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EX. 10.12
AGREEMENT
AGREEMENT made this 6th day of May, 1997, between ▇▇▇▇▇ ▇▇▇▇▇▇, Israeli
Identity No.: 030203425, residing at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
(hereinafter "▇▇▇▇▇ ▇▇▇▇▇▇") on the one hand, and TTR TECHNOLOGIES LTD., an
Israeli company with offices at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ("TTR Ltd.")
and TTR INC., an Delaware corporation with offices in New York, New York ("TTR
Inc."; TTR Ltd. and TTR Inc., collectively referred to as the "TTR Companies")
on the other hand.
W I T N E S S E T H
WHEREAS, disputes between ▇▇▇▇▇ ▇▇▇▇▇▇ and TTR Ltd. have arisen in
connection with the retention and termination of ▇▇▇▇▇ ▇▇▇▇▇▇ as a consultant to
TTR Ltd., which disputes have resulted in claims brought by ▇▇▇▇▇ ▇▇▇▇▇▇,
inter-alia, for breach of contract against the TTR Companies. ▇▇▇▇▇ Israel's
claims are fully set forth in Civil File ▇▇▇/▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for Tel
Aviv-Jaffa and Summary Judgment File 32591/97a, Magistrate Court for Tel
Aviv-Jaffa (hereinafter, the "Lawsuit");
WHEREAS, each of the TTR Companies expressly denies each and every claim
and allegation set forth in the Lawsuit; and
WHEREAS, the parties desire to resolve all disputes between them;
Accordingly, the parties are entering into this Agreement.
NOW, THEREFORE, the parties agree hereafter as follows:
1. Consideration & Undertakings of the Parties
1.1 Consideration. In consideration of ▇▇▇▇▇ Israel's full and final
release of all claims, as set forth in the Lawsuit, the TTR Companies, jointly
and severally, agree to the following:
(i) within three (3) days after the due execution by the parties of this
Agreement, pay to ▇▇▇▇▇ ▇▇▇▇▇▇ the amount of NIS 38,000, plus VAT (at a
rate of 17%) (hereinafter, the "Back Fees"); and
(ii) issue to ▇▇▇▇▇ ▇▇▇▇▇▇ within ten (10) business days following the
effectiveness of this Agreement, 15,000 shares of the Common Stock, par
value $0.001, of TTR Inc. (hereinafter, the "Shares"). The parties agree
that for purposes of this Agreement, issuance of the Shares shall be
deemed to have fully and finally occurred upon presentation to ▇▇▇▇▇
▇▇▇▇▇▇ of the opinion of
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Aboudi & ▇▇▇▇▇▇▇▇▇▇, Law Offices, to the effect that all actions
necessary for the issuance of the Shares hereunder have been completed.
1.2 Other Undertakings of the TTR Companies.
(i) At any time that TTR Inc. proposes to register (including for this
purpose a registration effected by TTR Inc. for any of its existing
shareholders) any of its share capital or other securities under the
Securities Act of 1933 (hereinafter, the "Securities Act"), as amended,
the Company shall, at such time, cause to be registered under the Act
all of the Shares. TTR Inc. acknowledges that registration under this
Section 1.2(i) comprises a fundamental provision of this Agreement and,
accordingly, will use its best efforts to facilitate and expedite the
registration of the Shares.
(b) At any time following the 180th day after registration of the Shares
in accordance with the provisions of Section 1.2(i) and continuing for
three (3) business (trading) days thereafter, upon and subject to the
sale, transfer or other disposition of the Shares (or any part thereof)
in a bona-fide arms-length ordinary brokerage transaction in the
over-the-counter market (and not by way of a private sale) (hereinafter,
the "Share Disposition"), TTR Inc. will remit to ▇▇▇▇▇ ▇▇▇▇▇▇, at ▇▇▇▇▇
Israel's written request, an amount per Share, equal to the difference
between $15.50 and the actual gross consideration (the actual price at
which the trade is completed, as recorded by the broker) received by
▇▇▇▇▇ ▇▇▇▇▇▇ (or his designee) in connection with such Share
Disposition; PROVIDED, THAT, TTR Inc.'s, obligation under this
Sub-section 1.2(ii) shall terminate and be of no force or effect if at
any time after registration of the Shares as provided under Section
1.2(i) above, the per Share sale price at which TTR Inc.'s publicly
traded Common Stock trades in the over-the-counter market averages in
excess of $15.50 per Share for a two (2) consecutive day period ;
PROVIDED, FURTHER, that, TTR Inc.'s obligation hereunder shall be
exercised, at the request of ▇▇▇▇▇ ▇▇▇▇▇▇ as herein provided, on only
one (1) occasion. In determining the average price at which TTR Inc.'s
publicly traded Common Stock trades in the over-the-counter market in a
given one (1) day period, the sale price per share of Common Stock
traded shall be multiplied by the number of shares traded at that price
(the product being the "Traded Dollar Amount per Transaction") for all
transactions, and the aggregate Dollar amount of all Traded Dollar
Amount per Transaction shall be divided by the total number of shares
traded on such day.
