1
EXHIBIT 10.7
AMENDMENT TO
AGREEMENT OF OCTOBER 6, 1992
REGARDING FORMATION OF ICC INTERNATIONAL
(ENCLOSED AS APPENDIX I)
(The Agreement)
Between
ENGELHARD/ICC (ACQUIRER OF THE BUSINESS OF ICC TECHNOLOGIES, INC.)
and
AB AVIR TECHNOLOGIES, LTD. (AB Air)
August 9, 1995
WHEREAS
Both parties desire to amend the intention to form the joint venture
corporation to be known as "ICC International, Inc., " and
WHEREAS:
Engelhard/ICC and AB Air desire that AB Air assume solely the rights to
manufacture and sell only in Israel and "the Territories" the systems as
defined in the Agreement, either by itself or with others in Israel and in the
Territories within the terms and conditions set forth in the Agreement,
THEREFORE:
Engelhard/ICC and AB Air will proceed with the Agreement with the above
mentioned alterations.
In consideration for the above, AB Air will pay to Engelhard/ICC an additional
premium over the price of the rotor/cassette set amounting to 10% (ten
percent) of the normal price, as defined below, of the rotor/cassette set to
AB Air from Engelhard/ICC. This will be applicable to the System as currently
identified in the original Agreement. The premium, which substitutes for a
royalty for technology licensing, will be applied and calculated on the same
or equivalent basis, regardless of variations in the actual purchase.
Engelhard/ICC declares its obligation and preparedness to supply to AB Air for
the purpose of execution of the Agreement and this Amendment, the
rotor/cassette sets that constitute the principal components of the System ex
factory within 60 days ARO. Such rotor/cassette sets will be supplied by
Engelhard/ICC on the basis of terms and conditions granted by it to the most
favored
2
customer," excluding demonstration or other special or promotional pricing in
limited quantifies.
Rotors and rotor cassette sets, as customarily offered by Engelhard/ICC, may
be purchased according to Section 5(F) of the Exclusive Distributor and
Representative Agreement by AB Air from any source other than Engelhard/ICC
only if Engelhard/ICC can not supply them within a reasonable and customary
period of time following an order by AB Air. Such period of time will have to
be discussed and mutually agreed upon by both parties.
The "Territories" will be redefined per this Amendment to mean:
"The territories as defined in the exclusive distribution and representation
agreement for Israel and other designated countries as of September, 1992,
plus its amendments from time to time, if any, and if expressly agreed upon in
writing by both parties."
IN ADDITION, THE FOLLOWING ADJUSTMENTS ARE MADE IN REFERENCE TO THE ORIGINAL
AGREEMENT, AND, WHEREVER NOT NOTED BELOW, THE REMAINING REFERENCE TO THE
CORPORATION (ICC INTERNATIONAL) WILL BE ASSUMED TO APPLY TO AB AIR AND THE
REFERENCES TO THE COMPANY WILL APPLY TO ENGELHARD/ICC (ACQUIRER OF THE
BUSINESS OF ICC TECHNOLOGIES):
(1) Delete Sections 9, 10 and 11, and delete from Section 12 "Upon
incorporation of the corporation" and "and/or the Israeli Company."
(2) Delete Section 13, 14 and 15
(3) Delete Sections 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26
(4) 28. Replace as follows: "In the event that AB Air decides to
divest itself of the rights to manufacture (provided that it is now
allowed to divest to a competitor of Engelhard/ICC or any entity
that Engelhard/ICC has a reasonable commercial objection to)
Engelhard/ICC will have the right of first refusal to buy that right
at a fair market value, or as determined by the highest legitimate
offer (supported by a 5% security deposit or a bank guarantee or a
certified check), whichever is the higher. Excluded from this are
the consequences of a public stock offering."
(5) Delete Section 28.
(6) Modify Section 29 to delete "and know-how with respect to
management, operation, financing, and promotion," and "purchasing
and billing control methods, merchandising,
(2)
3
advertising, sales, and promotional technique," and to replace
"personal" with "personnel."
(7) 39. The Company shall allow the Corporation to ... alter and modify
the System ... Add to Section 39, "The Company shall provide
reasonable technical support to ensure that the Corporation can
accomplish the objectives mentioned above.
(8) Section 40. Delete "from the Engelhard/ICC joint venture (or
others)" and replace with "from others." Add "if needed for the
manufacture of the System."
(9) Section 41. Delete "the Engelhard/ICC joint venture (or others)"
and replace with "others."
(10) 44 ... the Company will not grant to nor will the Corporation accept
from ...
