Exhibit 3(15)
DYNAMIC DIGITAL DEPTH AUSTRALIA PTY LTD
(ACN 060 154 949)
("the Company")
- and -
AiCube Co LTD
("the Consultant")
- and -
▇▇▇▇ ▇▇▇▇▇▇▇▇
("KF")
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CONSULTANCY AGREEMENT
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Solomon Brothers
Solicitors
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▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Tel: ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇
Ref: PFF/6489680
CONSULTANCY AGREEMENT
THIS AGREEMENT is made the 14 day of June 1999
BETWEEN:
DYNAMIC DIGITAL DEPTH AUSTRALIA PTY LTD (ACN 060 154 949) a company incorporated
in Western Australia of ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ in
the State of Western Australia (hereinafter referred to as "the Company") of the
first part
- and -
AiCube Co LTD of 5F Soei Building, 2-12-11 Minato ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇
("the Consultant") of the second part
- and -
▇▇▇▇ ▇▇▇▇▇▇▇▇ of 5F Soei Building, 2-12-11 Minato ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇,
▇▇▇▇▇ CKF") of the third part
RECITALS:
A. The Company carries on the business of research, development, marketing
and licensing of innovative technology for 3D display systems, 2D - 3D
conversion and transmission systems and related technologies ("the 3D
Systems") (such business is herein referred to as "the Business") and
possesses intellectual property relating to the 3D Systems and to the
inventions the subject of the patent applications listed in the
schedule ("the Patents") and that intellectual property together with
each improvement addition or alteration thereto of any kind and all
parts, attachments, accessories and related technology owned by the
Company is hereinafter referred to as "the Technology".
B The Company carries on or proposes to carry on the Business in
countries including Japan.
C. The Consultant has the ability to provide to the Company the Specified
Services in Japan.
D. The Company wishes to engage the Consultant on the terms specified in
this Agreement including provision by the Consultant of the services of
KF.
NOW THIS DEED WITNESSETH as follows:
1. INTERPRETATION
1.1 In this Agreement unless a contrary intention appears or the
context or subject matter otherwise requires:
"writing" includes typewriting, printing, lithography, photography
and other modes of representing or reproducing words in a visible
form and "written" has a corresponding meaning.
1.2 A reference in this Agreement to a party includes a reference to a
party's successors and permitted assigns.
1.3 Words and expressions denoting the singular number shall mean and
include the plural and vice-versa. Any gender shall mean and
include all genders.
1.4 Words and expressions denoting individual persons shall mean and
include companies and
1.
associations of persons whether or not incorporated.
1.5 Headings shall not affect the construction or interpretation of
this Agreement.
1.6 Unless otherwise expressly shown, references in this Agreement to
money are references to the currency of USA.
1.7 Where a day appointed or specified by this Agreement for the
payment of any money falls on a Saturday, Sunday or a day
appointed as a bank holiday in Western Australia for the whole
day, the day so appointed or specified shall be deemed to be the
day preceding the day so appointed or specified which is not in
turn a Saturday, Sunday or day so appointed as a holiday for the
whole day.
1.8 If for any reason any provision or part of any provision of this
Agreement is unenforceable and cannot be construed so as to be
enforceable the remaining provisions hereof or part of any
provision shall nevertheless be carried into effect.
2. APPOINTMENT OF CONSULTANT
2.1 The Consultant's appointment under this Agreement shall be
initially from 14th June 1999 until 13th June 2000 and shall be
extended to such later date as the parties may subsequently agree
("the Term").
2.1 The Company hereby appoints the Consultant to provide during the
Term the services specified in clause 3 and the Consultant hereby
accepts such appointment and agrees to provide those services
during the Term.
2.2 Nothing in this Agreement prevents the Company from engaging the
services of other consultants, companies or employees to provide
the same or similar services.
2.3 PROVIDED THAT THE RELATIONSHIP BETWEEN THE CONSULTANT AND THE
COMPANY OPERATES TO THEIR MUTUAL SATISFACTION DURING THE INITIAL
PERIOD OF THE TERM AS SPECIFIED IN CLAUSE 2.1, IT IS THE INTENTION
OF THE PARTIES TO AGREE TO EXTEND THE TERM TO
3. SPECIFIED SERVICES
3.1 The Consultant shall provide to the Company throughout the Term
such of the Specified Services stipulated in the Schedule as the
Company may from time to time direct.
