Joint Venture Agreement

to 49% of the value of the Business to the capital of the Company in accordance with article 2.1. The rights and liabilities of the Parties shall be as provided in the Company Code, except as otherwise provided in this Agreement and in the articles of Association of the JVC.

1.2. Except as may otherwise be approved by the Board of Directors of the Company (the “Board”)(which approval must include the affirmative vote or consent of Directors designated by Party 1), the purpose of the Company shall be to engage in any lawful business in any way related to the business of __________, on a worldwide basis. The Company shall have all powers necessary or desirable to accomplish the aforesaid purposes. In connection therewith, the Company may engage in and enter into any and all activities, contracts and agreements related or incidental to the above-stated purposes as the Board may determine to be appropriate from time to time. The Company shall have the power to do all things necessary, appropriate, advisable, convenient, or incidental in connection with the fulfilment of its business purposes.

1.3. The principal offices of the Company shall be located at __________ or such other location as determined by the Board from time to time. The registered office of the Company is located at __________ [address], Belgium.

1.4. The name of the Company shall be __________ or such other name as the Board may from time to time select(which decision must include the affirmative vote or consent of Directors designated by Party 1).

1.5. The existence of the Company commences on the date its act of incorporation is filed and shall continue in perpetuity until terminated, liquidated, or dissolved by law or as hereinafter provided in article 9.

Article 2 – Contribution to the Joint Venture.

2.1. Upon the terms and subject to the conditions set forth herein, Party 1 will sell, assign and transfer to JVC the Business which the Parties agree to be valued equal to __________ euro [amount in words] (€ __________) [amount in numbers]. The transfer of the Business shall take place in accordance with the details set forth in the Asset Purchase Agreement                                            attached in Annex III hereto.

2.2. The Closing of the transactions contemplated by this Agreement and the Asset Purchase Agreement shall take place at the offices of __________ at __________, on __________, or at such other time and place as the Parties hereto may mutually agree. The date on which the Closing occurs is called the “Closing Date.” To effect the steps set forth in this article 2, the Parties shall execute and deliver to each other and to third parties, as appropriate, all documents reasonably necessary to effect the Closing. Each of the Parties shall use commercially reasonable efforts to obtain, at its sole expense, each consent related to its own transaction set forth in this article 2.

2.3. Except as set forth in Exhibit __________, the Business is being conducted in compliance with all laws applicable to the Business and, as of the Closing, the JVC will have (subject to obtaining possible consents) all governmental authorisations necessary for the conduct of the Business as currently conducted, except for such non-compliance or the failure to obtain such consent which would not have a material adverse effect; it being understood that nothing in this representation is intended to address any compliance issue that is the subject of the representations and warranties set forth in the Asset Purchase Agreement, and that Party 1 makes no representations in this article as to the transf

erability or assignability of any such governmental authorisations. Party 1 has received no written notice that any material governmental authorisation may be suspended, revoked, modified or cancelled.

Article 3 – Financial Matters

3.1. Loans by a Party to the Company shall not be considered capital contributions. Such loans shall bear interest at arm’s length market rates and may contain other customary commercial terms as agreed by the Company and the Party; [optional] provided, however, that any such loans shall be fully subordinated to the Company’s debt in accordance with terms that are reasonably acceptable to each Party. If any Party shall advance funds to the Company in excess of the amounts required hereunder to be contributed by such Party to the capital of the Company, such advances shall not increase the capital of such Party. The amounts of any such advances shall be a debt of the Company to such Party and shall be payable or collectable only out of Company assets in accordance with the terms and conditions upon which such advances are made.

3.2. Except as otherwise provided herein or by the Company Code, no Party shall have the right to withdraw, or receive any return of, all or a portion of such Party’s capital contribution, nor shall any Party have the right to demand and receive property other than cash in return for its capital contribution.

3.3. All Company’s property, whether contributed by a Party or otherwise acquired by the Company, shall be owned by the Company as a separate legal entity and no Party shall have any right of partition with respect to any property. The Board shall cause the Company to execute, file and record such documents as may be necessary or appropriate to reflect the Company’s ownership of Company’s property in appropriate public records.

3.4. No Party shall be liable to the Company or to any other Party to restore any deficit in the capital of the Company (except as may be required by the Company Code) or to reimburse any other Party for any portion of such other Party’s investment in the Company. No Party shall have priority over any other Party, either as to the return of its capital contribution or as to income, losses, interest, returns, or distributions.

3.5. The Company shall not enter into any transaction, other than the Asset Purchase Agreement, with any Party or any affiliate of any Party except on arms length terms.

3.6. Commencing on the date of the JVC and until the end of its term, all profits, losses and other allocations to the joint venture shall be allocated pro rata based on the Parties’ respective Percentage Interest in the capital of JVC.

