EXHIBIT 10.13
WORLDWIDE INTERCOMPANY MANAGEMENT SERVICES
AND TECHNICAL SUPPORT AGREEMENT
THIS WORLDWIDE INTERCOMPANY MANAGEMENT SERVICES AGREEMENT (the "Agreement") is
entered into as of the first day of August 22, 1996, by and between Top Tier
Israel (1992) Ltd., a corporation duly organized and existing under the laws of
Israel, with its principal office located at 0 Xxxxxxxxxxx Xxxxxx, X.X. Xxx
0000, 0xx Xxxxx, Xx'xxxxx, Xxxxxx 00000 (hereinafter called "TTI"), and TopTier
Software, Inc., a corporation duly organized and existing under the laws of
Delaware, with its principal office located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxx
000 Xxx Xxxx, Xxxxxxxxxx (hereinafter called "TopTier").
WHEREAS TTI is a software engineering company with expertise in developing
complex data navigation and acquisition software; and
WHEREAS TopTier is a distribution company with expertise in marketing,
sales, strategic planning and management, both within and without the United
States; and
WHEREAS TTI desires to focus on its core engineering competencies; and
WHEREAS TopTier desires to provide management services to TTI in
connection with TopTier's activities as a distributor of TTI software;
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
(1) TopTier shall establish and maintain throughout the period this Agreement
is effective, an office in California, which office shall be registered
and operated in accordance with the laws and administrative regulations of
California and of the U.S., and shall be comprised of such facilities and
personnel as TTI from time to time may reasonably request (hereinafter
called the "U.S. Office").
(2) Throughout the period this Agreement is effective, TopTier shall cause the
U.S. office to, and the U.S. office shall:
(a) Keep TTI advised and informed regarding all matters worldwide which
may be of reasonable interest or concern to TTI in connection with the
carrying on of its business;
(b) Perform such services as may reasonably be necessary, in the opinion
of TTI, to maintain and promote the goodwill of TTI worldwide;
(c) Investigate any new developments regarding the use worldwide of
products which from time to time are manufactured or sold or are
susceptible of being manufactured or sold by TTI;
(d) Gather and provide to TTI information, including financial
information, concerning prospective customers of TTI worldwide, and
market conditions generally;
(e) Assist TTI in managing and developing the marketing and distribution
of TTI products, including but not limited to: product marketing
research and planning, marketing campaign planning and execution,
planning and execution of advertising, informational and promotional
activities, recruitment and management of marketing partners;
(f) Assist TTI in developing and implementing the strategic plan of TTI;
(g) Provide TTI with such legal, accounting, financial, human resources
and other managerial services as TTI may from time to time reasonably
request;
(h) Provide TTI with such reports concerning the above matters as may from
time to time be reasonably required by TTI;
(i) Assist TTI with technical support and maintenance services related to
maintenance services provided by TopTier. "Services" shall mean and
include: (a) providing comprehensive advice, information and other
technical support regarding the specifications, capabilities,
performance, operations, application, installation and maintenance of
the Products ("Technical Assistance"); (b) engaging in customer
liaison and marketing support activities with respect to the Products;
and (c) providing other support services reasonably requested by TTI.
"Service/Maintenance Contract/Agreement" shall mean the written
contract, purchase order or agreement pursuant to which a Customer
contracts for the service and/or maintenance of the Products over a
specified period of time.
(j) Without limiting the generality of the foregoing, act on behalf of TTI
in a liaison capacity and perform administrative and technical support
and such other reasonable services worldwide as requested by TTI from
time to time in connections with such projects, investigations and
other business matters as may be designated by TTI from time to time;
(3) TopTier shall not have any power or authority whatsoever to negotiate or
conclude sales agreements or to sell products or services on behalf of
TTI, but shall forthwith refer to TTI all inquires which TopTier may from
time to time receive regarding the purchase of any services of TTI; and
TopTier shall not have any power or authority whatsoever to negotiate,
conclude or accept any contracts or agreements of any kind whatsoever on
behalf of TTI, or in any other way legally bind or obligate TTI in any way
whatsoever. Accordingly, in the performance of the services to be
rendered hereunder, TopTier at all times shall act as a principal and an
independent contractor and not in any respect as an agent, attorney,
employee or representative of TTI; and TopTier at all times shall refrain
from declaring or representing to any third party that TopTier is in any
respect an agent, attorney, employee or representative of TTI. TopTier and
TTI also acknowledge and agree that nothing in this Agreement shall be
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construed to create a partnership, joint venture, or any other
relationship between the parties which would entitle either party to
receive a share of the other party's earnings or profits.
(4) Unless otherwise agreed to by TopTier, throughout the period this
Agreement is effective, TTI shall, and TTI shall cause the U.S. Office to,
and the U.S. Office shall, refrain from performing any services of the
kind described in Paragraph (2) hereof for any other supplier of products
or services which may from time to time be competitive with the products
or services of TopTier.
