SERVICES AGREEMENT
This
SERVICES AGREEMENT (the "Agreement"), is entered into
as of July 22, 2009 (the "Effective Date") by and
between Adama Technologies
Corporation, a corporation incorporated under the laws of the State of
Delaware (“Recipient”),
and Adama Technologies (Israel)
Ltd., a company incorporated under the laws of the State of Israel
(“Provider”).
RECITALS
WHEREAS, Recipient desires,
from time to time, to engage Provider to provide services for the benefit of
Recipient; and
WHEREAS, Provider desires to
provide such services to Recipient;
NOW THEREFORE, the parties
agree as follows:
1. Services
1.1. Scope of Services. At
the request of Recipient, Provider will provide Recipient with business
management services, including, without limitation, on-going supervision,
management and business development of the Recipient's business activities as
well as any other services that will be requested by the Recipient (the “Services”). In rendering the
Services, Provider Personnel (defined below) shall act, among other duties, as
CEO of Recipient and as such shall have full power and authority to negotiate,
conclude, sign, execute or in any other way accept contracts or business
engagements in the name of or on behalf of Recipient and exercise discretion
with respect to the conduct of the business of Recipient.
1.2. The
Services will be provided by employees or contractors of Provider, which are to
be pre-approved by Recipient ("Provider Personnel"). As of
execution of this Agreement, the Services will be provided by Peled Barkai and
Xxxx Xxxxxx, who shall personally perform all Services. Recipient will be
entitled to replace the individuals providing the Services, with or without
cause, upon 7 days prior written notice to Provider.
2. Payments.
2.1. Direct Cost.
Recipient will pay Provider for all the direct costs (“Direct Costs”) that Provider
incurs in rendering the Services, including payments made to Provider Personnel;
travel; rent; office costs and similar items directly allocable to Provider’s
provision of the Services.
2.2. Profit Sharing. In
addition to payment of the Direct Costs, in consideration for the rendering of
the Services, Provider will be entitled to a share of Recipient’s profits at an
amount equal to 80% of Recipient’s profit (“Profit Share”). The Profit
Share will only be payable to Provider at the end of the fiscal year in which
profits were generated by Recipient or as otherwise will be agreed by the
parties.
2.3. Reporting and Payment
Terms.
(a) Provider
will invoice Recipient on a quarterly basis for the amount of Direct Costs due
and payable. Recipient will pay the Direct Costs no later than 90 calendar days
after receipt of the quarterly invoice. Late payments shall incur interest at
the minimum applicable rate required under applicable laws.
(b) Provider
will furnish Recipient, together with the applicable invoice, with a report
showing the components of cost comprising the Direct Costs under the applicable
invoice, together with such information related thereto reasonably requested by
Recipient.
2.4. At
the end of each fiscal year, during the term of this Agreement, Recipient shall
issue Provider a report, executed by an officer of Recipient, indicating the
aggregate profits generated by recipient in the past year and showing the
applicable amount payable to Provider as Profit share thereunder. The Profit
Share shall be due and payable within 4 months from the end of the fiscal year
with respect to which such payment is being made.
2.5. Withholding Taxes.
Recipient may withhold from payments due under this Agreement such taxes as are
required to be withheld under applicable law. If any tax is withheld by
Recipient, Recipient shall provide Provider with receipts or other evidence of
such withholding and payment to the appropriate tax authorities.
2.6. VAT Taxes. All
invoices from Provider shall include value added and similar taxes, if and to
the extent required by applicable law. The costs of such taxes shall be borne by
Provider and shall not be remitted by Recipient notwithstanding their required
inclusion in any invoice.
3. Intellectual
Property.
3.1. Ownership of Rights.
Any Proprietary Rights (as defined below), whether or not patentable or
registrable under copyright or similar laws, that are developed, invented,
improved, reduced to practice and/or conceived by Provider, Provider Personnel
or any of its employees or service providers through the provision of the
Services to the Recipient, are and will be the sole and exclusive property of
the Recipient.
3.2. Assignment of Rights.
To the extent applicable, Provider hereby assigns (the “Rights Assignment”) to
Recipient all rights, title and interest throughout the world in each invention
or improvement that results from the Services, and all related improvements,
inventions, formulae, ideas, processes, techniques, know-how and data, whether
or not patentable, made or conceived or reduced to practice or learned by
Provider on or after its organization, including any and all patent and patent
rights, copyrights, trade secret rights, and other rights in connection
therewith ("Proprietary
Rights"). The Rights Assignment includes an assignment of Provider’s
rights under any and all inventions assignment and non-disclosure agreements
executed with Provider Personnel and its employees, contractors, consultants and
agents. Provider undertakes to assist Recipient in every proper way to evidence
and perfect the Rights Assignment and to apply for and obtain, and from time to
time enforce, maintain, and defend the Proprietary Rights in any and all
countries that Recipient may designate. Provider will execute all documents that
Recipient may request for such purposes.