3.2 The Consultant shall make available to the Company throughout the
Term the services of KF with respect to performance of the
Specified Services.
4. CONSULTANT RESPONSIBLE TO THE COMPANY REPRESENTATIVE
4.1 Until otherwise notified in writing by the Company to the
contrary, the Consultant will report to and take directions from
the Company Representative who shall be the Managing Director of
the Company or such person as the Managing Director may nominate
from time to time.
4.2 The Consultant shall consult with, and obtain directions from, the
Company Representative prior to engaging in any activity comprised
in the Specified Services.
4.3 As and when required by the Company Representative, the Consultant
shall provide a report to the Company Representative on the
results of the activities undertaken by the Consultant.
2.
5. CONSULTANT TO BEHAVE DILIGENTLY
5.1 The Consultant shall perform all of its obligations hereunder and
conduct all operations in a good, professional, workmanlike and
commercially reasonable manner with a standard of diligence,
competence and care appropriate in the circumstances and the
Consultant undertakes to ensure that all services performed by KF
under this agreement are performed to the same standard.
5.2 The Consultant and KF must not do, cause or allow any act or
omission which shall or may cause the good name of the Company or
the Dynamic Digital Depth group of companies or the Technology to
be brought into disrepute.
6. REMUNERATION OF CONSULTANT
6.1 In consideration for carrying out the Specified Services the
Consultant shall be remunerated during the Term as follows:
Monthly RETAINER
6.1.1 The Company shall pay the Consultant a fee of THREE THOUSAND
DOLLARS ($3,000.00) per calendar month with payment to be
made within fourteen (14) days of the end of each month by
electronic transfer into the following Bank account or such
other account as the Consultant may nominate at any time:
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ADDITIONAL REMUNERATION
6.1.2 Upon the Company achieving the receipt of ONE MILLION
DOLLARS ($1,000,000.00) in revenue from sales, licensing
fees and royalties from contracts agreements and services
provided in Japan, the Consultant will thereafter be
entitled to receive the following commission ("the
Commission") on cumulative revenues received by the Company
in respect of the Japanese domestic market from the
companies listed in the Schedule, as it may be amended from
time to time, the Commission to be calculated on the net
revenue received by the Company after deducting all
discounts, foreign (i.e. non-Australian) taxes deducted,
withheld, charged or chargeable, and all credits and rebates
of any kind:
Revenue % Commission Commission
expressed in dollars
The first $1 million Nil Nil
The next million to a total of $2 million 5% $50,000.00
The next million to a total of $3 million 4% $40,000.00
The next million to a total of $4 million 3% $30,000.00
The next million to a total of $5 million 2% $20,000.00
Each million above $5 million 1% $10,000.00
6.1.3 The Commission will be calculated at the end of each quarter
based on net revenue as described in 6.1.2 received by the
Company in that quarter and will be payable within thirty
(30) days of the end of the quarter.
3.
CONSULTANTS COSTS
6.2 The Company shall be responsible for costs incurred by the
Consultant as specified in the Schedule for carrying out the
Specified Services. All such costs must be specifically approved
by the Company Representative prior to being incurred. The Company
reserves the right to reject claims for costs incurred without
prior approval of the Company Representative.
6.3 The Consultant shall for each calendar month of the Term within
fourteen (14) days of the end of that month submit an invoice for
its approved costs in the format prescribed by the Company from
time to time.
6.4 In the event that the Company seeks clarification of perceived
errors and/or omissions in relation to invoices submitted by the
Consultant, the date of submission of the invoice shall be deemed
to be the date upon which a satisfactory clarification is received
by the Company. The Company shall act reasonably and in good faith
in processing the Consultant's invoices.
6.5 It is a condition precedent to the entitlement of the Consultant
to the reimbursement of each such cost that the Consultant produce
to the Company vouchers, receipts or other appropriate evidence of
the incurring of the cost or expense.
7. CONSULTANT'S EQUIPMENT AND PREMISES
7.1 The Consultant shall provide at its own expense all such office,
including telephone, facsimile and photocopying, facilities as are
required in order to perform the Specified Services.
7.2 The Consultant will maintain at its own expense an office in Tokyo
or such other location in Japan as the Consultant deems fit, for
the performance of the Specified Services by the Consultant.
