EXHIBIT 10.14
*CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
AGREEMENT
Made this 4th day of May 2005
BETWEEN: XXXXXXX.XXX.XXX
of 000 Xxxxxx Xx. Xxxxxxx, xxx xxxxxx, XXX
(hereinafter referred to as "DTGN")
AND: X. XXXXXXX & CO. WORKS LTD
of 22 Shechterman, Netanya
(hereinafter referred to as "Xxxxxxx")
WHEREAS DTGN is the proprietor of the exclusive rights in the
product described in appendix "A" hereto (hereinafter
referred to as "the product");
AND WHEREAS Xxxxxxx has ability and experience in marketing products in
the motor vehicle industries sphere and it is able to market
and distribute the product in Israel at a professional level;
AND WHEREAS the parties wish to cooperate as provided herein with regard
to marketing the product in Israel;
THE PARTIES HAVE ACCORDINGLY AGREED AS FOLLOWS:
1. The recitals and apendixes to this agreement constitute an integral part
hereof.
2. DTGN hereby appoints Xxxxxxx the product's exclusive marketer in Israel,
subject to Xxxxxxx complying with the sales targets specified in this
agreement and the other terms and conditions hereof. DTGN hereby
undertakes not to directly and/or indirectly sell the product to others in
Israel.
It is hereby agreed by both parties that in the event that DTGN refers
customers to Xxxxxxx for the purpose of making a transaction at a price
agreed upon in advance by Xxxxxxx and it will be necessary to pay
commissions to intermediaries, such commissions shall be borne by Xxxxxxx.
3. This agreement shall only apply to the State of Israel. Xxxxxxx shall
refrain from selling and/or marketing the product outside Israel in any
form or manner, directly and or/indirectly, without obtaining written
approval from DTGN. Xxxxxxx shall refrain from selling the product to a
third party knowing that the third party will sell the product outside
Israel.
4. This agreement is made for a term of two years from the date of the
signing hereof and Xxxxxxx is hereby given an option to extend the term of
the agreement for a further year on each occasion, up to five years. A
condition precedent for exercising any option is that Xxxxxxx shall in
aggregate have complied with the sales targets of the first two years and
thereafter with the annual sales targets that shall be specified below.
The extension of the validity of the agreement, subject to the aforegoing,
shall be automatic, unless Xxxxxxx gives prior written of 60 days of its
wish not to extend it. In the event that written notice is given as
aforesaid, DTGN shall be entitled to sell and/market the product, other
than in accordance with this agreement, in any manner that DTGN deems
appropriate, but not prior to the termination hereof.
5. The parties hereby set sales targets and only upon the fulfilment thereof
and subject to clause 4 above shall Xxxxxxx have an exclusive marketing
right for the product in Israel: *
The provisions of this clause relating to quarterly sales shall apply
mutatis mutandis in each and every year.
_______________________
* Omitted pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
In the event that Xxxxxxx does not comply with the sales targets as
provided in this clause and in clause 4 above, DTGN shall be entitled to
terminate the validity of the agreement, without Xxxxxxx having any claims
and/or complaints of whatsoever description with regard to the very
termination of the agreement.
In addition, Xxxxxxx shall cease being exclusive marketer and distributor
of the product such that DTGN shall be entitled to market the product in
any manner, in its sole discretion.
6. Each year Xxxxxxx shall present the sales plan for the coming year to DTGN
for approval.
7. For the purpose of marketing the product, Xxxxxxx shall activate all the
marketing channels that appear to it to be appropriate.
8. Xxxxxxx undertakes to present a marketing, advertising and public
relations plan for penetrating the product during the next 12 months -
including an activity and manpower staffing budget for such purpose.
9. Xxxxxxx warrants that the goodwill that shall be created for the product
and for DTGN in consequence of its operations is DTGN's exclusive
property.
10. It is warranted that employee-employer relations shall not apply between
Xxxxxxx and/or its employees and/or its agents and/or servants and DTGN.
In the event that any of the aforegoing file an action against [Xxxxxxx]
on a ground as aforesaid, Xxxxxxx shall indemnify and compensate DTGN,
including reasonable trial costs.
11. The product's warranty: DTGN shall give a 36 month warranty for the
product and Xxxxxxx shall give this warranty to its customers (back to
back), and DTGN shall send Xxxxxxx a new product against any warrantable
product. For such purpose Xxxxxxx shall print a warranty certificate that
shall be approved in writing by DTGN.
12. The provisions of this agreement do not create agency relations between
the parties hereto. It is expressed that Xxxxxxx shall not be entitled to
howsoever bind DTGN, unless DTGN does not comply with its obligations
pursuant hereto.
