stops or suspends or threatens to stop or suspend payment of
all or a class of its debts;
(ii) is insolvent within the meaning of section 95A of the
Corporations Law;
(iii) a court is required by reason of section 459(2) to presume
that the party is insolvent;
(iv) fails to comply with a statutory demand (within the
meaning of section 459F(1) of the Corporations Law);
(v) an administrator is appointed over all or any of its assets
or undertaking any step preliminary to the appointment of an
administrator or undertaking; or
(vi) a controller within the meaning of section 9 of the
Corporations Law or similar officer is appointed to all or
any of its assets or undertaking; or
(vii) an application or order is made, proceedings are commenced,
a resolution is passed or proposed in a notice of meeting or
an application to a court or other steps taken [(other than
frivolous or vexatious applications, proceedings, notices or
steps)] for its winding up or dissolution or for it to enter
an
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arrangement, compromise or composition with or assignment
for the benefit of its creditors, a class of them or any of
them.
8 RIGHTS ON TERMINATION
RIGHTS TO CEASE ON TERMINATION OF THE AGREEMENT
Upon the termination of the Agreement under clause 7, all rights held by
Venture Australia under the Agreement will cease immediately.
9 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties with
respect to its subject matter.
10 AMENDMENT
No amendment or variation of this Agreement is valid or binding on a
party unless made in writing executed by all parties.
11 SEVERANCE
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
12 NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by a party operates as a waiver. A single or partial exercise of
any right, power or remedy does not preclude any other or further
exercise of that or any other right, power or remedy. A waiver is not
valid or binding on the party granting that waiver unless made in
writing.
13 COSTS AND STAMP DUTY
Each party shall bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty (including
fines, penalties and interest) which may be payable on or in connection
with this Agreement and any instrument executed under this Agreement
shall be borne by the Licensee.
14 NO PARTNERSHIP
This Agreement does not constitute either party a partner, agent or
employee of the other and no party has the authority or power to bind,
contract in the name of or create a liability
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against the other party.
15 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Victoria and the Commonwealth
of Australia. Each party submits to the non-exclusive jurisdiction of
courts exercising jurisdiction in Victoria and the Commonwealth of
Australia in connection with matters concerning this Agreement.
16 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts will constitute one instrument.
EXECUTED as an Agreement
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ANNEXURE
1 PROCESSES
Manufacturing processes for use by Venture Australia including:
(a) injection molding processes; and
(b) plastic molding processes.
2 IMPROVEMENT OF PROCESSES
Information in relation to:
(a) raw materials;
(b) manufacturing improvements;
(c) process improvements;
(d) synchronous (In Kaisan) manufacturing.
3 TECHNICAL INFORMATION
3.1 Provision of technical information including:
(e) access to training personnel and facilities;
(f) library services, technical library searches; and
(g) relevant magazine reports.
3.2 Provision of expert advice by means of:
(a) visits by employees of Venture US to Venture Australia's premises;
(b) facilitation of attendance at global conferences to be organized by
Venture US;
3.3 Provision of technical advice in respect of commissioning equipment and
plant.
4 PROCUREMENT SERVICES
4.1 Venture US shall:
(a) assist in the procurement of equipment;
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(b) obtain and pass on to Venture Australia discounts obtained on the
purchase of equipment;
(c) procure specific raw materials as instructed from time to time by
Venture;
(d) provide information as to the range and availability of machinery
worldwide; and
(e) assist with the commissioning of equipment.
5 MARKETING
5.1 Provision of assistance in respect to:
(a) international market condition;
(b) marketing strategies developed for specific purposes as requested by
Venture.
6 SALES SUPPORT
Provision of sales support to Ford ensuring that Products meet design,
delivery and pricing requirements.
7 EXECUTIVE MANAGEMENT
Includes the costs associated with the provision of the following
services and functions:
- planning
- budgeting
- coordination
- employee and compensation benefits
- employee relations
- policy setting
7 ADMINISTRATION
8 FINANCE/TREASURY
9 LEGAL SUPPORT
10 SYSTEMS OPERATION AND MAINTENANCE