Article 4 – Governance of JVC  

4.1. Subject to the delegation of rights and powers provided herein, the Board shall have the sole right to manage the business of the Company and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Company. No Party, by reason of its status as such, shall have any authority to act for or bind the Company or otherwise take part in the management of the Company, but shall have only the right to vote on or approve the matters specifically provided herein or in the Company Code (or hereafter specified by the Board) to be voted on or approved or determined by the Parties.

4.2. The Board shall consist of __________ Directors. Each Party shall have the right to designate such number of Directors (rounded up or down to the nearest whole number) as is in proportion to its respective Percentage Interest; provided that ea

ch Party shall, so long as it holds any shares in the Company, be entitled to appoint at least one Director to the Board . Each Party shall provide notice of its initial designations of Directors in writing to the other on or prior to the Closing Date. Each Director shall hold office until such Director’s resignation, removal, death or incapacity; provided, however, that if the number of Directors that a Party is entitled to designate is reduced by reason of a change in share ownership, the one or more affected Directors appointed by such Party shall automatically cease to be Directors (if more than one, in the reverse order of the date of their respective appointments).

 Directors shall hold office at the pleasure of the Party that designated them. Any Party may at any time, by written notice to the other Party and the Company, remove (with or without cause) any Director designated by such Party. Subject to applicable law and to the provisions of this article, a Director may not be removed except by written request of the Party that designated the Director. In the event a vacancy occurs on the Board for any reason, the vacancy will be filled by the written designation of the Party that designated the Director creating the vacancy.

4.3. Meetings of the Board may be called by any Director on two business days’ prior written notice to all Directors stating in general the purpose or purposes thereof; provided, however, that any Director may waive such notice prior to, at or after the meeting. The presence in person of a majority of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board. Each Party shall use its reasonable efforts to ensure that a quorum is present at any duly convened meeting of the Board. If at any meeting of the Board a quorum is not present, a majority of the Directors present may, without further notice, adjourn the meeting from time to time until a quorum is obtained. Each Director shall be entitled to cast one vote on each matter considered by the Board. Except as otherwise expressly provided by this Agreement, the decision of a majority of the Directors present at any meeting at which a quorum is present shall constitute an act of the Board.

4.4. The nomination for the Chairman of the Board shall be made by Party 2 as long as it owns not less than 51% of the issued and outstanding shares of JVC. If a deadlock arises, the Chairman will include the proposed resolution with respect to which such deadlock has arisen on the agenda of the next meeting of the Board. If a deadlock also arises with respect to the matter covered by any such proposed resolution at such next meeting, the matter shall be brought to the attention of a senior executive of each shareholder who shall attempt jointly to agree on the matter within 1 month. Any such agreement will be binding on JVC.

4.5. The following matters shall require, in addition to any other vote required by the applicable law or as otherwise provided for herein, the affirmative vote of a majority of the Board in attendance, which majority must include Director(s) designated by Party 1:

(a) except as provided in article 9 hereof, and subject to the applicable law, any dissolution or liquidation of the Company;

(b) any merger, consolidation, conversion or other reorganisation involving the Company, or the sale or other disposition of all or substantially all of the assets of the Company in one transaction or a series of related transactions;

(c) the admission of an additional Party or shareholder of JVC; and

(d) any conclusion of, amendment to or waiver or termination of, any agreement between the Company and a Party, or any Ancillary Agreement.

4.6. Any Director, when making any determination in such capacity, including voting or acting by consent with respect to any matter, shall be entitled to act at his or her discretion, considering only such interests and factors as such Director desires, and such Director shall have no duty or obligation to give any consideration to any interest of, or other factors affecting, any Party.

4.7. Any meeting of the Board may be held by conference telephone or similar communication equipment so long as all Directors participating in the meeting can hear one another. All Directors participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting.

 Any action to be taken by the Directors at a meeting of the Board may be taken without such meeting by the written consent of all of the Directors then in office. Any such written consent may be executed and given by telecopy or similar electronic means and shall be filed with the minutes of the proceedings of the Board. If any action is so taken by the Board by the written consent of all of the Directors, prior notice of the taking of such action shall be furnished to each Director, which notice shall include a copy of the proposed consent, as well as any other information provided by the Company to any Director with such consent (provided that the effectiveness of such action shall not be impaired by any delay or failure to furnish such notice).

4.8. The Directors may, by resolution (which resolution shall have been approved by the Director(s) designated by Party 1) delegate any of the Board’s powers to one or more committees of the Board, each consisting of one or more Directors (other than the power to take the actions specified in article 4.4.). The Board, by resolution, may adopt further procedures relating to the conduct of business by any of the committees established by it.

