Ex. 10.15
MANAGEMENT AGREEMENT
TTR AGREEMENT, made this 1st day of October, 1997 by and between ULTIMUS
LTD., an Israeli company ("Ultimus") and TTR TECHNOLOGIES LTD., an Israeli
company with offices at 0 Xxxxxxx Xxxxxx, Xxxx Xxxx 00000, Xxxxxx ("TTR").
W I T N E S S E T H
WHEREAS, Ultimus is engaged in the business of smart-card based advanced
electronic based consumer retail payment systems;
WHEREAS, TTR is enganged in the business of software protection;
WHEREAS, Ultimus desires that TTR manage, or provide for the management
of Ultimus's affairs, and TTR is willing, in the terms and conditions set forth
herein, to provide to Ultimus such TTR services.
NOW, THEREFORE, the parties hereto agree as follows:
1. Management of Daily Affairs. So long as this Agreement is in effect, TTR
shall provide for the management of the day-to-day affairs of Ultimus, in
accordance with the instructions from time to time of the Board of Directors of
Ultimus ("TTR Services"). Without limiting the generality of the foregoing, the
TTR Services shall include, but not be limited to,
(i) opening and managing a bank account(s) for the Company
(ii) overseeing administration of and providing Company's offices,
equipment and manpower;
(iii) overseeing administration of Company's research and development;
(iv) coordinating and overseeing administration of any professionals,
consultants or agents hired or retained by the Company;
(v) coordinating and overseeing the marketing and distribution of the
Company's products and its future business developments;
2. Except as otherwise provided for in this Agreement, TTR shall exercise its
powers in relation to the Company so as to ensure that:
(a) the Company carries on its affairs in a proper and efficient manner and
for its own benefit;
(b) the Company transacts all its business on a arms length basis;
(c) the Company shall not enter into any agreement or arrangement
restricting its competitive freedom;
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(d) all business of the Company, other than routine day to day business,
shall be undertaken and transacted as instructed by the Directors;
(e) keep the Directors fully informed as to all material developments
regarding its financial and business affairs;
(f) deliver to the Directors as promptly as practical financial or other
information as requested;
2. Compensation
2.1 For services rendered hereunder, TTR shall be entitled to such management
fee in monthly amounts as shall be agreed upon from time to time by the Parties
which shall not exceed more than $100,000 per year plus VAT.
2.2 The Company shall reimburse TTR for all actual costs and expenses incurred
by TTR in rendering the TTR Services hereunder in accordance with its general
corporate policy in this matter.
2.3 Payment of TTR fees and reimbursable costs and expenses shall be made only
against delivery by TTR to the Company of requisite tax receipts or other
appropriate documentation thereof.
2.4 Translations to Israeli currency shall be calculated on the basis of the
representative rate of exchange published by a daily newspaper in Israel on the
date of payment.
3. Term and Termination
3.1 This Agreement shall become effective on the date that it is signed
by both parties hereto and, unless terminated as provided below, shall continue
in full force and effect for a period of two (2) years from date of such
signature (the "Initial Term") and shall automatically be renewed for additional
one (1) year terms unless either part terminates this Agreement upon sixty (60)
days written notice prior to the end of any term or in accordance with sections
3.2 or 3.3 below.
3.2 Either Party shall be entitled to terminate this Agreement
forthwith, by written notice, should the other party fail to comply with its
obligations in this Agreement and does not remedy such non-compliance within
sixty (60) days after receipt of notice from the other party that it intends to
terminate this Agreement if such failure is not corrected.
3.3 Either party may terminate this Agreement forthwith, by notice, if
the other party is declared insolvent or bankrupt, or makes an assignment for
the benefit of creditors, or shall have a receiver or trustee appointed for its
business or property or is dissolved or liquidated or otherwise ceases business,
and such declaration or execution, or appointment is not canceled within forty
five (45) days.
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5 Proprietary Information
5.1 TTR acknowledges and agrees that the Company possesses and will continue to
possess information and technology that has been created discovered or
developed, or has otherwise become known to the Company in the field of smart
card technology, including without limitation, information and technology which
has been assigned or otherwise conveyed to the Company, which information or
technology has commercial value in the business in which the Company is engaged.
Such information, whether documentary, oral or computer generated, shall be
deemed to be and is referred to as "proprietary information", which, by way of
illustration but not limitation, shall include trade secrets, processes,
formulae, data and knowhow, improvements, inventions, techniques, products
(actual or planned), marketing plans, strategies, forecasts and customer lists.
5.1 Proprietary information shall be deemed to include any and all proprietary
information disclosed by or on behalf of the Company, irrespective of form but
excluding information that (i) shall have become a part of the public knowledge
except as a result of the breach of this Agreement by TTR; (ii) shall have been
received by TTR form a third party having no obligation to the Company; (iii)
reflects general skills and experience gained during TTR's engagement by the
Company; or (iv) reflects data and information generally known within the
industries or trades in which the Company competes.
5.3 TTR agrees that all proprietary information, patents and other rights in
connection therewith shall be the sole property of the Company and its assigns.
At all times, both during the engagement by the Company and after its
termination, TTR will keep in confidence and trust all proprietary information,
and TTR will not use or disclose any proprietary information or anything
relating to it without the written consent of the Company except as may be
necessary in the ordinary course or performing TTR's duties as Manager to the
Company.
