Exhibit 99.1
Company Confidential
REPRESENTATION AGREEMENT
Made on the day of , 2008 by and between Medis
---------- ---------------
Technologies Ltd having its principal office at 000 Xxxxx Xxx XXX, XX 00000
(hereinafter referred to as the "Company") and Rising Suns Holdings Inc., having
its principal office at 000 Xxxxxxxx Xxxx Xxxxxxxxx, XX 00000 (hereinafter
referred to as the "Representative").
Whereas, the Company has developed its 24/7 Power Pack for charging various
hand held electronic devices, and has received UL Certification and Special
Certification (SP -14504) from the US Department of Transportation for air
travel for said 24/7 Power Pack, (the "Product"); and
Whereas, Representative declares that it has various business connections
with companies who would be potential customers for the Product and that he is
ready to promote such product to those potential customers and to assist the
Company to the best of his abilities to enter into sales agreements with such
potential customers, should the Company wish to do so; and
Whereas, in consideration for the abovementioned services the Company is
willing to pay Representative a fee in the amount and on the conditions all as
set forth in this Agreement.
Therefore it is hereby agreed as follows:
1. Preamble
1.1. The preamble to this Agreement forms an integral part of this Agreement.
1.2. Headings preceding the text and clauses hereof have began inserted solely
for convenience and reference and shall not be construed to affect the
meaning, construction or effect of this Agreement.
2. Definitions
In this Agreement the following terms shall have the meaning ascribed thereto in
this Section 2.
2.1. "Customers" shall mean companies listed on Annex 1 to this Agreement, which
annex may be updated by the Parties from time to time by signature by both
parties of an amended Annex 1 hereto. The Company reserves the right to
delete a company from the list of Annex 1 if a sale to such company has not
been affected within 12 months of said company being included in Annex 1.
2.2. "Payment" shall mean the non-refundable receipt by the Company from the
Customer under Orders/Sales Agreements of the purchase price for the
Products ordered thereunder.
2.3. "Effective Date" shall mean April 1, 2008.
2.4. "Product" shall mean the Companies' 24/7 Power Pack as described in the
Preamble hereto.
2.5. "2nd Generation Product" shall mean improved or modified versions of the
Product which provides portable charging power to handheld electronic
devices.
2.6. "Other Products" shall mean other fuel cell products which the Company may
develop during the term of this Agreement.
3. Term of the Agreement
This Agreement shall be valid for a term of 72 months from the Effective
Date, unless extended by written agreement of the Parties for an additional
period. At the end of the term the parties will meet to discuss the
possibility and terms for an extension of the term which would take effect
only upon signature of an Extension Amendment by both parties hereto.
4. Services of the Representative
(A) The Representative shall advise the company on an exclusive basis, in
connection with marketing the Product to the Customers.
(B) The Representative undertakes to act with all due diligence and good
faith in order to promote the sale of the Product to the Customers.
Representative will not, during the term of this Agreement and at least 6
months thereafter, directly or indirectly promote for sale products which
are competitive with the Product. The Representative declares and warrants
that it is free to contract with the Company to perform the services
contemplated by this Agreement and that such contract or performance
thereunder will not violate any agreement, fiduciary obligation, or
restrictions to which the Representative may be subject.
(C) The Company may refuse to discuss or negotiate any proposed transaction
with any Customer for any reason whatsoever, and may terminate negotiations
and/or agreements with any party at any time at its own discretion with no
liability to the Representative. The Company will have exclusive authority
to determine the contractual terms and conditions to be included in all
sales contracts with Customers.
5. Remuneration
(A) The Representative will be entitled to * per Product purchased by a
Customer as compensation with respect of the Payments received by the
Company from the sales of the Product and/or 2nd Generation Products to
Customers during the term of this Agreement.
The Company shall pay the fee to the Representative within 30 days of
receipt by the Company of the applicable Payment from the Customer. Payment
shall be made in US Dollars to a bank designated in writing by the
Representative to the Company.