(11) 45. Neither the Company nor the Corporation shall employ, or seek
to employ any person who is at the time employed by the other party
or by any person who is at the time operating a similar
establishment under license from either party, and shall not,
directly or indirectly, induce any such person to leave his or her
employment as aforesaid.
(12) Modify Section 49 as follows: Add "Any variations to the design
which are not the result of efforts of the Company are excluded from
this defense."
(13) 52. The Corporation (now AB Air) shall grant to the Company (now
ENGELHARD/ICC) a royalty-free world-wide license outside of the
Territory to any improvements in the System made by employees or
agents of the Corporation and for which the Corporation will hold
rights, unless such improvement is the subject of another agreement
such as the Agreement regarding Joint Development Program.
(14) Delete Sections 55, 56, 57, 58, 59, 60, 61, 62, 63 and 64.
(15) Section 65. Delete "valid trademarks" and "and/or copyrights."
Add "This Section applies only in territories wherein Engelhard/ICC
claims patent protection, and only for those designs for which
Engelhard/ICC claims patent protection."
(3)
4
(16) 69. Delete second "... at no charge to the Corporation" which
refers to the Corporation (AB Air) sending its employees to the
Company (Engelhard/ICC).
(17) Delete 73
(18) AB Air shall manufacture units only for sale in the territory,
unless otherwise authorize in writing by Engelhard/ICC.
AB Air shall assure that, to the best of its knowledge, such units
are not installed outside of the Territory. AB Air will take all
necessary legal action, at its own expense, to remedy the situation.
(19) Engelhard/ICC shall assure that, to the best of its knowledge, the
System shall not be sold, manufactured, assembled, or installed by
itself, and/or by any third party, within the Territory.
Engelhard/ICC will take all necessary legal action, at its own
expense, to remedy the situation.
This will become an integral part of the Agreement.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/
--------------------------- ----------------------------
Engelhard/ICC AB Air
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
ICC Technologies
(4)
5
A G R E E M E N T
This agreement entered into at PHILADELPHIA, PA., U.S.A, this __th day of
September, 1992, by and between ICC TECHNOLOGIES, INC., a DELAWARE
corporation, with principal office at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (The "Company") and A.B. AVIR TECHNOLOGIES LTD., an Israeli corporation
with principal office at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, or its'
assignee (the "Israeli Company") is made on the basis of the following
understandings and recitals and in consideration of the following promises,
and the parties hereto, intending to be legally bound, agree as follows :
STATUS OF THE PARTIES
1. The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the state of Delaware, with corporate
power to carry on its business as it is now being conducted. The Company
has its principal place of business at Philadelphia.
2. The Israeli Company is a corporate duly organized, validly existing, and
in good standing under the laws of the state of Israel with corporate
power to carry on its business.
The Israeli Company has its principal place of business at Ramat
Hasharon.
DEVELOPMENT OF SYSTEM
3. The Company has developed and is engaged in marketing, manufacturing and
sale, and is providing to business firms, a unique and successful
Desiccant based air conditioning, air drying and air quality improving
systems and derivatives, similiars and parts thereof (The "System") of a
distinctive nature, of high quality and of other distinguishing
characteristics, placed in operation by the Company and provided mainly
under the name of Desi/Air.
4. The Company manufactures the System under certain patents, certain
patents applied for and licenses, in the United States of America and
other countries and sells them under certain trade names and bearing
certain trade marks throughout the world.
5. Patents of the United States and other countries, certain Patents applied
for and licenses are as contained in exhibit A.
6
EXCLUSIVE RIGHT TO USE NAME, TRADEMARKS AND LOGOS
6. The Company claims to exclusive right and power to use the tradenames
Desi Air and certain service marks and logos and other insignia used in
conjunction therewith (the "Trademarks").
7. The Company claims it is the owner of the trademarks registered in the
United States Patent and Trademark Office as contained in exhibit A.
CONFLICTS WITH OTHER AGREEMENTS
8. Neither the execution and delivery of this Agreement nor the consummation
of the transactions contemplated hereby will violate or constitute a
default under any Agreement or instrument to which the company is a party
or by which its System may be affected.
NEW BUSINESS
9. The Israeli Company and the Company desire to form a corporation in the
state Of Delaware for the purpose of engaging in the business of
manufacturing in Israel, importing and exporting of components and
materials, and to have the System manufactured, have made, by itself
and/or by others, upon the terms and conditions hereinafter set forth.