Notwithstanding anything to the contrary contained herein, TTR Inc.'s
obligation hereunder shall terminate and be of no further force or
effect with respect to any part of such Shares that are transferred,
sold or otherwise disposed of at any time after their issuance hereunder
and prior to the 180th day after registration of such Shares (under
Section 1.2(i) above).
1.3 Undertaking of ▇▇▇▇▇ ▇▇▇▇▇▇. Immediately upon the effectiveness of this
Agreement and the payment by the TTR Companies of the Back Fees, ▇▇▇▇▇ ▇▇▇▇▇▇
shall transfer to the Company a Philips CDD 2000, Plextor 4.5 speed external CD,
SCSI Card and cables.
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2. Mutual Releases. Upon the issuance of the Shares as in accordance with the
provisions of Section 1.1(ii) hereunder, ▇▇▇▇▇ ▇▇▇▇▇▇ does hereby absolutely and
unconditionally release and forever discharge each of the TTR Companies, their
respective officers, directors, employees, agents, attorneys, insurers,
successors and assigns from any claims, demands, rights and causes of action and
damages, whether liquidated or unliquidated, absolute or contingent, known or
unknown, arising prior to or concurrent with the date hereof, including
specifically, but without limiting the generality of the foregoing, any and all
claims ▇▇▇▇▇ ▇▇▇▇▇▇ could have asserted against the TTR Companies.
Upon the issuance of the Shares as in accordance with the provisions of
Section 1.1(ii) hereunder, each of the TTR Companies does hereby absolutely and
unconditionally release and forever discharge ▇▇▇▇▇ ▇▇▇▇▇▇, his heirs,
executors, beneficiaries, counsel and assigns from any claims, demands, rights
and causes of action and damages, whether liquidated or unliquidated, absolute
or contingent, known or unknown, arising prior to or concurrent with the date
hereof, including specifically, but without limiting the generality of the
foregoing, any and all claims the TTR Companies could have asserted against
▇▇▇▇▇ ▇▇▇▇▇▇.
3. Confidentiality. Each of ▇▇▇▇▇ ▇▇▇▇▇▇ and the TTR Companies hereby undertakes
(i) to keep confidential and (ii) not to disclose to any party - any and all
matters relating to this Agreement and the Lawsuit, unless required by
applicable law, the Act, the Securities Exchange Act of 1934, as amended, or
relevant regulations. ▇▇▇▇▇ ▇▇▇▇▇▇ acknowledges that this provision is
fundamental to the TTR Companies and that without it the TTR Companies would not
enter into this Agreement. ▇▇▇▇▇ ▇▇▇▇▇▇ acknowledges that any actual or
threatened violation of this restriction set forth in this section 3 may cause
irreparable harm to the TTR Companies to which there may be no adequate legal
remedy in damages. In the event of an actual or threatened violation of the
foregoing restrictions, each of the TTR Companies and ▇▇▇▇▇ ▇▇▇▇▇▇ shall be
entitled to temporary and permanent injunctive relief, in addition to any other
remedy available to it under applicable law.
4. Stipulation of Dismissal: Concurrently with the issuance of the Shares in
accordance with the provisions of Section 1.1(ii), the parties, through their
respective counsel, shall enter into and file with the District Court in Tel
Aviv-Jaffa, within twenty four (24) hours of the issuance of the Shares
hereunder, a dismissal of the Lawsuit with prejudice. However, the Court in Tel
Aviv-Jaffa shall expressly retain exclusive jurisdiction over the action for
purpose of enforcing this Agreement, but, unless a Party breaches this
Agreement, this Agreement shall not be filed with the Court.
5. Reliance and Complete Agreement. The parties acknowledge and agree that in
the execution of this Agreement, neither has relied upon any representation by
any party or attorney, except as expressly stated herein. Moreover, this
Agreement shall represent the complete and entire agreement between the parties,
to the exclusion of any and all other prior or concurrent terms, written or
oral.
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6. Modification. The terms of this Agreement may be modified only upon written
consent of the parties.
IN WITNESS WHEREOF, each of the parties has set forth his signature as
of the date first written above.
TTR LTD.
By: ________________
Title:
TTR INC.
By: ________________
Title:
____________________
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