4. Confidentiality
4.1. Definition. “Confidential Information”
means any information disclosed by one party to the other party pursuant to this
Agreement in any form that is marked “Confidential,” “Company Secret,” or
disclosed under circumstances that reasonably indicate that the information is
confidential. Confidential Information may also include information disclosed
orally by one party to the other party pursuant to this Agreement under
circumstances that reasonably indicate that the information is confidential. All
of the rights to be assigned under the Rights Assignment are considered
Confidential Information of Recipient.
4.2. Non-Use;
Non-Disclosure. Each party agrees to (a) keep in confidence and
trust all of the other party’s Confidential Information received by it,
(b) not to use such Confidential Information other than as expressly
permitted under the terms of this Agreement or any other agreement between the
parties, (c) take all reasonable steps to prevent unauthorized disclosure
or use of the other party’s Confidential Information, and to prevent it from
falling into the public domain or the possession of unauthorized persons, and
(d) disclose the Confidential Information only to those persons who need
access to the Confidential Information for purposes of the party meeting and
carrying out its obligations hereunder and who have executed a confidentiality
agreement which protects the disclosing party’s Confidential
Information.
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4.3. Exceptions. For
purposes of this Agreement, the following information shall not be considered
Confidential Information: (a) information which is generally known to the
public, (b) information which has been disclosed by the disclosing party to
others without restriction, (c) information which a third party not under a
duty of confidentiality discloses to a party, or (d) information required to be
disclosed to, or pursuant to an order or request of, any Federal, state, local,
foreign or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority (including, any disclosure deemed necessary or appropriate to taxing
authorities).
5. Representations
and Undertakings.
5.1. Parties
Representations. Each of Recipient and Provider hereby represents and
warrants that it has the right to enter this Agreement, has the power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, and that the execution and delivery of, and the performance of its
respective obligations under this Agreement will not conflict with or result in
any breach of, or constitute a default under, any security agreement,
commitment, contract, or other agreement, instrument or undertaking to which it
is a party or by which any of its property is bound.
5.2. Governmental
Approvals. Provider shall take all necessary and proper action to obtain
all governmental approvals and licenses from the foreign exchange, tax and other
governmental authorities that may be required in order for Provider to enter
into this Agreement, to perform the Services to be performed by it hereunder,
and to receive the Service Fees.
5.3. Compliance with Laws.
In the exercise of their respective rights and the performance of their
respective obligations under this Agreement each party shall comply with all
applicable laws, regulations and governmental orders. Without limiting the
generality of the foregoing, each party shall obtain, and shall maintain in full
force and effect throughout the continuance of this Agreement, all licenses,
permits, authorizations, approvals and government filings and registrations
necessary or appropriate for the exercise of its rights and the performance of
its obligations hereunder.
5.4. Export Controls.
Without limiting the generality of Section 5.3 above, Provider shall comply and
obtain all required permits and consents under all applicable United States and
Israeli export control laws and regulations, including the United States Export
Administration Regulations and shall not export, re-export, transfer, divert or
disclose directly or indirectly, any products, intangible property or any direct
product thereof except as authorized under such export control laws and
regulations.
6. Term and
Termination
6.1. Term. The term of
this Agreement will commence on the Effective Date and will renew automatically
for one-year periods at each anniversary of the Effective Date unless terminated
earlier in accordance with this Section.
6.2. Termination for
Convenience. Either party may terminate this Agreement at any time by
providing 7 days prior written notice to the other party.
6.3. Termination in the Event of
Bankruptcy. This Agreement may be terminated by either party on notice
(i) upon the institution by the other party of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of debts,
(ii) upon the institution of such proceedings against the other party,
which are not dismissed or otherwise resolved in such party’s favor within sixty
days thereafter, (iii) upon the other party’s making a general assignment
for the benefit of creditors or (iv) upon the other party’s dissolution or
ceasing to do business in the normal course.
6.4. Return of Intangible
Property. Upon termination of this Agreement, Provider shall return to
Recipient within thirty days of said termination or expiration date all
Confidential Information of Recipient and other Recipient property in Provider’s
possession, and as of said termination or expiration date.