8. CONFIDENTIALITY AND INFORMATION
8.1 CONFIDENTIALITY
The Consultant and KF:
8.1.1 shall not except as authorised by the Company, divulge to
any person whatsoever, any confidential information of the
Company including trade secrets, secret processes, dealings,
information concerning the Technology, organisation,
Business, finances, transactions or affairs of the Company
which may come or have come to its or his knowledge at any
time; and
8.1.2 shall use its and his best endeavours to retain in complete
secrecy all confidential information of the Company
entrusted to it or him; and
8.1.3 shall not use or attempt to use any such information in any
manner contrary to that required by the performance of the
Specified Services or which may injure, or cause loss either
directly or indirectly to, the Company or be likely so to
do.
8.2 INFORMATION
The Consultant and KF hereby covenant and agree with the Company that:
8.2.1 copyright in all things related to the Technology or
Business that may be or have been produced by or on behalf
of the Consultant or KF prior to or since the commencement
of the Term including without limitation information
recorded
4.
on computer disk or tape, audio or video tape or in writing,
has vested in, or shall vest in as the case may be, and
become the property of the Company immediately the thing is
or was produced;
8.2.2 ownership of any invention, technology, prototype or know-
how, (whether or not capable of being the subject of a
patent or other registrable protection) relating directly or
indirectly to the Technology, developed, conceived or
acquired by any means whatsoever by or on behalf of the
Consultant or KF prior to or since the commencement of the
Term ("the Improvement"), has vested in, or shall vest in as
the case may be, and become the property of the Company
immediately the thing is or was produced alternatively to
the extent to which at law such ownership is held to be
vested in the Consultant, or KF, the Consultant and KF
hereby grant to the Company a non-exclusive royalty-free,
perpetual, irrevocable worldwide licence to use in the
Business, including by way of sub-licensing, and to make,
use, licence and sell products, processes and services
derived from such Improvement; and
8.2.3 the Consultant and KF will promptly disclose to the Company
full details of any Improvement and will forthwith upon
receiving a written notice from the Company execute all such
deeds and documents and do all such other acts matters and
things as may reasonably be required by the Company in order
to document and vest in the Company (or as it may direct)
the full benefit of the Company's right title and interest
as owner, alternatively licensee, of the Improvement.
8.2.4 the Consultant and KF will execute under hand or under seal
and deliver all assignments, assurances, deeds and other
documents and instruments necessary to give effect to the
provisions of this clause and hereby irrevocably appoint the
Company their attomey-in-fact, which appointment is coupled
with an interest, to execute and file all such documents and
instruments in their names.
8.2.5 the Consultant and KF shall promptly notify the Company of
any unauthorised use of the Technology or the confidential
information of the Company of which they become aware and
will take such steps at the Company's expense and as the
Company may request to assist the Company to bring any
infringement proceedings against a third party.
9. OTHER ACTIVITIES OF CONSULTANT
Nothing herein contained shall prevent or be deemed to prevent the
Consultant and KF providing or agreeing to provide the same or similar
services to any other person or entity as it and he herein agree to
provide to the Company or prevent the carrying on of business in any
way as a business consultant, or in any professional capacity PROVIDED
HOWEVER that the Consultant and KF shall not during the Term provide
any services whatsoever to any person or company that may reasonably be
considered to be in competition with the Company or in any manner be
considered to give rise to a conflict of interest for the Consultant or
KF in relation to the provision of the Specified Services under this
Agreement.
10. TERMINATION BY COMPANY
10.1 Notwithstanding the Term of appointment of the Consultant as
herein provided, upon the occurrence of any of the following
actions or events on the part of the Consultant or KF, the Company
may terminate this Agreement at any time, without penalty and with
immediate effect by giving written notice to the Consultant:
10.1.1 breach of an essential term of this Agreement;
10.1.2 failing to remedy the breach of a non-essential term of
this Agreement within thirty (30) days of notification of
the breach of the non-essential term;
5.