10. The Company and the Israeli Company shall cause a new corporation (the
"Corporation") to be duly organized under the laws of the state of
Delaware in accordance with the terms of this Agreement and with
(appropriate documents equivalent under the laws of the jurisdiction to
articles and by-laws) which in the English translation shall read in
substantially the form of Exhibit B attached hereto. If any of the
provisions contained in Exhibit B should not be approved by the
appropriate authority for inclusion in the documents of incorporation of
the corporation, the parties agree to make such amendments thereto as
shall be acceptable to the said appropriate authority without altering
their purpose or intention, or failing such amendments, to take all such
other steps and do such other things, including the execution of any
other agreements as may be necessary, to achieve the interest and purpose
of such of the provisions as may not have been found acceptable by the
said appropriate authority. The cost of incorporating the Corporation
shall be borne equally by the Company and the Israeli Company.
11. The Corporation shall be formed and organized in the State of Delaware,
unless the Israeli Company shall not be able to obtain
(2)
7
an authorization from the Controller of the Foreign Currency of the State
of Israel, to form and organize the Corporation in Delaware and in which
case, the Corporation shall be formed and organized, as mentioned
hereunder, in the State of Israel.
LICENSE FROM THE COMPANY
12. Upon the incorporation of the Corporation, the Company, at no extra cost
to the Corporation and/or the Israeli Company, shall license and grant to
the Corporation all rights in the Company's exclusive systems as
contained in schedule A, patents, technology, know-how, trademarks and
trade names necessary to permit the Corporation to manufacture,
assemble,use, have it made by itself or by others, within the Territory
as hereunder defined, according to the terms and condition of this
Agreement.
NAME OF THE CORPORATION
13. The name of the corporation shall be ICC INTERNATIONAL INC.
SUBSCRIPTION TO CAPITAL OF THE CORPORATION
14. The parties hereto hereby subscribe to such capital stock of the
corporation in equal amounts and each party will be required to pay 50%
of the sums required for start-up and working capital of the Corporation.
PRE INCORPORATION EXPENSES
15. The parties agree to advance on behalf of the Corporation the sums
necessary to carry out the intents and purpose of this Agreement.
PURPOSE OF CORPORATION
16. The purpose of the corporation shall be the manufacture, assemble, use,
import, export and sale of the System and similar or allied products
under the terms and conditions hereafter set forth, by itself and/or by
others.
(3)
8
PERSONS DESIGNATED TO ACT AS INCORPORATORS
17. The parties of this Agreement will designate at the time of incorporation
persons to act as incorporators of the corporation to be organized
hereunder and authorize and empower them to have prepared, execute and
filed articles (or a certificate) of incorporation in such form and
containing such provisions as they deem advisable, so long as such
provisions are not inconsistent with this agreement.
PROVISION FOR PERPETUAL DURATION UNLESS TERMINATED SOONER
18. The duration of the Corporation shall be perpetual unless its existence
shall be terminated as hereinafter provided.
MANAGEMENT OF THE CORPORATION
19. The affairs of the Corporation shall be managed by a Board of
Directors,two of whom shall be nominated by the Company and two of whom
shall be nominated by the Israeli Company. The Company and the Israeli
Company shall each vote all shares of the capital stock of the
Corporation owned or controlled by them for the election and maintenance
in office of the persons so nominated.
20. In the event that between annual shareholders' meetings of the
Corporation, either the Company or the Israeli Company wishes to replace
any or all of its nominees on the Board of Directors of the Corporation,
the other shall join in all necessary acts, steps and proceedings, and
shall cause the shares of the Corporation to which it is beneficially
entitled to be voted in favour of the removal of such nominee or
nominees, of the transfer of the qualifying share or shares of such
nominees to the person or persons selected by the Company or the Israeli
Company, as the case may be, and the election in his or their place of a
qualified person or of qualified persons selected by the party hereto
whose nominee shall have been so removed.
21. Nothing contained in this Agreement is intended or shall be construed to
bind the parties hereto or their nominees on the Board of Directors of
the Corporation as to the method or manner of the exercise of the
discretion vested in them as directors of the Corporation concerning
their management of the affairs thereof.
22. All decisions of the Board of Directors shall require an affirmative vote
of at least three directors.
(4)
9
23. Prior written notice of all directors' meetings shall be sent to all
directors at least twenty days before the meeting, specifying the time
and place of the meeting and indicating all matters to be considered
there at, and including copies of any reports or studies relating
thereto. Notice may be waived by the unanimous written consent of all
directors.
24. A quorum of a meeting of the directors shall consist of three directors.
In lieu of a validly constituted meeting as described herein, and
directors' resolution shall be considered to have been validly passed if
consented to in writing by all the directors.
25. The board shall elect a chairman and the chairman will decide about
setting the meetings of the board and inviting the directors to the
meetings as mentioned above. In no case, however, meeting shall not take
place less than once per quarter.