* Subject to a request for confidential treatment; Separately filed with the
Commission.
(B) The Company agrees not to directly market the Product or 2nd Generation
Products to Customers without Representative's agreement and not to appoint
other third party agents or marketing representatives of the Company to
market the Product to the Customers. The Company agrees that during the
term of this Agreement all bona fide inquiries and orders received by the
Company from Customers will be referred to Representative. Notwithstanding
the previous two sentences, it is understood that the Company may enter
into agreements with third party companies to act as distributors of the
Product and this Agreement and the restrictions on and/or remuneration
obligation of the Company hereunder applies only to sales made directly by
the Company to the Customers, and any sales of the Product by such third
Party company distributors is specifically excluded.
(C) The fee to be paid to Representative pursuant to the terms and
conditions of (A) and (B) above constitute the full and complete
consideration due to Representative in connection with this Agreement, and
include full compensation and reimbursement for any and all obligations,
expenses, charges and costs of whatever nature incurred and/or to be
incurred by Representative.
(D) The Company agrees that during the Term of this Agreement it will
inform Representative of new Other Products in development by the Company
and, unless precluded by third party agreements, the Company will negotiate
in good faith with Representative to have such Other Products included
under this Agreement with respect to Customers who have purchase Products
or 2nd Generation Products from the Company. Furthermore, the Parties will
investigate opportunities for Representative to promote transactions with
Customers for such Customers investment or strategic participation in the
development of Other Products with the Company.
6. Secrecy.
The Representative undertakes that during the period of the Agreement and
for a period of 1 year thereafter he shall not disclose any information
learned by him during the course of his business dealings with the company
where such information is in the nature of a trade secret or business
sensitive information.
7. Miscellaneous
(A) Any claim between the parties shall be decided according to the law of
the State of New York.
(B) This Agreement may not be assigned without prior notice by either
party, and subject to the mutual consent and written approval of any such
assignment.
(C) This Agreement constitutes the complete understanding between the
parties, unless amended by a subsequent written instrument signed by the
Parties.
(D) Representative and/or any of its employees and/or any other person
acting on its behalf, is acting herein solely as an independent contractor
and not as an agent, representative, and/or employee of the Company, the
Company's parent or affiliates.
Representative has no authority to incur any liability on behalf of the
Company or any parent or affiliate of the Company or in any way to pledge
the Company or its parent or affiliates credit and/or to submit or accept
on behalf of the Company or its parent or affiliates any proposal, contract
and/or offer and the Representative and will not be responsible in any
manner for payments to suppliers and/or agents and/or distributors and/or
Customers.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS
AGREEMENT OR SERVICES OR MATERIALS PROVIDED HEREUNDER, OR FOR LOSS OF
BUSINESS OR PROFITS OR OTHER COMMERCIAL LOSS, HOWEVER CAUSED, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(E) A waiver by either party of any term or condition of this Agreement in
one instance shall not be deemed or construed to be a waiver of such term
or condition for any similar instance or of any subsequent breach. All
rights, remedies, undertakings and obligations herein are cumulative.
(F) The addresses for the parties shall be as set out in the introduction
to this agreement. Any notice sent by registered post to one of the above
addressees shall be regarded as having reached its destination within 3
days from the date of dispatch if sent by registered post and if by fax at
the moment of dispatch.
IN WITNESS WHEREOF the parties have signed here below:
Medis Technologies Ltd. Rising Sun Holdings Inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Ranga C. Krishna
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Ranga C. Krishna
----------------------------- -----------------------------
Date: 4-2-08 Date: 4-2-08
----------------------------- -----------------------------
By: By:
----------------------------- -----------------------------
Name: Name:
----------------------------- -----------------------------
Date: Date:
----------------------------- -----------------------------
10019311\V-3
ANNEX I
1. *
2. *
/s/ R.C. Krishna
------------------------
R.C. Krishna
* Subject to a request for confidential treatment; Separately filed with the
Commission.