10.1.3 the Consultant or KF is guilty of any grave misconduct or
wilful neglect in the discharge of the Specified Services;
10.1.4 KF dies or becomes of unsound mind;
10.1.5 KF commits an act of bankruptcy;
10.1.6 the Consultant becomes insolvent or is placed into
administration, receivership or liquidation or enters into
an arrangement with its creditors;
10.1.7 KF is convicted of an indictable offence;
10.1.8 for a period of one (1) month or for a period aggregating
one (1) month in any period of twelve (12) months KF is
unable through accident, illness or other physical or
mental incapacity to provide his services with respect to
the Specified Services;
10.1.9 the Consultant or KF attempts, or allows any other person
to attempt, to disassemble, decompile, reverse engineer,
derive source code for or produce in a humanly perceivable
form the algorithms for any part of the Technology;
10.2 no failure or delay on the part of the Company in exercising its
right of termination hereunder for any one or more causes shall be
construed to prejudice its right of termination for such or any
other or subsequent cause.
11. TERMINATION BY CONSULTANT
Notwithstanding the term of appointment of the Consultant as herein
provided, the Consultant may terminate this Agreement at any time
(without assigning any reasons therefore) and without penalty by giving
one (1) month's written notice to the Company.
12. UPON TERMINATION
12.1 The Consultant shall within seven (7) days of the date of
termination of this Agreement deliver up to the Company at the
address of the registered office of the Company all books, papers,
audio, video and computer tapes, computer discs and other
documents of whatever sort in the possession or control of the
Consultant or KF relating to the Business or the affairs of the
Company including, without limitation, a list, which the
Consultant must prepare, of all companies, persons or other
entities with whom the Consultant has dealt pursuant to this
agreement and specifying in detail the status of the account,
negotiations or other dealings therewith.
12.2 The Company shall within sixty (60) days of termination of this
Agreement pay to the Consultant all Commission and costs
reimbursement accrued but unpaid as at the date of termination.
12.3 The Consultant shall immediately upon termination of this
Agreement:
12.3.1 cease all activity on behalf of the Company;
12.3.2 cease to hold itself out as a representative of the
Company or as being in any way connected with the
Technology;
12.3.3 cease to make any use whatsoever of any business name,
trademark, form, system, slogan, spedal sign, ▇▇▇▇, symbol
or device owned by the Company or any Dynamic Digital
Depth group company,
and the Consultant hereby appoints the Company the lawful attorney
of the Consultant to make, sign, execute and do all necessary
documents, matters, acts and things pertaining to such cessation.
6.
13. ASSIGNMENT
The Consultant may not assign its rights and obligations under this
Agreement without the prior written consent of the Company. which
consent may be withheld by the Company at its complete discretion.
14. KF GUARANTEE AND INDEMNITY
KF in consideration of the agreement by the Company to engage the
Consultant in terms of this agreement does hereby unconditionally
covenant with the Company as follows:
14.1 he guarantees the performance by the Consultant of each obligation
imposed upon the Consultant by this agreement; and
14.2 he hereby indemnifies and shall keep indemnified the Company in
respect of any loss or damage suffered as a consequence of default
by the Consultant with respect to its obligations herein.
15. CONSULTANT INDEMNITIES AND UNDERTAKINGS
15.1 The Consultant hereby undertakes and agrees to indemnify the
Company against any action, suit, claim or demand, cost or expense
arising out of or referable to any damage, injury or loss caused
by or resulting from any act, omission, fault, negligence or
recklessness of the Consultant or his agents.
15.2 Subject to the provisions of this Agreement, the Consultant shall
not without the consent of the Company at any time make any
representation that the Consultant has authority to represent or
bind the Company.
16. NO PARTNERSHIP, AGENCY OR EMPLOYMENT
16.1 Nothing contained or implied in this Agreement is to be taken as
creating or constituting a partnership, relationship of principal
and agent or relationship of employer and employee between the
parties.
16.2 Neither the Consultant nor KF shall act, represent or hold itself
out as having authority to act as the agent of the Company or in
any way commit the Company to any obligation without the express
prior written consent of the Company.
17. PROPER LAW
This Agreement shall be governed by and construed according to the laws
of Western Australia and the parties hereby submit to the jurisdiction
of each court in Western Australia having jurisdiction to entertain
claims arising hereunder.
