EXHIBIT 10.11
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Milan, June 15th, 2006
Dear Xx. Xx Xxxxxxxx,
I am writing to summarize the content
and scope of the agreement (“Agreement”) between Symmetry Holdings Inc. (“Symmetry”) and Xxxx
Xxx (“Ilut”) for the performance by Ilut of the following services for Symmetry
(the “Services”):
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o |
Development of a
throughput-based analysis software application tool (to be named “TPAT”)
as described in more detail in Attachment A annexed hereto, that
provides throughput-based financial analysis, including full buyout and return on
investment analysis and other key decision support processes for screening acquisition
targets; |
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o |
The
design of a company logo and the realization of a web site xxx.xxxxxxxxxxxxxxxx.xxx to
complement Symmetry’s marketing and communication activities; and |
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o |
Printing
of business cards and stationery for Symmetry Holdings. |
Ilut will provide the above mentioned
outputs (which, for the sake of clarity, will, among other things, form a part of the
“Work Product” as defined below) by the end of September 2006; it is understood
that during the months of October and November extensive tests will be carried out on the
TPAT to validate its usability and functionality. The specs of TPAT are the ones we
defined together with our software specialists and specified in Attachment A. Ilut agrees
that the TPAT will function as intended and will meet the specifications outlined in
Attachment A. To the extent the Work Product fail to meet any specifications, Ilut shall
correct the defects and deficiencies free of charge.
Ilut’s fee for the Services is
$57,000 to be paid as follows:
$35,000 on September 1st 2006
$22,000 on October 1st 2006
Ilut agrees that all inventions,
improvements, developments, technical information, skill and know-how, patentable or
unpatentable, which Ilut makes, discovers or develops for, in the course of, or as a
result of, the performance of the Services or pursuant to this Agreement, including the
three outputs listed above, (individually and collectively referred to as “Work
Product”) shall be, upon
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creation, the exclusive property of Symmetry (or its
designated affiliate). All rights therein, including any patents, copyrights, trademarks
and trade secret rights, and the rights to register or apply therefor, in or relating to
Work Product (including all derivative works and improvements thereto), shall likewise be
the exclusive property of Symmetry or such affiliate. All Work Product comprising
copyrightable subject matter is agreed to be work made for hire pursuant to the Copyright
Act of 1976 as from time to time amended. To the extent any such Work Product is deemed
other than a work made for hire, Ilut shall assign, and hereby assigns, in perpetuity, all
rights it has or may have, in the Work Product (including all derivative works and
improvements thereto), to Symmetry. Ilut shall, promptly at the request
of Symmetry, execute any and all documentation reasonably requested by Symmetry to assign,
evidence, perfect, register and enforce Symmetry’s rights in and ownership of all
patents, copyrights and other intellectual property relating to the Work Product in any
and all countries, including without limitation, the execution of additional instruments
of conveyance and assisting Symmetry with applications for patents, copyrights or other
intellectual property registrations.
As part of performing the Services,
Ilut may utilize certain preexisting proprietary software, methodologies, tools
specifications or other materials which may have been developed by or licensed to Ilut, in
each case independent and separate of this Agreement and without reference to
Symmetry’s proprietary rights or confidential information (collectively,
“Ilut Proprietary Rights”). Ilut hereby grants to Symmetry and its
affiliates, a fully paid-up, royalty-free, worldwide, non-exclusive and irrevocable
license to use the Ilut Proprietary Rights as part of the Services or any Work Product.
Ilut represents, warrants and
covenants to Symmetry that the Work Product and all Services do not and will not infringe
or misappropriate the patent, copyright, trademark, trade secret, or other intellectual
property rights of any third party.
Symmetry will have no obligation or
liability with respect to or arising out of its receipt of and/or use and/or disclosure of
any and all Work Product or any other materials, tools, processes, inventions, technical
information, know-how, data, drawings, documents, prototypes, or models which Ilut at any
time discloses or furnishes to Symmetry in connection with the Services covered by this
Agreement. Additionally, Ilut shall defend, indemnify and hold harmless Symmetry and its
directors, officers, affiliates, customers, employees and agents from and against any
suit, proceeding, claim, costs, losses and damages (including reasonable attorneys’
fees) relating to any actual or alleged claim of infringement or misappropriation of any
intellectual property right or a trade secret relating to any
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Work Product developed or delivered
by Ilut or that relates to the performance of Services by Ilut or any materials supplied
or used by Ilut.
Ilut shall not disclose, duplicate,
copy or use for any purpose other than the performance of this Agreement, and shall treat
as confidential and proprietary to Symmetry, all information which relates to
Symmetry’s business affairs, including, all Work Product. The obligation to treat any
information as proprietary and confidential shall not apply to information which (i) was
in the public domain at the time it was disclosed or has come into the public domain
through no act or omission of Ilut or its employees; (ii) was independently developed by
Ilut without use of any confidential information of Symmetry and outside the scope of any
agreement with Symmetry; or (iii) was obtained rightfully by Ilut from a third party not
bound by an obligation of confidentiality to Symmetry.
Ilut acknowledges that all amounts
held at any time in the trust account established by Symmetry in connection with its
initial public offering have been specifically designated for purposes other than
satisfying any obligation now or at any time in the future owing to Ilut. Ilut
further acknowledges that it is not providing Services to Symmetry with the expectation
that such monies held in the trust account will be used to pay Ilut. Accordingly,
Ilut renounces and waives any right, interest or claim it now has or may ever have in law
or in equity to any monies held in the Symmetry trust account.
We agree to consider this letter as
an engagement for our collaboration.
SYMMETRY HOLDINGS INC.
/s Xxxxxxx Xx Xxxxxxxx
Xxxxxxx Xx Xxxxxxxx
Chief Executive Officer |
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ILUT Srl
/s Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
President |
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ATTACHMENT A
The Throughput-based Assessment Tool
(TPAT) will include five main components. They are:
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c. |
Balance
Sheet acquisition analysis |
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2. |
Summary
Financial Analysis |
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a. |
Summary
Throughput based Profit Statement (Current year plus 5 years) |
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b. |
Summary
Balance Sheet (Current year plus 5 years) |
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c. |
GAAP
Income Statement (Historical 3 years, Current + 5 years) |
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d. |
GAAP
Cash Flow Statement (Historical 3 years, Current + 5 years) |
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3. |
Detailed
Throughput-based profit modeling. Statement should role up: |
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d. |
Operating
Expense (each category should categorize between labor and non-labor) |
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1. |
Research
and Development |
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1. |
Capital
expenditures for equipment |
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2. |
Expenditures/projects
for improvement/change activities |
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e. |
Free Cash Flow available for debt reduction/distribution |
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4. |
Detailed
input for each of a. – d. above |
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a. |
Sales
– input by major product category units and pricing by major segment,
round out with all other revenue |
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b. |
TVC
– input for top 10-15 components of TVC by major product category (same as
above), round out with all other TVC |
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c. |
Constraint
Utilization Analysis, by facility – estimate of optimal Throughput for
forward assumptions |
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d. |
Operating
Expense (Top 5 components for each category, Labor = next 4) |
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5. |
Other
Supporting Analysis |
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a. |
Identified
Market Segments |
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b. |
Top
20 Customers per segment |
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d. |
Historical
Market Size and share (last ten years) |
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e. |
Market
Outlook, by region, five years |
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f. |
Technology
Risk and IP Summary |
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g. |
Jurisdictional
Risk Summary |