Special meetings of the board may take place upon proper notification.
Notice of a special meeting of Directors or of any Committee of the Board
of Directors shall be delivered at least one day prior to such meeting by
oral, telegraphic or written notice. If mailed, such notice shall be
deemed to be delivered on the second day following the day deposited in
the United States mail, addressed to the Director at his business
address, with postage thereon prepaid. If notice be given by telegram,
such notice shall be deemed to be delivered on the day the telegram is
delivered prepaid to the telegraph company, addressed to the Director at
his business office. Notice of a meeting need only state the place, day
and hour of the said meeting.
OFFICERS OF THE CORPORATION
26. The Chief Executive Officer of the Corporation shall be designated the
President (hereafter "The President") and shall be agreed to by both
parties. The duties and responsibilities of the President, without
enlarging or restricting the duties and responsibilities devolving upon
him by the law of Israel, shall be to administer all the affairs of the
Corporation.
BOOKS
27. Proper books of account shall be kept by the Corporation and shall be
freely accessible to representatives of both parties hereto at all
reasonable times. The auditors of the Corporation
(5)
10
shall be appointed at the annual meeting of shareholders by unanimous
vote.
TRANSFER AND ASSIGNMENT OF SHARES
28. Restrictions on Transfer and Issuance.
(a) The Parties to this agreement shall not sell, assign, transfer,
give, bequeath, devise, donate or otherwise dispose of, or pledge,
deposit or otherwise encumber, in any way or manner whatsoever, any
of the Shares now or hereafter held by it except as expressly
provided in this Agreement and in accordance with its terms and
conditions.
(b) Restrictions on the Corporation.
Except in accordance with the terms and conditions of this Agreement
the Corporation shall not, without the consent of each of the
Parties, (1) cause or permit the transfer of any Shares to be made
on its books, (2) issue any Shares, whether by original issue or in
connection with the sale of Shares now or hereafter held in the
Corporate's treasury, (3) create any securities, instruments or
rights convertible into capital stock of the Corporation, or (4)
purchase, redeem or otherwise acquire any Shares.
(f) Option of Offeree Shareholders.
In the event that the Corporation does not exercise its option with
respect to all of the Shares subject to the offer in accordance with
Paragraph (c) hereof, the Selling Shareholder shall, upon notice
from the Corporation of the Corporation's decision not to accept the
Selling Shareholder's Offer as to all of its Shares subject to the
offer (or upon expiration of the thirty-day option period referred
to in Paragraph (28e) if the Corporation fails to give notice as
aforesaid, be deemed to have offered in writing to sell any or all
of its remaining Shares subject to the offer (those not to be sold
to the Corporation) to the other Party at the price and upon the
terms set forth in Paragraph (a) hereof. For a period of thirty (30)
days after such Offer by the Selling Shareholder to the other party,
the other party shall have the option, exercisable by written notice
to the Selling Shareholder, with a copy to the Corporation, to
accept the Selling Shareholder's
(6)
11
Offer as to any or all of the Selling Shareholder's remaining Shares
subject to the offer.
(g) Acceptance of the Bona Fide Offer.
Subject to the terms hereof if, at the end of the option periods
described hereof, options have not been exercised by the Corporation
and/or the Offeree Shareholder to purchase all of the Selling
Shareholder's Shares subject to the offer, the Selling Shareholder
shall be free for a period of forty (40) days thereafter to (i) sell
its remaining Shares subject to the offer to the prospective
purchaser under the Offer, and to no one else, at the price and upon
the terms and conditions set forth in the offer; or, (ii) dispose of
such Shares to the entity attempting to obtain ownership thereof by
foreclosure or similar action as more specifically provided herein.
If such Shares are not so sold or disposed of within the aforesaid
forty-day period, the Selling Shareholder shall not be permitted to
sell or dispose of such Shares without again complying with
Paragraph "28".
(h) Permitted Transfers.
Subject to the terms hereof, notwithstanding anything to the
contrary contained herein, the Parties shall be entitled to transfer
the Shares to any Affiliate, provided, however, that such transferee
Affiliate shall comply with the conditions of this agreement and
undertake upon himself the assigners' commitments.
GRANTING THE SYSTEM AND RELATED SERVICES
29. The Company grants the Corporation the right to conduct business
utilizing the System, and makes available to the Corporation, in order to
assist it to get started in business and to achieve maximum results,
guidance, and know-how with respect to management, operation, financing,
and promotion, including site selection, equipment selection and
installation, supply selection, purchasing and billing control methods,
merchandising, advertising, sales and promotional technique, personal
training, and other matters relating to the efficient and successful
operation of a business, and the maintenance of high standards of
quality. At times mutually agreeable between the parties hereto, the
Company shall, at no charge to the Corporation (except for out of pocket
expenses), send its' representatives to Corporation facilities or
principal offices for the purpose of providing such assistance.
