CONSULTING AGREEMENT
CONSULTING AGREEMENT made and entered into this 1st day of March 1, 1997
by and between TTR INC., a Delaware corporation (hereafter "TTR" or the
"Company") and EPHOD ISRAEL GROUP, LLC, a Delaware limited liability company
(hereafter the "Consultant")
W I T N E S S E T H
WHEREAS, the Company is in the business developing and marketing various
software products and components;
WHEREAS, Consultant has experience and expertise in the providing
general financial and investment advice to high-tech companies, including
without limitation, locating and interesting strategic investors, considering
potential acquisition targets for the Company and locating other potential areas
of joint cooperation and development (hereinafter the "Services");
WHEREAS, the Company desires to engage the services of Consultant to
provide the Services;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings of the parties, it is hereby agreed:
1. Engagement & Duties
1.1 The Company hereby engages Consultant and the Consultant agrees to
provide advice and services to the Company regarding the Services as determined
form time to time by the Company. Consultant shall devote such time and effort
to the consulting services hereunder as is necessary and proper for the
fulfillment of Consultant's obligations hereunder.
1.2 Consultant shall report regularly to the President of the Company
with respect to Consultant's activities hereunder.
2. Compensation
2.1 For services rendered hereunder, Consultant shall be entitled to be
paid as a consulting fee the sum of $100,000, payable up-front in one lump-sum
payment upon the signing of this Agreement.
2.2 The Company shall reimburse Consultant for all actual costs and
expenses incurred by Consultant in rendering the consulting services hereunder
in accordance with its general corporate policy in this matter.
2.3 Payment of consulting fees and reimbursable costs and expenses shall
be made only against delivery by Consultant to the Company of requisite tax
receipts or other appropriate documentation thereof.
3. Term & Termination. This Agreement shall commence on March 1, 1997 and shall
terminate on December 31, 1997 unless the parties mutually agree otherwise.
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4. Proprietary Information; Non-Competition
4.1 The term "Information" means any and all confidential and
proprietary information including but not limited to any and all specifications,
formulae, prototypes, software design plans, computer programs, and any and all
records, data, methods, techniques, processes and projections, plans, marketing
information, materials, financial statements, memoranda, analyses, notes, and
other data and information (in whatever form), as well as improvements and
know-how related thereto, relating to the Company or its products. Information
shall not include information that (a) was already known to or independently
developed by the Consultant prior to its disclosure as demonstrated by
reasonable and tangible evidence satisfactory to the Company; (b) shall have
appeared in any printed publication or patent or shall have become part of the
public knowledge except as a result of breach of this Agreement by the
Consultant or similar agreements by other Company consultants or employees; (c)
shall have been received by the Consultant from another person or entity having
no obligation to the Company or (d) is approved in writing by the Company for
release by the Consultant.
4.2 The Consultant agrees to hold in trust and confidence all
Information disclosed to it and further agrees not to exploit or disclose the
Information to any other person or entity or use the Information directly or
indirectly for any purpose other than for its work with the Company.
4.3 The Consultant agrees to disclose the Information only to persons
necessary in connection with its work with the Company and who have undertaken
the same confidentiality obligations set forth herein in favor of the Company.
The Consultant agrees to assume full responsibility for the confidentiality of
the Information disclosed to it and to prevent its unauthorized disclosure, and
shall take appropriate measures to ensure that such persons acting on his behalf
are bound by a like covenant of secrecy.
4.4 The Consultant acknowledges and agrees that the Information
furnished hereunder is and shall remain proprietary to the Company. Unless
otherwise required by statute or government rule or regulation, all copies of
the Information, shall be returned to the Company immediately upon request
without retaining copies thereof.
4.5 Consultant represents and warrants that his receipt of Information
hereunder or use thereof for the purposes of this Agreement shall not violate
any undertaking or obligation of the Consultant to any third party or entitle
any third party to access or right in the Information.