13. Schnapps shall refrain from howoever infringing DTGN's intellectual
property rights in the product. Xxxxxxx shall sign an undertaking to
maintain confidentiality and have its employees sign an undertaking, as
set forth in the annexed undertaking marked "B".
14. Xxxxxxx undertakes to purchase the products from DTGN at the payment times
[sic] and prices specified in the price list annexed hereto as appendix
"C".* The price list may be altered during the term of this agreement, in
coordination with Xxxxxxx and on prior notice of 90 days. A new price list
that shall be issued by DTGN shall be deemed as replacing the price list
appendix "C"* hereto.
15. Throughout the validity of this agreement and for 12 months after its
validity, for whatsoever reason, Xxxxxxx shall refrain from manufacturing
and/or marketing and/or distributing a product that competes with the
product.
16. DTGN undertakes to make available to Xxxxxxx the relevant professional
material for the technical training of Xxxxxxx'x sales personnel who shall
engage in selling the product.
17. DTGN undertakes not to approach other marketers for the purpose of
marketing the product throughout the term of the agreement. In the event
that companies or persons from Israel approach DTGN with regard to the
marketing and/or purchase of the product in the State of Israel, DTGN
shall refer such entities to Xxxxxxx.
18. DTGN shall state Xxxxxxx'x name in its advertisements as exclusive
marketer of the product in Israel, for so long as this agreement is in
force - and to an extent in accordance with DTGN's discretion.
19. Miscellaneous The parties' addresses are as set forth in the heading to
this agreement. A notice shall be treated as having been received if sent
by registered post to one of the said address 72 hours after the dispatch
thereof.
20. This agreement can only be changed and/or amended if signed by the
parties.
21. The parties determine that the courts in the City of Tel Aviv shall have
exclusive jurisdiction for the purposes of this agreement.
_______________________
* Omitted pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
AS WITNESS THE HANDS OF THE PARTIES:
(Signature) (Signature)
illegible illegible
DTGN X. Xxxxxxx & Co. Works Ltd
I the undersigned, Adv. Xxxxxx Xxx certify that this document was signed by the
persons empowered to sign on Xxxxxxx'x behalf and that all the statutory
resolutions for Xxxxxxx entering into this agreement were passed.
/s/ Xxxxxx Xxx
EXHIBIT A
THE PRODUCT
Battery Brain Product
EXHIBIT B
CONFIDENTIALITY UNDERTAKING
1. Confidential Information. "Confidential Information" means all items,
materials and information which belong to DTGN and are not generally known to
the public, or which have been confidentially provided to Recipient.
Confidential Information includes, but is not limited to, this Agreement and the
terms hereof, pricing information and policies, information concerning: trade
secrets (as defined by applicable law); computer programs (code); software;
research and development projects and materials; methods of operation; technical
information; processes; formulas; compositions; systems; techniques; non-public
know-how of DTGN or its customers; customer account information, lists and data;
estimating procedures; sources of supplies or materials; marketing plans or
strategies; the existence and contents of agreements; financial information,
data, statements or accounts; and all documentation, reports and data (recorded
in any form) relating to the foregoing.
2. Restricted Use of Confidential Information.
(a) Generally. Recipient agrees that the Confidential Information (1)
shall be kept in the strictest of confidence by Recipient and Recipient's
employees; (2) shall be used only in connection with the performance of its
obligations under the Distributorship Agreement, and shall not at any time be
used by Recipient, directly or indirectly, in any other fashion, either for its
own account or the account of a third party; and (3) without limiting the
foregoing, shall not be disclosed by Recipient or Recipient's employees,
directly or indirectly, to any person (including current or prospective
financing sources) except with the specific prior written consent of DTGN or
except as expressly otherwise permitted by this Undertaking.
(b) Disclosure to Representatives. Recipient may disclose Confidential
Information to only those of Recipient's employees who (a) require such material
for the purpose of Recipient's performance of its obligations under the
Distributorship Agreement; (b) are informed by Recipient of the confidential
nature of the Confidential Information and the obligations of this Undertaking;
and (c) execute and deliver to Recipient a copy of this Undertaking, agreeing to
be bound by the terms herein. Recipient also agrees to be responsible for
enforcing this letter agreement as to Recipient's employees and to take such
action, legal or otherwise, to the extent necessary to cause them to comply with
this letter agreement and thereby prevent any disclosure of the Confidential
Information by any of Recipient's employees (including all actions that
Recipient would take to protect its own trade secrets and confidential
information).
EXHIBIT C
DISTRIBUTOR PRICE LIST*
_______________________
* Omitted pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