(7)
12
30. In consideration for the execution and delivery of this Agreement, the
Company hereby grants the Corporation and appoints the Corporation as the
companies exclusive systems' manufacturer and distributor for the
Territory, upon the terms and subject to the conditions set forth herein.
For so long as this Agreement remains in effect, the Company shall not
authorize any other party to act as its representative, to manufacture,
to assemble or otherwise deal with the offer or sale of the System within
the Territory or otherwise.
31. The exclusive rights herein granted shall include all inventions,
improvements, Patent applications, or Patents which the Company now owns
or controls or may hereafter own or control in the System contained in
exhibit A.
32. The Company grants to the Corporation an exclusive right for the term of
this Agreement of all of its Letters Patent hereunder mentioned to
manufacture, assemble and sell in the Territory, machines embodying
mechanisms covered by any and all of the said Letters Patent and Patent
rights or by any applications now prepared and unfiled or filed and for
which no number has been issued, or covered by any modifications, changes
or improvements to any machines, tools, or accessories, now owned or
hereafter acquired by Company or covered by any drawings, designs or
specifications, relating to the machines and the System, whether or not
the subject of Letters Patent.
33. For the purpose of this Agreement, the term "System" shall mean those
products or product lines described and defined in exhibit A and its'
derivatives and as the parties may mutually agree in writing from time to
time during the term hereof.
TERRITORY
34. For the purpose of this Agreement, the term "Territory" shall mean the
geographic area described in Exhibit C, which is attached hereto and
incorporated herein by reference.
DESIRE TO USE NAMES
35. The Company desires the Corporation to use the trademarks and the System
and to derive the benefits of the advertising, promotion and reputation
of the System and the Company's information, experience, advice, guidance
and know-how.
(8)
13
REGISTERED USER APPLICATIONS
36. If the law permit, the Company shall make application to register the
Corporation as a Permitted User or Registered User of the Trademark and
if necessary, or if required by the Company or its duly authorized
representative, the Israeli Company undertakes to join in such
application under the conditions of this agreement and to execute any
such documents as may be necessary to implement such applications.
REGISTRATION OR TRADEMARK
37. The Company will use its best efforts to register and maintain, or cause
to be registered and maintained, the Trademark in the Territory to enable
the System to be distributed and sold in the Territory under the
Trademark as provided herein. The Company will not permit any other
person to use the Trademark in the Territory in connection with the
System.
TRANSFER OF GOOD WILL IN CONNECTION WITH ASSIGNMENT OF TRADEMARK
38. In addition to the trademark, the Company will allow the Corporation to
take advantage of any good will by way of product, name or other.
ACCOMMODATION OF THE SYSTEM
39. The Company shall, upon the formation of the Corporation, by supplements,
addenda, improvements, amendments or otherwise, alter and modify the
System and its methods, procedures and technology hereunder granted, in
order to accommodate it and render it desirable and suitable for
operation within the Territory, in the best possible manner.
LIST PRICES, DETERMINATION OF PRICES
40. The System parts, and the similar or allied parts of the System shall be
sold to the Corporation by the Company, at the transfer price of the
components to the Company from the Engelhard/ICC joint venture (or
others) plus a small handling charge.
41. The payments terms to the Corporation for the above will be the same as
those that the Company has with the Engelhard/ICC joint venture (or
others).
(9)
14
RESALE PRICE OF THE SYSTEM
42. The Corporation shall at its own discretion establish the prices at which
it sells the System.
SUB-DISTRIBUTORS
43. The Corporation may appoint sub-distributors or agents for the sale or
otherwise, as hereunder mentioned, of the System. A.B. Avir Technologies
Ltd. will be the exclusive distributor for the Territory.
EXCLUSIVITY
44. During the effective terms hereunder this Agreement, the Company will not
grant to any individual, association, firm or Corporation, directly or
indirectly, any franchise, license rights and privileges to conduct,
maintain or operate a similar establishment and/or to adopt or use the
aforementioned trade names and/or trademarks in the Territory. During the
effective terms of this Agreement, the Company shall not, except with the
consent of the Corporation and of the Israeli Company, engage in any
business the same as or similar to the business covered by this Agreement
in the Territory.
45. The Company shall not employ, nor seek to employ any person who is at the
time employed by the Corporation and/or the Israeli Company or by any
other person who is at the same time operating a similar establishment
under license from the Israeli Company and/or the Corporation, and shall
not, directly or indirectly, induce any such person to leave his or her
employment as aforesaid.