18. ARBITRATION
Any dispute in respect of the interpretation of this Agreement or any
part thereof or in respect of any matter or thing done or omitted to be
done hereunder or otherwise arising out of or in connection with this
Agreement or its performance, shall be referred to arbitration by an
independent Queens Counsel for the State of Western Australia
practising in the area of commercial litigation as agreed by the
parties, or in default of agreement appointed by the President for the
time being of the Law Society of Western Australia. The parties agree
pursuant to Section 20(1) of the Commercial Arbitration Act 1985 ("the
Act") that they may be represented by a legal practitioner at any such
arbitration. The arbitration shall be conducted in accordance with the
Act. It shall be a condition precedent to the commencement of any
litigation in respect of any matter hereby required to be referred to
arbitration that it has been so referred and the award of the
arbitrator delivered.
7.
19. VARIATION
This Agreement shall not be changed or modified in any way except in
writing executed by each of the Company, the Consultant and KF.
20. NOTICES
Any notice, offer, request, payment or demand required or permitted to
be given under the Agreement shall be in writing and shall be deemed
sufficiently served if delivered in person or by telex or telegraph or
facsimile or sent by security postage prepaid (and air mail if sent
from outside the country of the addressee) and addressed in the case of
the parties to their addresses aforesaid or to such other address as a
party shall have specified in a written notice given to the other
party. Notices given or payments made by security post as aforesaid
shall be deemed to have been given or made three (3) days after posting
and in the case of telex or telegraph or facsimile will be deemed to
have been given or made on the next business day in Western Australia
following the day of transmission. A notice, offer, request or demand
may be signed by a director, secretary, manager of or solicitor for a
party giving notice.
21. COSTS
All costs incidental to the preparation and stamping of this Agreement
shall be paid by the Company.
22. Clauses 8, 12, 14 and 15 shall continue to apply after the expiry of
the Term and any extensions thereto, and after termination of this
Agreement, without limit in point of time.
23. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof, and supersedes and
replaces any and all prior agreements or understandings, written or
oral, express or implied, between the parties hereto concerning and
relating to any and all of the subjects and contents hereoL
DULY EXECUTED as a Deed on the date first hereinbefore appearing.
8.
THE COMMON SEAL of )
DYNAMIC DIGITAL DEPTH )
AUSTRALIA PTY LTD ) [SEAL]
(ACN 060 154 949) )
was hereunto affixed )
by authority of the Directors )
in the presence of: )
Director: /s/ [Illegible]
Secretary: /s/ [Illegible]
[GRAPHIC OMITTED]
SIGNED by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- )
as the duly appointed representative of )
AiCube Co LTD ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
in the presence of: )
Wittness: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇-▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
Occupation: Director, AiCube
SIGNED BY ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Wittness: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇-▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
Occupation: Director, AiCube
9.
THE SCHEDULE
SPECIFIED SERVICES
- Account management with respect to the companies listed below
- Business development and planning with respect to Japanese domestic
market
- Technical support with respect to the activities of the Company
in Japan
- Public relations activities with respect to the Japanese
domestic market
THE COMPANIES
- Imagica Corporation- Japan
- Tomen Corporation
- Tomen Electronics Corporation
- I- O Data
GENERAL COSTS
(a) Economy Class air travel.
(b) Accommodation (including breakfast).
(c) Communication costs.
The Patents
APPLICATION INVENTION NAME STATUS PRIORITY
NUMBERS DATE
PCT WO 94/25899 3D Stereoscopic Display Unit Registered- USA 4 May 1993
Registered- Australia
- Singapore
PCT/AU95/00843 Head Tracking Unit Pending PCT 13 Dec 1994
PCT/AU97/00353 Video Display System Pending PCT 4 June 1996
(Multiviewer)
PCT/AU96/O0820 Dynamic Depth Cueing (DDC) 2D Pending PCT 22 Dec 1995
US 102,247 to 3D Conversion- Offline- 3D
Camera- 2D Compatible 3D
Transmission)
PCT/AU98/00716 Image Processing Method & Pending PCT 2 Sept 1997
Apparatus (2D to 3D Conversion
Realtime) (DDC Layers)
PCT/AU98/01005 DDC/2 PendingPCT 2 Dec 1997
Improvements to
PCT/AU96/00820
Improvements to
PCT/AU98/00716
PCT/AU98/00969 Eye Tracking Apparatus Pending PET 21 Nov 1997
PCT/AU/00028 Method & Apparatus for Pending PCT 22 Jan 1997
Producing Stereoscopic Images (3D
Glasses)
PP7275 Teleconferencing System Provisional Dec 1998
10.