Exhibit 10.43
May 17, 1999
Xx. Xxxx Xxxxxxxxxx
President and COO
Symbol Technologies, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-1300
Dear Tomo:
This letter expresses our understanding regarding the basis of an ongoing
relationship between Symbol Technologies, Inc. ("Symbol") and The Tracker
Corporation of America, Inc. and any current and future affiliates thereof
("hereinafter referred to as "Tracker"), to wit:
1. Tracker desires to use Symbol's bar code products and technology on
an exclusive basis.
2. Symbol desires to assist Tracker to market and sell systems,
utilizing exclusively Symbol's bar code technology (the "Systems").
3. Symbol agrees to extend for a period of two years following execution of
this letter Tracker's exclusivity rights for the particular application, as
described in Xx. Xxxx Xxxxxxxxxx'x letter of September 30, 1993 (attached),
provided Tracker maintains an annual minimum volume purchases from Symbol of
5000 laser scanner units, having a purchase price effect of, or greater than,
ten million dollars ($10,000,000).
4. Symbol will offer performance guaranty as described in Section 5
below, to potential customers of Tracker, approved by Symbol from time to time
on a case by case basis. This performance guaranty will be granted to the
respective customer, upon Tracker's issuance and Symbol's acceptance of a
Purchase Order for Symbol's products, reflecting the customer's corresponding
order from Tracker.
5. The performance guaranty will provide that if any proceeding in bankruptcy
or in reorganization, or for the appointment of a receiver or trustee shall be
instituted against Tracker, and such proceeding is not dismissed within sixty
(60) days of the date filed, and Tracker is unable to fulfill its warranty and
support obligations to its customers as a result thereof, Symbol will do the
following:
a. Assume Tracker's limited warranty obligations to the respective
customer(s) regarding Symbol products and only Symbol products, to the extent
corresponding to the limited warranty provided to Tracker by Symbol for the
particular products.
b. Assume that portion of Tracker's obligations, representing post warranty
support of Symbol's products and only Symbol products, under service contracts
Tracker enters into with the respective customer(s), provided the service fees
have not been prepaid and are payable to Symbol on a monthly basis for the
remainder of the term of such service contracts.
6. Symbol will designate support personnel (as it deems appropriate) to
familiarize itself with the Systems (technologies, products and mode of
operation) and provide Tracker with pre sale technical support (as deemed
appropriate by Symbol) to assist Tracker with the attainment of potentially
large orders.
7. As a collateral for Symbol's undertaking hereunder, Tracker will provide
Symbol with the following:
a. Specific assignments of its rights to receive support fees under
contract(s) with each the respective customer(s).
b. Tracker's business / trade relational database, updated on a quarterly
basis.
c. The System's software source code and any updates and enhancements
thereto, will be placed with an independent escrow agent concurrently with the
placement of the first Purchase Order with Symbol or when available,
respectively.
If you are in agreement with the terms of this letter, please indicate by
signing below.
Sincerely yours,
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx,
Chairman and CEO
AGREED TO this 18th day of
May, 1999.
SYMBOL TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
President and COO