46. The rights hereby granted shall be exclusive with the Corporation. The
Company covenants and agrees that it will not, during the term of this
Agreement, grant any or other rights in the Patents mentioned hereunder
and all patents therefore or thereafter referring to the System to any
other person, firm or corporation, within the Territory.
TRADENAMES, SERVICE MARKS AND TRADE SECRETS
47. The Israeli Company and/or the Corporation shall not, at any time during
the terms of this Agreement, copy or duplicate, or permit the copying or
duplication, nor publish, disclose or in any manner reveal, or permit the
publications, disclosure or
(10)
15
revelation in any manner, to any person or entity, except employees of
the Corporation and/or the Israeli Company approved by the Company, any
information or material supplied by the Company to the Corporation and/or
the Israeli Company, and designated by the Company as confidential
information. Corporation and the Israeli Company hereby recognizing and
agreeing that all such information and materials are confidential
information and trade secrets of the Company and will be disclosed to the
Israeli Company and/or the Corporation in strict confidence.
WARRANTY OF PATENT RIGHTS
48. The Company warrants that the Patents mentioned hereunder are
genuine and valid, that it has sole title to it, that it has full
right, authority and power to enter into this Agreement, and that it
shall indemnify and save harmless the Corporation against any and
all rights that may be held or claimed by others.
PATENTS
49. The Company agrees to defend any suit or proceeding brought against
the Corporation and/or the Israeli Company based on a claim that any
equipment furnished hereunder constitutes an infringement of any
existing patent in the Territory, provided the Company is notified
promptly in writing and is given authority and the Corporation
and/or the Israeli Company cooperates with the Company to the extent
of furnishing information required for the defense of same; and the
Company shall pay all damages and costs awarded therein against the
Corporation and/or the Israeli Company.
50. In the event the System furnished hereunder becomes the subject of
an actual or prospective suit or claim for patent infringement, the
Company shall at its option and expense, either (1) procure for the
Corporation the right to continue using the System or (2) modify it
to become non-infringing or (3) replace the System with a
non-infringing System. Any modified or replacement System shall
perform in a like manner to the System being modified or replaced.
IMPROVEMENT IN SYSTEM
51. The Company may, by Supplement, addenda or amendments to the manual
or other communications, supplement, improve or otherwise alter the
System and the methods, procedures and technology which the
Corporation is authorized and required hereunder to utilize in
operation of its business, and the
(11)
16
Company understands and acknowledges that it will at all times
maintain and update accordingly the conduct of the Corporation and
the character and quality of the System hereunder granted.
52. In the event employees of the Corporation shall make any
improvements in the System, the Company shall be licensed to use
said improvements and any applications and Patents thereof subject
to payment of Royalties to the Corporation on a basis to be decided
upon between the parties at a later date.
53. If during the continuance of this Agreement the Company makes any
further improvements in the System or the mode of using it, or
become the owners of any such improvements either through Patents or
otherwise, then it shall communicate such improvements to the
Corporation and give the Corporation full information regarding the
mode of using them and the Corporation shall be entitled to use the
same with all rights which are hereby granted to the Corporation in
respect to the System, without paying any additional money with
respect thereto.
ARBITRATION OF DISPUTES
54. In the event that differences should arise between the Company and
the Israeli Company as to the meaning or application of provisionsof
this Agreement, such differences shall be settled by arbitration.
Both parties agree to submit the matter to arbitration and accept
the decision of the majority of an arbitration board consisting of
one member selected by the Company, one member selected by the
Israeli Company, and a third selected by the two arbitrators
nominated as above. In the event that the two arbitrators selected
by the parties fail to agree on the selection of the third
arbitrator, thereupon application of either party, any judge of the
Court of Tel-aviv, shall appoint the third arbitrator, who shall act
under this Agreement with the same effect as if he had been
specifically named. Site of arbitration shall be at an appointed
time and place located in Tel-aviv, Israel. Such arbitration may be
demanded by either party to this Agreement by notice in writing. It
shall be encumbent upon both parties to nominate an arbitrator. The
expenses of the arbitrator selected by the Company shall be borne by
the Company; the expenses of the arbitrator selected by the Israeli
Company shall be borne by the Israeli Company; the expense of the
third arbitrator shall be borne equally by both parties.
(12)
17
PAYMENT OF EXPENSES
55. All expenses of the bossiness and Operations of the Corporation
shall be paid out of the amount invested as herein provided for
and/or out of any earnings of the Corporation.
DIVISION OF PROFITS
56. The profits of the Corporation, if divided, shall be shared among
the parties in proportion to their respective subscriptions.