 The Company shall have such officers as shall be appointed by the Board, each having such powers and duties as shall be provided by resolution of the Board. In addition, the Board may appoint, employ or otherwise cause the Company to contract with such other Persons for the transaction of the business of the Company or the performance of services for or on behalf of the Company as it shall determine at its discretion from time to time. The Board may delegate to any officer of the Company or to any such other Person such authority to act on behalf of the Company as the Board may from time to time determine appropriate in its discretion. The salaries or other compensation, if any, of the officers and agents of the Company shall be fixed from time to time by the Board. The Directors shall not be responsible for any misconduct or negligence on the part of any officer, agent or other person to whom authority is delegated, provided that such Person was appointed by the Directors with reasonable care.

4.9. No Director (acting solely in his capacity as such) shall have any authority to bind the Company to any third party with respect to any action except pursuant to a resolution authorising such action. Any Director or officer of the Company, or any other persons specifically authorised by the Board, may execute any contract or other agreement or document on behalf of the Company

Article 5 – General Meeting of Shareholders

In the event that any matter is required to be submitted to the Parties for their approval under the terms of this Agreement or the Company Code, the following provisions shall apply:

 

(a) the Parties may vote on any such matter at a meeting to be held at such time and place as shall be designated by the Board. Any meeting of the Parties may be held by conference telephone or similar communication equipment as long as all Parties participating in the meeting can hear one another. All Parties participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting. Parties shall be given at least __________ business days’ prior notice of any meeting; provided that any Party may waive such notice prior to, at or after the meeting. The notice shall specify the place, date and hour of the meeting and the general nature of the business to be transacted. Every Party entitled to vote or act on any matter at a meeting of the Parties shall have the right to do so either in person or by proxy;

(b) each Party shall be entitled to one vote for each share owned by it. At any meeting of Parties, the presence in person or by proxy of Parties having the right to vote more than 50% of the shares entitled to vote at such meeting shall constitute a quorum for the transaction of business. Except as otherwise required by this Agreement or applicable law, the affirmative vote of Parties having the right to cast more than 50% of the votes present at a meeting of Parties at which a quorum is present is required to approve any action requiring the Parties’ approval at such meeting;

(c) any action that may be taken at any meeting of Parties may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by all Parties. Any such written consent may be executed and given by telecopy or similar electronic means and such consents shall be filed with the minutes of the proceedings of the Parties.

Article 6 – Transfer restrictions

6.1. Except as permitted in article 6.2., neither Party may, or may cause or permit its affiliates owning shares, to transfer or enter into a transaction or obligation to transfer, shares in JVC owned or controlled by such Party or Affiliate during a period which ends __________  years from the Closing Date (the “Standstill Period”). Thereafter, a Party desiring to sell its shares in JVC must sell all of its shares and must follow the procedures set forth in the articles of association  of JVC.

6.2. A Party may at any time, without the consent of the other Party or the need to comply with the procedures set forth in this article, transfer, or cause any affiliate to transfer, all, or any part of the shares owned or controlled by it to any of its affiliates, provided, however, that such affiliate shall enter into, and deliver to the other Party, an undertaking in which it agrees to become bound by the provisions of this Agreement and the transferor shall remain responsible to the other Party for all of its duties and obligations under this Agreement and shall guarantee the performance by its affiliates of its duties and obligations under this Agreement.

Article 7 – Ancillary Agreements

7.1. Affiliates of the Parties may be engaged to perform services for the JVC provided such transaction, agreement or payment will be on an “at arm’s length” basis. The validity of any transaction, agreement or payment involving JVC and any affiliates of the Parties otherwise permitted by the terms of this Agreement (herein referred to as “Ancillary Agreements”) shall not be affected by reason of the relationship between them and such affiliates or the approval of said transactions, agreement or payment.

7.2. The Parties and their respective affiliates may have interests in businesses other than the joint venture business. The Company shall not have the right to the income or proceeds derived from such other business interests and, even if they are competitive with the joint venture business, such business interests shall not be deemed wrongful or improper.

Article 8 – Expenses

Except as otherwise expressly provided, all costs and expenses incurred and taxes payable in connection with the execution and implementation of this Agreement and the transactions contemplated herein in article 2, shall be shared by the Parties in proportion to their shareholding in JVC upon Closing.

Article 9 – Dissolution and Buy Out Rights

9.1. The Joint Venture shall be dissolved upon the occurrence of any of the following events:

(a) the unanimous consent of all Parties to dissolve the Company;

(b) the sale or other disposition of all or substantially all of the assets of the Company in one transaction or a series of related transactions;

(c) any Party holds less than __________ per cent (__________ %) of the outstanding shares; and

(d) the occurrence of an event causing a dissolution of the Company under the Company Code or applicable law, unless the Company is continued as permitted under the code.

