EXHIBIT 10.1
TERMINATION AGREEMENT
AGREEMENT made as of the 24th day of March, 2005 (the "Termination
Agreement") by and between INTERCOMSOFT LIMITED ("Intercomsoft") and SUPERCOM
LIMITED (Israel) ("Supplier").
W I T N E S S E T H :
WHEREAS, Supplier is an Israeli publicly owned corporation whose shares
are traded in the United States on the over-the-counter bulletin board; and
WHEREAS, Intercomsoft and Supplier are parties to that certain Sales
Agreement dated August 25, 1995, as amended May 5, 1998 and July 22, 1998 (the
"Sales Agreement"); and
WHEREAS, Supplier has, for its own business reasons, requested
Intercomsoft to terminate the Sales Agreement, all on and subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein and other
good and valuable consideration, the parties hereto do hereby agree as follows:
1. Incorporation by Reference. The terms and conditions of the Sales
Agreement are incorporated herein by reference thereto. All capitalized terms
which are used but not defined herein shall have the meanings ascribed to them
in the Sales Agreement.
2. Termination. Subject to the terms and conditions of this Termination
Agreement, the Sales Agreement is hereby terminated, effective on the date
hereof.
Supplier hereby acknowledges and confirms that Intercomsoft has
fully complied with all of its obligations under the Sales Agreement through the
date hereof and is not in breach or default of any of the terms or provisions
thereof. Intercomsoft hereby acknowledges and confirms that Supplier has fully
complied with all of its obligations under the Sales Agreement through the date
hereof and is not in breach or default of any of the terms or provisions
thereof. Supplier hereby releases and discharges Intercomsoft, Trimol Group,
Inc. (its parent corporation) and their respective officers, directors,
shareholders, employees and agents, from all claims, causes of action, suits,
proceedings, obligations, liabilities, costs or expenses of any kind whatsoever
from the beginning of time through the date hereof, except for the payable
referred to below. In addition, Supplier hereby agrees to defend, indemnify and
hold Intercomsoft, Trimol Group, Inc. (its parent corporation) and their
respective officers, directors, shareholders, employees and agents, harmless
from and against all claims, causes of action, suits, proceedings, obligations,
liabilities, costs or expenses of any kind whatsoever (including their
respective legal fees) incurred by any of them as a result of or based upon (i)
the execution and delivery by Intercomsoft of this Termination Agreement, (ii)
any breach of any representation, warranty, covenant or obligation of Supplier
under
this Termination Agreement, or (iii) any claim or action by any third party
claiming by or through Supplier as a result of this Termination Agreement, or
otherwise. The parties acknowledge and agree that there are no amounts due or
obligations owing to the other under the Sales Agreement as of the date hereof
(other than a payable by Intercomsoft to Supplier in the amount of $184,912) and
that the Agreement shall be of no further force or effect from and after the
date hereof, except that nothing herein shall impair Supplier's right to receive
payment with respect to such payable. The aforesaid payable of $184,912 will be
paid to Supplier in nine equal monthly installments, the first of which shall be
paid in April 2005.
3. Obligations and Covenants of Supplier. In consideration of
Intercomsoft's agreement to enter into this Termination Agreement, Supplier
hereby agrees, as follows:
(a) Supplier will supply to the Government of the Republic of
Moldova all Equipment, Consumables, Software and Technology requested by Moldova
pursuant to that certain Contract on Leasing Equipment and Licensing Technology
dated April 29, 1996 and terminating on April 29, 2006 by and between The
Ministry of Economics, Republic of Moldova ("Moldova") and Intercomsoft Ltd.
(the "Supply Agreement"), within the time periods, to the extent and as
otherwise required of Supplier under the Sales Agreement as if, for purposes
hereof, the Sales Agreement had not been terminated hereunder. Supplier shall
supply such Equipment, Consumables, Software and Technology directly to Moldova,
but only upon the request of Moldova pursuant to the requirements of the Supply
Agreement, during the term of the Supply Agreement.
(b) Supplier acknowledges that the Supply Agreement is still in
force and effect and Supplier will not take any action, directly or indirectly,
to interfere with the contractual rights of Intercomsoft thereunder or to, in
any way, cause Moldova to terminate or not renew the Supply Agreement.
(c) Supplier will not request or accept any direct payment from
Moldova for any of the Equipment, Consumables, Software or Technology supplied
by it to Moldova pursuant to its aforementioned covenant hereunder and Supplier
will be paid by an entity which has no connection to Intercomsoft (in an amount
not to exceed what Supplier would have otherwise received in payment under the
Sales Agreement) and Intercomsoft shall have no obligation or responsibility to
pay Supplier for any of the foregoing in the absence of a written agreement
between Intercomsoft and Supplier.
4. Non-Compete Termination. Neither Intercomsoft, Trimol Group, Inc., or
any subsidiary or affiliated entity thereof, shall be bound by any non-compete
agreement or provision with Supplier or Supercom from and after the date hereof,
including any such provision under the Sales Agreement.
5. Liquidated Damages. Supplier hereby acknowledges that, but for this
provision, Intercomsoft would not have entered into this Termination Agreement.
In the event that Supplier breaches any of its representations, warranties,
obligations or covenants under this Termination Agreement, Supplier shall be
obligated to and will pay to Intercomsoft, upon demand, a sum equal to (i) the
aggregate of the last twelve payments made to Supplier under the Sales Agreement
(or
pursuant to this Termination Agreement, if applicable), and (ii) all other
damages sustained by Intercomsoft as a result of such breach, such sum to
represent liquidated damages and not as a penalty therefor. The foregoing shall
not constitute an exclusive remedy for any breach or default of this Termination
Agreement by Supplier.
6. Due Authorization. This Termination Agreement has been duly authorized
by all required action of the parties hereto and represents a valid and binding
obligation of the parties hereto, enforceable in accordance with the terms
hereof.
Each of the parties hereto has been represented by counsel in
connection with the negotiation, execution and delivery of this Termination
Agreement. In the event that Intercomsoft is required to institute any action or
proceeding to enforce the terms and provisions of this Termination Agreement,
Supplier will reimburse Intercomsoft for all costs and expenses incurred by it
in connection therewith, including Intercomsoft's counsel fees.
7. Miscellaneous. This Agreement (i) constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, among
the parties hereto with respect to the subject matter hereof, (ii) may not be
modified or waived except pursuant to a written instrument signed by the party
to be bound thereby, (iii) shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, (iv) shall
be governed by and construed in accordance with the internal laws of the State
of New York and shall be enforceable solely in the Federal and state courts
located in New York County (or any other court of competent jurisdiction
selected by Intercomsoft), (v) shall not be assignable by either of the parties
hereto without the written consent of the non-assigning party, (vi) shall, if
any term or provision hereof shall be determined to be unenforceable, remain
valid and in full force and effect with respect to all other provisions of this
Agreement not affected by such unenforceable provision or provisions, and (vii)
may be executed in one or more counterparts, each of which, when executed and
delivered, shall be deemed an original, but all of which when taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the day and year first above written.
WITNESS: INTERCOMSOFT LIMITED
Yaron Kotick By: Yuri Benenson
Chief Executive Officer
WITNESS: SUPERCOM LIMITED (ISRAEL)
Yossi Wejman By: Eli Rosen
Chairman