Exhibit 10.48
ISRAEL IN-COUNTRY REPRESENTATIVE AGREEMENT
This agreement ("Agreement") is entered into this 2nd day of March 2000, by and
between ATM Service, Ltd., a New York corporation ("ATM"), having its usual
place of business at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000, and MG Capital
(MG) having its usual place of business at 00 Xxxx Xx., Xxxx Xxxx, Xxxxxx 00000
Israel.
WHEREAS, ATM is in the business of creating and operating internet based
business to business portals that provide a platform for clients who wish to
optimize their return on existing products, services, items of value,
advertising, merchandise, real estate and assets of all types, surplus,
closeouts, discontinued product lines or excess in available capacity and/or
production time.
WHEREAS, ATM and MG desire to enter into a representation agreement for an ATM
office in Israel.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
I. FORMATION AND OPERATION:
A. MG and ATM hereby agree to create an in-country representation in
Israel of ATM Service Ltd. B. All business of ATM Israel shall be
conducted under the name and style of ATM Service, Ltd.
C. The parties hereto recognize that the words ATM Service Ltd.,
ATM, XXXXxxxxx.Xxx or any of its uses or variations, are the
trade names, trademarks and sole property of ATM Service Ltd.
D. In the event of the termination of the representation, or the
disassociation of ATM from the representation for any reason, all
rights to use the name or any form of ATM by MG shall cease the
day that the representation agreement is terminated.
E. MG as representative shall solely be in the business of engaging
in programs of selling the then current Internet based services
provided by ATM Service Ltd. ATM recognizes that MG is a
pre-existing company, with existing lines of businesses. For the
purposes of this agreement, ATM acknowledges that MG will
continue to engage in its pre-existent businesses since they do
not carry a conflict of interest. MG agrees not to enter into any
e-business that may create a conflict of interest in its
relationship with ATM.
F. MG shall receive twenty (25%)[sic] of ATM's gross profits in the
different Revenue Share Agreements (to be introduced by you and
entered into by ATM with other parties in Israel) and or for any
merchandise acquired under such
//MG// //WR//
agreements or independently of any such agreements. This
percentage may be amended by mutual agreement from time to time.
Should ATM elect to enter into a JV or Master Distributor
agreement in Israel with a third party not introduced to ATM by
you, you shall not be entitled to a share of gross profits, or
otherwise, as stated above. Payments to you for "in kind"
transactions are to be 10% of the gross profit dollars realized
by ATM, if sold, and no fee if the products and services are not
sold and are used to operate the business or to offset technology
"cost" transfers. Fee Structure attached.
G. For the purpose of defining "gross profits" it shall be the
difference between (x) the sale proceeds realized, less direct
costs such as, among others, shipping, warehousing, cost of
financing, cost of technology implementation and commissions to
third parties, if any and (y) the amounts remitted to suppliers
(i.e. the cost of goods), on a transaction basis, initiated and
completed during the term of the representation. By calculating
gross profits on all transactions were [sic] there is a gross
profit, and the amount of your rights to gross profit will not be
reduced by transactions were [sic] there is not a gross profit.
H. When the revenue is paid in product, ATM will pay MG its share as
stated above, when the products are sold by ATM 10 days net after
collection of any funds due to ATM whether for inventory or
non-inventory related transactions.
I. MG daily operations in Israel shall be under MG's direction and
control.
J. MG business development strategy, all major business decisions
and all decisions concerning employment of employees or use of
finders or agents shall be made jointly by MG and ATM, which
consent may be withheld by ATM for any reasons.
K. MG shall assign office space, staff, secretarial and other
services, office equipment and communications to conduct the
representation in an effective way.
L. The term of the representation shall be at least one (1) year,
commencing as of the date hereof, and shall automatically renew
itself every year, unless otherwise terminated by either party
upon sixty (60 days prior written notice, subject only to MG not
achieving the goals set forth in the business plan attached as
Annex A).
II. MG AGREEMENT WITH ATM
A. ATM shall upon the request of MG promptly provide the
representative with: (1) office sales assistance and sales
support; (2) fulfillment and assistance with trades by making its
inventory and supply channels fully available; and (3) such other
cooperation and assistance as may reasonably be requested.
//MG////WR//
B. ATM and MG shall each assume obligation for their own expenses
including but not limited to the following:
(1) Rental payments of the office space
(2) All pre-business expenses attributable to the
representation
(3) Cost and expenses of a secretary and/or
office/administrative staff
(4) Furniture, fixtures, and other office equipment such as
computers, copy machine and other office equipment
(5) Telephone system inclusive of installation and monthly
billing charges
(6) Office supplies
(7) All travel and entertainment expenses
(8) Generally all other operating expenses normally incurred
in running a business
C. ATM may make use of the MG offices, for the conduct of ATM
business while visiting Israel at no charge, if needed or
desired, and MG may make use of ATM offices in New York at no
charge, while visiting the US.