5.4 TTR agrees to assume full responsibility for the proprietary information
disclosed to it and to take appropriate measures with any persons acting on its
behalf to ensure that such persons are bound by a like covenant of secrecy.
5.5 TTR's undertakings under this section shall remain in full force and effect
for two (2) years following the termination of this agreement or any renewal
thereof.
6. Warranty
TTR represents and warrants that on the date hereof it free to be engaged by the
Company upon the terms contained in this Agreement and that there are no
agreements or arrangements restricting full performance of TTR's duties
hereunder.
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7. Indemnity
The Company shall indemnify and hold TTR, its employees, agents, parent company
and subsidiaries harmless from all loss, damage and/or expenses (including
attorney's fees) arising out of any claims by third parties that arise as a
result of TTR carrying out its duties under this Agreement. TTR shall promptly
notify the Company in writing of such claim. TTR shall be entitled to
participate in the defense at its own cost in cooperation with the Company. The
Company shall vigorously defend against any such claim. The foregoing obligation
will not cover any claim solely resulting from an act or omission amounting to
gross negligence or criminal fraud, as determined by a court of law, by TTR.
8. Release
The Company does hereby fully and finally release, TTR, its oficers, directors,
employees, agents, counsellors, parent company and subsidiaries of any and all
claims, liabilities, demands, causes of action, koown or unknown, suspected or
unsuspected, of every kind and nature whatsoever, which now or hereafter may
exist, with respect to TTR's obligations under this Agreement, except for those
relating to claims, liabilities, demands and causes of action resulting from
gross negligence or criminal fraud, as determined by a court of law, by XXX.
0. Xxxxx Xxxxxxx
9.1 No liability shall result to any Party due to a delay in
performance caused by circumstances beyond the reasonable control of the Party
affected, including, but not limited to acts of God, flood, war, terrorism,
embargo, accident, and governmental laws, or request, or any ruling of a court
or tribunal;
9.2 Each Party affected by an event of force majeure shall (a) promptly
notify the other Party hereto of the expected duration thereof, and its
anticipated effect on the Party effected in terms of the performance required
hereunder; and (b) make reasonable efforts to remedy any such event of force
majeure. Performance that is delayed by any event of force majeure shall be
extended for such time as the event shall continue.
10. Miscellaneous
10.1 Severability:
Any term or provision of this Agreement which is found by a court, tribunal or
arbitration panel to be invalid or unenforceable shall be ineffective to the
extent of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms or provisions of this Agreement or affecting
the validity or enforceability of any of the other terms or provisions of this
Agreement. In the event that any term or provision of this Agreement is found to
be unenforceable or ineffective, then the reviewing court, tribunal or
arbitration panel may modify such term or provision to the extent necessary to
render it enforceable and the parties agree to be bound by and perform this
Agreement as modified.
10.2 Entire Agreement:
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This Agreement contains the full and complete understanding between the Parties
and supersedes all prior understandings, whether written or oral, pertaining to
the subject matter hereof (including the Memorandum of Understanding dated
November 4, 1996 which the parties agree shall not be referred to in any
subsequent dispute). The Parties expressly acknowledge that any representation,
promise or inducement by any Party to any other Party that is not embodied in
this Agreement is not part of this Agreement; and they agree that no party shall
be bound or liable for any such alleged representation, promise, or inducement
not set forth herein.
10.3 Assignment:
Except as otherwise provided in this Agreement the rights and obligations of TTR
shall not be assignable without the prior written consent of the Company
provided, however that TTR shall be entitled to assign this Agreement to its
parent company or a corporation in which it owns not less than 51% of the total
issued and outstanding voting shares, upon notice to the Company.
10.4 Amendments and Waivers
This Agreement cannot be amended, modified or altered except by written
instrument signed by the Parties hereto. In the event that any Party seeks a
waiver of any part or portion of this Agreement, such waiver must be by written
instrument signed by the Party waiving compliance. The failure of any Party at
any time to require performance of any Provision in this Agreement shall in no
manner affect its right at a later time to enforce the same. And, no waiver by
either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise in any or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such breach or a waiver
of the breach of any other term or covenant contained in this Agreement.
10.5 Notices
Unless otherwise provided, any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery to
the other party to be notified or five (5) business days after deposit in the
mail by prepaid registered mail or facsimile transmission (with dispatch and
receipt confirmed) and addressed to the party to be notified at the address set
forth in Preamble above or at such other address as such party may designate by
written notice to the other party from time to time.
10.6 Headings
The headings herein are for reference only and shall not affect the construction
of this Agreement.
10.7 Successors & Assigns
The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
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10.8 Counterparts & Execution
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. Execution of this Agreement shall be valid if served on the
other party by facsimile and such other party confirms in writing receipt and
acceptance of service.
10.9 Governing Law; Forum
This Agreement, its validity, construction and effect shall be governed by and
construed under the laws of the State of Israel. The appropriate court sitting
in Tel Aviv-Jaffa shall have sole and exclusive jurisdiction and the parties
hereby consent to such jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly signed on
the date stated above.
Ultimus Ltd. TTR Technologies Ltd.
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