5. Ownership
5.1 'Project Materials' - shall mean any and all works of authorship and
materials developed by the Consultant, its employees, agents in relation to
Services (whether individually, collectively or jointly with the Company and on
whatever media) including, without limitation, any and all reports, studies,
data, diagrams, charts, specifications, pre-contractual and contractual
documents and all drafts thereof and working papers relating thereto, but
excluding consultants ordinary correspondence.
5.2 The Project Materials and the intellectual property rights therein
or relating thereto shall be and remain the exclusive property of the Company
and shall vest in the Company at the time they are first created.
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5.3 In the event and to the extent that any of the Project Materials or
the intellectual property rights therein or relating thereto are deemed for any
reason not to vest in the Company pursuant to this Section 8 then, upon request
by the Company, the Consultant shall forthwith assign or otherwise transfer the
same to the Company free of any encumbrance or compensation to the Consultant.
5.4 At the request and the expense of the Company, the Consultant shall
do all such things and sign all documents or instruments reasonably necessary in
the opinion of the Company to enable the Company to obtain, defend and enforce
its rights in the Project Materials.
5.5 Upon the request by the Company, and in any event upon expiration or
termination of this Agreement, the Consultant shall promptly deliver to the
Company all copies of the Project Materials then in Consultants custody, control
or possession.
5.6 The provisions of this section shall survive the expiration or
termination of this agreement.
6. Warranty
Consultant represents and warrants that on the date hereof it free to be engaged
by the Company upon the terms contained in this Agreement and that there are no
agreements or arrangements restricting full performance of Consultant's duties
hereunder.
7. Force Majeure
7.1 No liability shall result to any Party due to a delay in performance
caused by circumstances beyond the reasonable control of the Party affected,
including, but not limited to acts of God, flood, war, terrorism, embargo,
accident, and governmental laws, or request, or any ruling of a court or
tribunal;
7.2 Each Party affected by an event of force majeure shall (a) promptly
notify the other Party hereto of the expected duration thereof, and its
anticipated effect on the Party effected in terms of the performance required
hereunder; and (b) make reasonable efforts to remedy any such event of force
majeure. Performance that is delayed by any event of force majeure shall be
extended for such time as the event shall continue.
8. General Provisions
8.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and shall not be amended, modified or
varied by any oral agreement or representation or otherwise other than by a
written instrument executed by both parties or their duly authorized
representatives.
8.2 No failure, delay or forbearance by a party in exercising any power
or right hereunder shall in any way restrict or diminish such party's rights and
powers under this Agreement, or operate as a waiver of any breach or
non-performance by either party of any of the terms or conditions hereof.
8.3 If any term or provision of this Agreement shall be declared
invalid, illegal or unenforceable, then such term or provision shall be
enforceable to the extent that a court
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shall deem it reasonable to enforce such term or provision and if such term or
provision shall be unenforceable, such term or provision shall be severed and
all remaining terms and provisions shall be unaffected and shall continue in
full force and effect.
8.4 The terms and conditions of this Agreement supersede those of all
previous agreements and arrangements, either written or oral between the Company
and Consultant relating to the subject thereof.
8.5 Consultant acknowledges and agrees that he is an independent
contractor, is not the agent of the Company and has no authority in such
capacity to bind or commit the Company by or to any contract or otherwise.
Consultant is not, expressly or by implication, an employee of the Company for
any purpose whatsoever.
8.6 This Agreement is personal to Consultant and Consultant shall not
assign or delegate his rights or duties to a third party, whether by contract,
will or operation of law, without the Company's prior written consent.
8.7 Each notice and/or demand given by one party pursuant to this
Agreement shall be given in writing and shall be sent by registered mail to the
other party at its designated address and such notice and/or demand shall be
deemed given at the expiration of seven (7) days from the date of mailing by
registered mail or immediately if delivered by hand. Delivery by facsimile and
other electronic communication shall be sufficient and be deemed to have
occurred upon electronic confirmation of receipt.
8.8 This Agreement shall be interpreted, construed and governed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TTR Inc. Ephod Israel Group LLC
By: _________________ By: ___________________________
