ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors and Executive Officers
1) Our director, executive officers, significant employees, significant
consultants and control persons as of April 9, 2004 were as follows:
NAME AGE POSITION POSITION SINCE
---------------------------- -------------------------- -------------------------- --------------------------
Andrew Benson 48 President and Sole 1999
Director
Thomas A. Stroup 49 Consultant and Member of 2003
the Advisory Group
George Giagtzis 51 Consultant 2004
Dr. Michael Polk 56 Consultant and Member of 2003
the Advisory Group
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15
Dan Ference 54 President and Director, 2003
North Electric Company
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Each person will hold his position until the next annual meeting of the
shareholders or until his successor is duly elected and qualified.
Andrew Benson, President and Sole Director
Mr. Benson has served as our president and sole director since January 1999. Mr.
Benson was formerly the president and chief executive officer of Video Sentry
Corporation, a business that developed and manufactured the SentryVision CCTV
System. Video Sentry Corporation was founded and incorporated in 1990,
introduced its line of SentryVision systems into the marketplace in 1992 and
ultimately launched an initial public offering in October 1994.
VideoSentry Corporation was merged with Knogo North America in February 1997,
forming a new corporation named Sentry Technology Corporation. Mr. Benson worked
with Sentry Technology Corporation as a consultant from February 1997 to
December 1998. In 1998, Mr. Benson joined Georgetown Ventures LLC, which funded
our formation in January 1999.
Thomas A. Stroup, Consultant and Member of the Advisory Group
Mr. Stroup serves as a consultant to us and provides guidance to the chief
executive officer. Since 2000, he has served as chairman of the board of
directors and chief executive officer of GroupServe, Inc. in Arlington, VA.
GroupServe, Inc. licenses its intellectual property developed for use by
providers of collaboration tools and discussion groups. Mr. Stroup also
co-founded NuRide, Inc., of Sterling, Virginia, a transportation demand and
management solution enterprise, focused on the reduction of traffic congestion
and automobile emission issues.
From 1997 to 2000, Mr. Stroup was president and chief executive officer of P-Com
Network Services, Inc., an international telecommunications service-provider
that designed and built systems in the United States, the United Kingdom and
Italy. Before P-Com Network Services, Mr. Stroup was the founder, president and
chief executive officer of Columbia Spectrum Management, a wireless
telecommunications consulting and negotiating firm. Mr. Stroup also served as
president of the Personal Communications Industry Association. Mr. Stroup
currently serves on the board of directors of the Virginia Center for Innovative
Technology, GroupServe, NuRide, and WhamTech. Mr. Stroup holds a B.S., summa cum
laude, in Public Administration from the University of North Dakota. He is also
a graduate of Georgetown University Law Center, where he served as editor of the
Georgetown Law Journal.
George Giagtzis, Consultant
George A. Giagtzis has over 25 years experience in fast growth information
technology, telecommunications, and internet projects and has held management
positions in business development, financial operations, marketing,
mergers/acquisitions, network deployment, and strategic planning with ROLM, IBM,
Sprint, and Global One. He is managing director of The AxeaGroup LLC, a
telecommunications and internet consulting and financial advisory firm he
founded in 1998 that focuses on domestic and international mergers and
acquisitions, venture capital formation, internet start-ups, and private and
merchant banking activities in Northern Virginia.
He holds a B.B.A. in Accounting from the University of Houston, an M.B.A. in
International Management from the American Graduate School of International
Management in Arizona, and a post graduate certificate in International Business
from Georgetown University.
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Dr. Michael Polk, Consultant and Member of the Advisory Group
As a member of our Advisory Group, Dr. Michael Polk provides us with general
consulting services. In 1983, Dr. Polk founded Management Resource Systems, an
international consulting firm specializing in human resources. Since then, Dr.
Polk has been retained by organizations in the telecom, computer, medical
instrumentation, financial services and construction sectors, ranging from
startups to international conglomerates. He was a founding board member of
Applied Data Systems and currently serves on the board of directors of
Tours.Com, Targeted Response Advertising, Dental+Medical and The Gilbergroup.
Prior to founding Management Resource Systems, Dr. Polk held executive human
resource positions at United States Leasing Corp. and Hilti, Inc. Dr. Polk holds
degrees from Yale University, The University of Georgia and the University of
Southern California.
Dan Ference, President and Director, North Electric Company
Mr. Ference was appointed director of North Electric Company, effective March
2003. He has served as the president of North Electric Company from September
2001 through the present. Mr. Ference has over 27 years experience in the
communications industry with various voice and data products and technologies,
including almost 20 years of managing research and development programs and
centers. From May 1994 to June 2001, Mr. Ference was vice president of Fujitsu
Network Communications' Raleigh, North Carolina Development Center, where he was
responsible for overall Development Center Operations and the Network Management
and related Network Element development programs. Prior to this, his career
included serving at Bell Laboratories, ITT Network Systems, CIT - Alcatel, and
Nortel, Inc. Mr. Ference holds a B.S. degree from Penn State University and an
M.S. degree from Ohio State University both in Electrical Engineering.
Advisory Group
In August 2003, we established an Advisory Group to provide us with advisory
services relating to financing and the development and commercialization of our
products. In addition, the members assist our chief executive officer in the
strategic direction and tactical execution of our day-to-day operations. In
exchange for their services as members of the Advisory Group, we have issued
options to purchase 2.5 million shares of our common stock to Dr. Polk, options
to purchase 5 million shares of our common stock to Mr. Stroup and options to
purchase 2 million shares of our common stock to Mr. Gilberg who is no longer
a member of our advisory group. We also pay Mr. Stroup $20,000 per month in
exchange for his services as a member of the Advisory Group.