LIABILITY OF THE PARTIES HEREUNDER
57. In no event shall any party hereunder be called upon to pay any
amount beyond the liability arising against it on account of the
amount of its subscription. The failure of any party hereunder to
perform any of its undertakings hereunder shall not affect or
release any other party.
PAYMENT OF LOSSES
58. In the event that losses result from the operations of the
Corporation, such losses shall be paid from the amounts invested and
advanced by the parties hereunder and from the capital of the
Corporation and its reserve accounts.
LIQUIDATION OF CORPORATION
59. Upon the dissolution or other termination of the Corporation,
whether pursuant to the provisions of this Agreement or otherwise,
the President shall at once proceed to liquidate the business being
conducted hereunder. In such liquidation he shall dispose of all
property of the Corporation, shall collect all sums owed to it and
turn into cash all of its assets. From the money so received, he
shall then pay all debts and obligations of the Corporation. Out of
the balance he shall retain any amount to which he may be entitled,
pursuant to this Agreement. The money then remaining in
the Corporate account shall be distributed and paid to the
parties hereunder in proportion to the amount which each has
invested hereunder.
TRANSFER-OF-INTEREST
60. Any subscriber shall have limited power and authority to transfer
and assign any interest in the Corporation, except as hereby
limited. Such assignment, however, shall provide
(13)
18
that the assignee must perform and fulfill all obligations of the
assignor under the provisions of this Agreement, the assignor or the
assignee shall at once inform the President thereof and the assignee
shall before obtaining any rights under the Agreement, execute an
agreement in a form supplied by the President binding himself to
fulfill all of the duties and obligations of the assignor hereunder.
In the event that the assignee fails to execute such agreement, he
shall not be recognized as a member of the Corporation and the other
parties hereunder may hold such assignor to any duties and liability
that he may otherwise have been bound to perform or have incurred
under this Agreement and had such assignment not been made.
DEPOSIT OF CAPITAL CONTRIBUTIONS
61. The funds so subscribed and paid to the Corporation shall be
deposited in a bank, as agreed by the parties and shall be disbursed
by the President in carrying on the business of the Corporation.
TIME TO BE DEVOTED BY PARTIES TO CORPORATION
62. It is understood that the parties hereunder have other interests,
and shall not be required to devote full time to the conduct and
management to the Corporation. Each of the parties hereunder shall
devote to the Corporation such time as shall be necessary to the
efficient operation of the business, at no charge to the Corporation
other than as provided hereunder. Each of the parties hereunder
acknowledge that they occupy a fiduciary relationship with one
another and each agrees to use the utmost good faith in dealing with
the other.
ACCOUNTS AND RECORDS
63. The Corporation Shall keep full and accurate accounts, and shall
follow the accounting methods and practices customarily employed in
business of like character. All dealings and transactions relating
to the business shall be duly entered in the accounts in the usual
and ordinary custom of business and each of the parties hereunder
shall have full and free access to the books and may inspect them at
any and all reasonable times, and without the consent of the other
party.
STATEMENTS
(14)
19
64. Operating statements showing itemized expenses shall be prepared not
later than the 15th day of January, April, July and October for the
preceding three months' operations and the remaining net profits,
after deduction of all salaries (including any salaries authorized
by mutual agreement for one or more of the parties hereunder) shall
be divided and allocated to the parties hereunder. The profit shall
be distributed or retained in the business as shall be determined by
the President. Losses, if any, shall be borne by the parties
hereunder in the same proportion as the profits. The fiscal year of
the Corporation shall be from January 1st to December 31st, and an
annual accounting shall be made upon the close of business on
December 31st of each year. In addition to the quarterly operating
statements, each party shall be given within 90 days after the close
of each fiscal year a copy of any unaudited balance sheet and
operating statement together with a copy of the partnership tax
returns for the Corporation. Any party may, upon written demand upon
the President made within 20 days of receipt of the annual report,
cause the Corporation to have the annual report audited in
accordance with generally accepted auditing standards by independent
public accountants selected by the general meeting . The cost of the
audit shall be borne by the Corporation and considered an expense of
doing business.
WARRANTY AGAINST INFRINGEMENT INDEMNIFICATION
65. The Company warrants that the distribution, marketing and sale of
the System by the Corporation, as provided for in this Agreement,
shall not violate or infringe any valid trademarks, patents and/or
copyrights held by third parties and undertakes that it shall
defend, indemnify and save harmless Corporation, its agents,
sub-distributors, officers, directors, employees, shareholders,
successors and assignees, and each of them, from and against any and
all claims, actions and suits, whether groundless or otherwise, find
from and against any and all liabilities, judgments, losses,
damages, costs, charges, attorney's fees, and other expenses of
every nature and character by reason of such violation or
infringement.