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6.5. Survival. Sections
3, 4, 5, 6, 7, and 8 shall survive termination of this Agreement for any reason
whatsoever.
7. Relationship of the
Parties
7.1. Subject
to the provisions of Section 1.1 above, neither party hereto shall have any
express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party.
7.2. The
parties hereby deny and waive any demand, claim and/or allegation that an
employment relationship of any kind has resulted from this Agreement or from the
rendering of the Services.
7.3. Provider
shall be solely responsible for the payment of all costs arising from the
employment or services rendered by Provider Personnel. In the event the
Recipient is demanded and/or obligated, to pay the Provider or any of Provider
Personnel, any amount, or give Provider or any of Provider Personnel or any
third party any right, deriving from the existence of employer-employee
relationship between Provider or any of Provider Personnel and the Recipient,
Provider shall indemnify the Recipient for any and all costs, liabilities and
expenses it may have in connection with such demand and/or obligation, including
the economical value of such right and including legal expenses.
8. General
Provisions
8.1. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or sent by
an internationally recognized overnight courier service, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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(a)
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if
to Recipient,
to:
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Adama
Technologies Corporation
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Address:
_______________
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Attention:
_________________
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Telephone
No.: _____________
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Facsimile
No.: ______________
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(b)
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if
to Provider, to:
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Adama
Technologies (Israel) Ltd.
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Address:
_______________
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Attention:
_________________
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Telephone
No.: _____________
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Facsimile
No.: ______________
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Notwithstanding
the foregoing, notices sent pursuant to this Section shall be effective
when sent.
8.2. No Implied-Waiver; Remedies
Cumulative. No failure on the part of any party to exercise and no delay
in exercising any right under this Agreement, or provided by statute or at law
or in equity or otherwise, shall impair, prejudice or constitute a waiver of any
such right, nor shall any partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
8.3. Severability. If any
provision hereof should be held invalid, illegal or unenforceable in any
jurisdiction, the parties shall negotiate in good faith a valid, legal and
enforceable substitute provision that most nearly reflects the original intent
of the parties and all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intentions of the parties hereto as nearly as may be
possible. Such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of such provision in any other
jurisdiction.
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8.4. Assignment. This
Agreement or any right or obligation hereunder, is not assignable, delegable or
otherwise transferable by a party, either voluntarily, by operation of law, or
otherwise, without the prior written consent of the other party (which consent
may be withheld in its sole discretion). Any such purported assignment or
transfer shall be null and void. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties and their
successors and assigns.
8.5. Governing Law and
Jurisdiction. This Agreement and the transactions contemplated hereby
shall be governed and construed under and in accordance with the laws of the
State of Israel, without giving effect to the principles of conflicts of laws.
Each of the parties to this Agreement agrees that any legal action or proceeding
with respect to this Agreement or for recognition and enforcement of any
judgment in respect hereof brought by the other party hereto shall only be
brought and determined in the competent courts of Tel-Aviv-Jaffa,
Israel.
The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that the parties shall be entitled to
specific performance of the terms hereof, this being in addition to any other
remedy to which they are entitled at law or in equity.
8.6. Entire Agreement; No Third
Party Beneficiaries. This Agreement: (a) constitutes the entire
agreements and supersedes all prior and contemporaneous agreements,
negotiations, arrangements and understandings (whether written, oral or
electronic) between the parties with respect to the subject matter hereof, and
(b) except for the parties to this Agreement, is not intended to confer upon any
person any rights or remedies.
8.7. Force
Majeure. Non-performance of any party shall be excused to the
extent that performance is rendered impossible by strike, fire, earthquake,
flood, governmental acts or orders or restrictions, failure of suppliers, or any
other reason where failure to perform is beyond the reasonable control of the
non-performing party.
8.8. Counterparts. This
Agreement may be executed in one or more counterparts (whether delivered by
facsimile or otherwise), each of which shall constitute one and the same
agreement and shall become effective when one or more counterparts have been
signed by each party and delivered to each of the other parties.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
| ADAMA TECHNOLOGIES CORPORATION | ADAMA TECHNOLOGIES (ISRAEL) LTD. |
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By:
/s/ Xxxxxx Xxxxx
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By:
/s/ Boaz Benrush
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Title:
President
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Title:
Director
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Date:
July 22, 2009
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Date:
July 22, 2009
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By:
/s/ Xxxx Bar-xxx Xxxxx
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Title:
Director
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Date:
July 22, 2009
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