(5) In consideration for the services to be performed by TopTier pursuant to
this Agreement, TTI shall pay to TopTier, throughout the period this
Agreement is effective, in the manner provided for in Paragraph (6)
hereof, a monthly service fee calculated on the following basis:
(a) An amount equal to all costs and expenses of TopTier, including,
without limitation, overhead costs and expenses and the salaries,
wages and employee benefit payments paid in respect of the manager and
other employees of TopTier, reasonably and properly incurred by
TopTier in the performance of the services to be provided by it
hereunder (and TopTier will convert all costs and expenses incurred
and paid in local currency into U.S. dollars by using the exchange
rate prevailing at the end of each calendar month and as reported as
the New York trading rates in the Wall Street Journal); plus
(b) An amount by way of profit which shall be such amount as may from time
to time be mutually agreed upon by TopTier and TTI and which, until
otherwise so agreed upon, shall be an amount equal to five percent of
the amounts to be paid to TopTier by TopTier pursuant to Paragraph
(5)(a) hereof.
(6) (a) At the end of each calendar month throughout the period this Agreement
is effective, TopTier shall cause to be prepared, in form reasonably
satisfactory to TTI, and send to TTI a statement setting forth (i) an
itemization of the costs and expenses referred to in Paragraph (5)(a)
hereof which were actually incurred by TopTier during the calendar
month so ending, and (ii) the amount of the monthly service fee due
TopTier, calculated with respect to such calendar month as provided in
Paragraph (5) hereof.
(b) TTI shall pay to TopTier, within thirty days after receipt by TTI of
such statement, the amount of the monthly service fee payable to
TopTier with respect to the calendar month covered by such statement.
(c) All payments to be made hereunder by TTI to TopTier shall be remitted
by TTI to the headquarters office of TopTier, provided, however, that
if TopTier requests TTI to remit any of such payments or any portion
thereof directly to another office of TopTier, TTI shall comply with
such requests to the extent practicable under Israel's foreign
exchange regulations then applicable.
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(d) TopTier shall at all times cause proper records and books of account
to be kept with respect to the costs and expenses referred to in
Paragraph (5)(a) hereof, and such records and books of account shall
be available to TTI for review at such times as TTI may reasonably
request during the period this Agreement is effective. TopTier agrees
to keep all information disclosed by such review confidential and
shall disclose that information only to those employees of TopTier
who have a need to know.
(7) TopTier shall cause all necessary and proper action to be taken in order
to obtain all governmental approvals and licenses from the Israel foreign
exchange, tax and other governmental authorities which may be required in
order for TopTier to perform the services to be performed by them
hereunder and to receive the service fee from TTI provided for in
Paragraph (5) hereof.
(8) TopTier shall cause to be paid all taxes and other duties or assessments
which may be levied by any governmental authority with respect to the
services to be performed by TopTier pursuant to this Agreement and/or on
the service fees accruing and payable to TopTier pursuant to this
Agreement.
(9) This Agreement shall become effective as of the date first above written,
and shall thereafter continue to be and remain effective until terminated
as provided in Paragraph (10) hereof.
(10) This Agreement may be terminated by either of the parties hereto by
giving written notice to the other party of such termination not less
than thirty days prior to the date on which such termination is to become
effective; provided, however, that this Agreement shall be automatically
terminated in the event that either party (a) becomes subject or party to
proceedings in bankruptcy, winding-up or liquidation or to litigation
which may lead to bankruptcy, winding-up or liquidation, (b) makes an
assignment for the benefit of its creditors, or (c) contravenes any one
or more of the provisions hereof.
In addition, TTI may elect to terminate this agreement immediately, upon
written notice to TopTier if TopTier engages in activities which, in the
opinion of TTI, are detrimental to the interests of TTI.
(11) Neither this Agreement nor any of the respective rights or obligations of
the parties hereto shall be assignable in whole or in part without the
consent in writing of the other party hereto, and such consent may be
withheld wholly within the discretion of such other party.
(12) This Agreement shall be governed by and interpreted and construed in
accordance with the laws of the State of California of the United States
of America.
(13) Any controversy or claim arising out of or relating to this Agreement or
the breach thereof, shall be decided solely by arbitration in accordance
with the Commercial Rules of the American Arbitration Association then in
effect. The site of the
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arbitration shall be San Francisco, California. The initiating party
shall indicate whether one or three arbitrators shall be used.
Arbitrators shall be selected from the panels maintained by the American
Arbitration Association ("AAA") as provided by the rules of the AAA.
Judgment upon the award rendered may be entered in any court having
jurisdiction thereof.
(14) This Agreement, including any attachments, constitutes the final
expression of the understanding and agreement between the parties with
respect to the subject matter hereof, is intended as a complete and
exclusive statement of the terms of the parties' agreement, supersedes
and cancels all previous agreements and understandings, either oral or in
writing, between the parties to this Agreement, and is not subject to or
entered into on the basis of any oral or written terms or representations
other than those contained herein. Any modification or amendment of the
terms and conditions of this Agreement will only be binding upon the
parties if contained in writing and signed by or on behalf of both
parties.
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of the
date first above written.
TopTier Software, Inc.
/s/ Xxxx Xxxxxx
______________________
Top Tier Israel
/s/ X. Xxxxxx
______________________
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