D) Within your in country Rep Agreement should ATM enter into a JV
partnership or Master Distributor with someone in your country
ATM may require a marketing and or operating budget to be
provided. If we do and it is to be provided it will be the desire
of ATM to use your status and organization as our entity in your
country to assist in the JV or Master Distributorship
development. If accepted and agreed to by the JV or Master
Distributor we will advise you of such and it will be your option
at that time to take the appointment and to operate with a budget
to be prepared and provided be either ATM or the JV / Master
Distributor or both. All other terms and conditions would remain
the same except that your percentage would be diluted by the
structure of the Master Distributor or JV agreements and
percentages thereof.
III. ACCOUNTING AND FINANCIAL RECORDS
A. (1) Separate books of account for the representative office and
all matters pertaining to it shall be kept and maintained at the
principal office of MG and ATM. All records shall be open for
audit by ATM and MG at all reasonable times. (2) A separate
accounting with financial records and other relevant
documentation inclusive of all applicable discounts and rebates
shall be given by ATM to MG, upon request, for all transactions
between ATM and MG introduced transactions.
//WR// //MG//
IV. TERMINATION FOR CAUSE
If ATM or MG fails to honor any of its material obligations hereunder
after thirty (30) days prior written notice during which any such
condition may be cured; and/or if ATM or MG is the subject of a
voluntary or involuntary bankruptcy petition, reorganization, creditors
composition or similar proceeding, then such an occurrence shall
constitute an Event of Default. Upon the occurrence of an Event of
Default, the non-defaulting party may declare in writing that the
relationship and agreement is Terminated for cause. Upon such a
declaration of termination for cause, the agreement is thereby
immediately terminated. Termination of the agreement shall not
otherwise effect any rights and obligations which have accrued in
transactions closed prior to termination which shall entitle M.G. to be
paid for as long as ATM does business with the account introduced to
ATM by M.G. and that ATM concluded a successful transaction with. Not
achieving the goals set forth in the business plan attached, unless
waived by ATM, will provide cause for termination.
V. GENERAL PROVISIONS
A. Nothing herein shall be construed to create a general partnership or
joint venture between the parties or to authorize or to permit either
party to bid for of to undertake any other contracts for the other
party.
B. Neither this agreement nor any interest of the parties herein
(including any interest in monies belonging to or which may accrue to
the office in connection with its business) may be assigned, pledged,
transferred or hypothecated, without the prior written consent of the
parties thereto.
C. Each party hereto agrees to deal fairly and in good faith with the
other in carrying out the terms and provisions hereof.
D. Neither party shall have the right to borrow money on behalf of the
other party, or to use the credit of the other party for any purpose.
E. ATM warrants and represents that:
(1) It has full power and authority to enter into and perform this
agreement in accordance with its terms.
(2) MG is a corporation duly organized, validly existing and in good
standing under the laws of Israel.
(3) The execution, delivery and performance of this agreement have
been duly authorized by all requisite corporate actions of said
corporation.
G. MG and all employees agree that during the existence of
//WR// //MG//
this Agreement neither MG nor any entity, with which any of them is
affiliated, shall compete with the business of the ATM office in
Israel.
H. Any and all notices, requests, demands or other relevant
communications hereunder shall be in writing and shall be deemed
given if sent by Certified Mail, postage prepaid, return receipt
requested, to each of the parties at the following addresses, or to
such addresses as may from time to time be designated by any of them
in writing by notice similarly given to all parties in accordance
with this paragraph.
ATM Service Ltd. MG Capital Ltd.
Attention: Xxxxxx Xxxxxxxxx 00 Xxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000 Israel 48091
I. This Agreement constitutes the complete agreement and understanding
between the parties hereto with respect to the matters set forth
herein, and supersedes and terminates any and all prior and existing
agreement or understandings between and of the parties hereto. No
alteration, assignment, amendment or modification of any of the terms
and provisions of this Agreement shall be valid unless made pursuant
to an instrument in writing hereto signed by each of the parties
hereto. The failure of any party hereto at any time or times to
require performance of any provision hereof shall in no manner affect
the right of such party at a later date to enforce same. No waiver by
any party of any conditions, or of the breach of any provision,
terms, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, shall be deemed to be
construed as a further or continuing waiver of any such condition or
of the breach of any other provisions, terms, covenant,
representation or warranty of the Agreement.
J. This agreement and all matters thereto shall be governed exclusively
by the laws of the State of New York and the parties agree to
jurisdiction in the courts of New York. Any dispute arising out of or
relating to the making or performance of this Agreement shall be
resolved by arbitration before the American Arbitration Association
under its Commercial Arbitration Rules, and the arbitrators shall
render their decision strictly in accordance with all the provisions
of this Agreement.
//WR// //MG//
IN WITNESS, WHEREOF, the parties have signed this Agreement
the day and year first written above written.
ATM SERVICE LTD. MG
By //s// XXXXXX XXXXXXXXX By //s// XXXXX XXXXX
------------------------ -------------------------
Xxxxxx Xxxxxxxxx Xx. Xxxxx Xxxxx
Chairman President & CEO
WR/rc