SALES LITERATURE
66. The Company shall prepare technical literature, specifications and
drawings required for the manufacture and maintenance of the System
and provide them to the Corporation free of charge.
TECHNICAL TRAINING BY THE COMPANY
(15)
20
69. At times mutually agreeable between the parties hereto, the Company
shall, at no charge to the Corporation except for out of pocket
expenses), send its representatives to Corporation facilities or
principal offices for the purposes of providing technical assistance
and training to the Corporation. In addition, at a time mutually
agreeable between the parties hereto, Corporation may, at no charge
to the Corporation, send its' employees or representatives; to the
Company's facilities or principal offices for the purpose of
receiving training by the Company.
TECHNICAL ASSISTANCE
70. The Company shall, at no charge, furnish to the Corporation the
services of technicians of such skills and in such number as may be
required to discharge properly its responsibilities under this
Agreement. During the time such technicians are in the Territory,
the Company will assume their salaries and the Corporation will
assume their reasonable living and travelling expenses. Details
regarding the selection of personnel and their period of residence
in the Territory will be determined by mutual consent.
WAIVER AND DELAY
71. No waiver by either party of any breach or series of breaches or
defaults in performance by the other party, and no failure, refusal
or neglect of either party to exercise any right, power or option
given to it hereunder or to insist upon strict compliance with or
performance of either party's obligations under this Agreement,
shall constitute a waiver of the provisions of this Agreement with
respect to any subsequent breach thereof or a waiver by either party
of its right at any time thereafter to require exact and strict
compliance with the provisions thereof.
GENERAL TERMS AND CONDITIONS
72. The subject headings of the paragraphs of this Agreement are
included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
73. If any legal action, arbitration or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged
dispute,breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorneys'
fees and other
(16)
21
costs incurred in connection with that action, arbitration or
proceeding, in addition to any other relief to which such party or
parties may be entitled.
74. All notices, requests demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to
whom notice is to be given, or on the fourth day after mailing if
mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly
addressed to their addresses as mentioned in the preamble to this
agreement.
Any party may change its address for purposes of this
paragraph by giving the other party written notice of the new
address in the manner set forth above.
75. Should any term, condition or provision of this Agreement be found
to be invalid or unenforceable, such finding shall in no way affect
the validity or enforceability of all other terms, conditions and
provisions hereof, and such terms, conditions and provisions shall
be valid and enforceable as if the invalid or unenforceable term,
condition or provision was never a part hereof.
76. This Agreement shall be constructed in accordance with and governed
by the laws of the State of Israel. No claim, demand action,
proceeding, arbitration, litigation, hearing, motion or lawsuit
arising herefrom or with respect hereto shall be commenced or
prosecuted in any jurisdiction other than the State of Israel, and
any judgment, determination, finding or conclusion reached or
rendered in any other jurisdiction shall be null and void between .
the parties hereto.
GENDER AND NUMBER
76. All terms used in any one number of gender shall extend to mean and
include any other number and gender as the facts, context, or sense
of this Agreement or any paragraph or section hereof may require.
SEVERABILITY OF PROVISIONS
77. The paragraphs of this Agreement are severable and in the event any
paragraph or option of the Agreement is declared illegal or
unenforceable, the remainder of the Agreement shall be effective and
binding on the parties.
(17)
22
RELATIONSHIP OF PARTIES
78. The parties hereto are independent and neither party is the agent,
partner or employee of the other, except as expressly provided.
INTEGRATION OF ALL AGREEMENTS
79. Without prejudice to the exclusive distribution and representation
agreement signed between the parties, this agreement, the documents
referred to herein, and the attached Exhibits and Addenda constitute
the entire and complete agreement among the parties concerning the
subject matter of this Agreement. There are no representations,
inducements, promises, or agreements, oral or otherwise, among the
parties not embodied in this Agreement or in the Offering Circular,
which are of any force or effect with reference to this Agreement.
No amendment, change, or variance from this Agreement shall be
binding on any party unless executed in writing the Company, the
Israeli Company and the Corporation.
BINDING AGREEMENT
78. This Agreement shall be binding upon the parties, their respective
heirs, successors, legal representatives, and assigns.
INTENDING TO BE LEGALLY BOUND, the parties have executed this
Agreement in duplicate the day and year first written above.
SIGNATURE OF THE PARTIES
ICC TECHNOLOGIES, INC. A.B. AVIR TECHNOLOGIES LTD.
(18)