9.2. If the Company is dissolved pursuant to this article, this Agreement shall remain in full force and effect and shall continue to govern the rights and obligations of the Parties and Directors and the conduct of the Company during the period of winding up of the Company’s affairs.

9.3. In the event of the occurrence of any of the events described in article 9.1., Party 2 shall have the option to either (a) cause the dissolution and wind up the Company pursuant to this article; or (b) cause a Subsidiary of Party 2 to purchase the shares held by Party 1 at a purchase price calculated by applying the Formula Price referred to in Exhibit to Party 1’s Percentage Interest, in which case the Company shall not be dissolved; or (c) to the extent legally permissible, take no action and continue the existence of the Company.

 Such option shall be exercised, and notice of such exercise provided to the Party 1, within __________ business days after the occurrence of any of the events as described in article 9.1.

Article 10 – Miscellaneous Provisions

10.1. This Agreement and its Annexes and Exhibits contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, written or oral, with respect to the same subject matter still in force between the Parties.

10.2. Any amendment to this Agreement, as well as any additions or omissions, can only be agreed in writing with the mutual consent of the Parties.

10.3. Whenever possible, the provisions of this Agreement shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if one or more provisions of this Agreement is found to be invalid, illegal or unenforceable, in whole or in part, the remainder of any such provision and of this Agreement shall not be affected and shall continue in full force and effect as if such an invalid, illegal or unenforceable

 provision had never been contained herein. Moreover, if the Parties decide to amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision, they should take care that the new or amended provision embodies as closely as possible the purpose of the invalid, illegal or unenforceable provision(s).

10.4. Neither Party shall be held liable for failure to perform under this Agreement (save for the payment of any sums due hereunder) if such failure is due to causes beyond its reasonable control (“overmacht/force majeure”), such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, (declared or undeclared) war, embargos, blockades, legal restrictions, riots, insurrections, governmental regulations or the unavailability of means of transport.

10.5. Any failure or delay by either Party in exercising any right under this Agreement, the exercise, in whole or in part, of any right under this Agreement, or any reaction or absence of reaction by either Party in the event of violation by the other Party of one or more provisions of this Agreement shall not operate or be interpreted as a waiver (whether express or implied, in whole or in part) of any of its rights under this Agreement or under said provision(s), nor shall it preclude the further exercise of any such rights. Any waiver of a right must be express and in writing. If one Party has expressly waived a right in writing following a specific failure by the other Party, this waiver cannot be invoked by the latter Party in favour of a new failure, similar to the previous one, or any other failure.

10.6. All notices and other forms of communication required under this Agreement must be in writing and delivered or transmitted to the recipient in person through a reputable courier service, by fax with a confirmation sheet or by registered mail (with acknowledgement of receipt) to the address indicated below:

 To the Party 1: __________

 To the Party 2: __________

 A notice shall be considered delivered to the recipient’s address on the date of delivery if delivered in person, the next working day if sent by fax and 3 working days following the date of mailing if sent by registered mail.

 Either Party may change the address to which notices are to be delivered or transmitted by giving the other Party written notice to this effect in the manner set forth herein.

10.7. If any conflict or inconsistency arises in the interpretation (or construction) of any provision of an agreement or deed attached as a schedule, exhibit or annex to this Agreement on the one hand and any provision of this Agreement on the other hand, the provision of this Agreement shall at all times prevail, unless the former document both clearly provides otherwise and expressly specifies which provision of this Agreement shall be prejudiced.

10.8. Save as otherwise provided in this Agreement, each Party shall pay the costs and expenses incurred by it in connection with the entering into this Agreement

Article 11 – Applicable Law and Jurisdiction

11.1. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with the Belgian law. No effect shall be given to any other choice of law or to any conflict-of-laws rules or provisions (Belgian, foreign or international) that would result in the application of the laws of any country other than Belgium.

11.2. Any disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be submitted to the exclusive jurisdiction of the __________ [judicial district] courts.

 [optional] [Any disputes arising out of or in relation with this Agreement shall be finally settled under the CEPANI Rules of Arbitration by one or more arbitrators in accordance with those Rules. The arbitral tribunal shall be composed of __________ [number] arbitrators. The seat of the arbitration shall be __________ [city]. The arbitration shall be conducted in __________ [language.]

Executed in __________ [place], on __________ [date], in two original copies, each party acknowledging receipt of one.

FOR AND ON BEHALF OF PARTY 1

______________________________ [name]

______________________________ [title]

______________________________ [date]

______________________________ [signature]

FOR AND ON BEHALF OF PARTY 2

______________________________ [name]

______________________________ [title]

______________________________ [date]

______________________________ [signature]

LIST OF ANNEXES

Annex I.  Description of the Business

Annex II.  Draft Act of Incorporation of JVC

Annex III.  Agreed Form of Asset Purchase Agreement