The members of the Advisory Group are Andrew Benson, Thomas A. Stroup and
Dr. Michael Polk.
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Audit Committee and Audit Committee Financial Expert
We do not have a standing audit committee. Our sole director performs the
functions usually designated to an audit committee. Accordingly, we do not have
an audit committee financial expert. As we generate revenue in the future, we
intend to identify and appoint a financial expert to serve on our audit
committee.
Code of Ethics
Due to a lack of adequate resources, we have not yet adopted a code of ethics.
Prior to the adoption of a code of ethics, our management intends to promote
honest and ethical conduct, full and fair disclosure in our reports to the SEC,
and compliance with applicable governmental laws and regulations.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
3.1.1 Restated Certificate of Incorporation, as filed with the New York
Department of State on August 4, 2000 filed as exhibit 3.1.1 to the Form SB-2
dated August 6, 2003 and incorporated herein by reference.
3.1.2 Certificate of Exchange of Shares, as filed with the New York Department
of State on August 4, 2000 filed as exhibit 3.1.2 to the Form SB-2 dated August
6, 2003 and incorporated herein by reference.
3.1.3 Certificate of Amendment, as filed with the New York Department of State
on September 7, 2000 filed as exhibit 3.1.3 to the Form SB-2 dated August 6,
2003 and incorporated herein by reference.
3.1.4 Certificate of Amendment as filed with the New York Department of State
on August 7, 2002 filed as exhibit 3.1.4 to the Form SB-2 dated August 6, 2003
and incorporated herein by reference.
3.1.5 Certificate of Amendment as filed with the New York Department of State
on December 31, 2002 filed as exhibit 3.1.5 to the Form SB-2 dated August 6,
2003 and incorporated herein by reference.
3.1.6 Certificate of Amendment as filed with the New York Department of State
on May 12, 2003 filed as exhibit 3.1.6 to the Form SB-2 dated August 6, 2003 and
incorporated herein by reference.
3.2 By-Laws filed as exhibit 3.2 to the Form SB-2 dated August 6, 2003 and
incorporated herein by reference.
10.1 Subscription Agreement to purchase 1,000,000 shares of the registrant's
common stock between the registrant and Lawrence A. Rybacki dated July 15, 2003
filed as exhibit 10.1 to the Form SB-2/A dated February 27, 2004 and
incorporated herein by reference.
10.2 Subscription Agreement to purchase 750,000 shares of the registrant's
common stock between the registrant and Leroy S. Bren dated July 17, 2003 filed
as exhibit 10.2 to the Form SB-2/A dated February
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27, 2004 and incorporated herein by reference.
10.3 Letter Agreement, Dated August 1, 2003, by and among DataMEG and AMT
Management Co filed as exhibit 10.3 to the Form SB-2/A dated February 27, 2004
and incorporated herein by reference.
10.4 Amendment to Original Agreement, dated November 18, 2003, by and among
DataMEG Corp. and AMT Management Co filed as exhibit 10.4 to the Form SB-2/A
dated February 27, 2004 and incorporated herein by reference.
10.5 Consulting Agreement, dated January 15, 2004, by and among DataMEG and
Michael Mitsunaga filed as exhibit 10.5 to the Form SB-2/A dated February 27,
2004 and incorporated herein by reference.
10.6 Settlement Agreement And Mutual Release, dated as of February 12, 2004,
by and among DataMEG and Rex Hestor filed as exhibit 10.6 to the Form SB-2/A
dated February 27, 2004 and incorporated herein by reference.
10.7 Rex Hester Stock Lock-up Agreement, dated as of January 2004 filed as
exhibit 10.7 to the Form SB-2/A dated February 27, 2004 and incorporated herein
by reference.
10.8 DataMEG Corp. Option Agreement, dated January 1, 2004, by and among
DataMEG and Andrew Benson filed as exhibit 10.8 to the Form SB-2/A dated
February 27, 2004 and incorporated herein by reference.
10.9 Consulting Agreement, dated September 1, 2003, by and among DataMEG and
Thomas Stroup filed as exhibit 10.9 to the Form SB-2/A dated February 27, 2004
and incorporated herein by reference.
10.10 Consulting Agreement Amendment, dated December 1, 2003, by and among
DataMEG and Thomas Stroup filed as exhibit 10.10 to the Form SB-2/A dated
February 27, 2004 and incorporated herein by reference.
10.11 Consulting Agreement Amendment, dated February 7, 2004, by and among
DataMEG and Thomas Stroup filed as exhibit 10.11 to the Form SB-2/A dated
February 27, 2004 and incorporated herein by reference.
10.12 Exclusive Distribution Agreement, dated January 1, 2004 by and among
North Electric Company, Inc. and International Network Technology, Ltd.
21.1 Subsidiaries of the registrant
31.1 Certification of the Principal Executive Officer and the Principal
Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 Certification of the Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Reports on 8-K
On December 1, 2003, we filed a report on Form 8-K announcing the execution of a
product-distribution agreement.
On December 4, 2003, we filed a report on Form 8-K announcing an agreement with
AMT Holdings to receive additional funding.
On December 8, 2003, we filed a report on Form 8-K clarifying the details
regarding an erroneous
22
non-compliance designation appearing next to our stock symbol.
On December 17, 2003, we filed a report on Form 8-K announcing the a key
consultant to use had renewed his contract.
On December 31, 2003, we filed a report on Form 8-K announcing that we had
received the balance of the $1,000,000 funding agreement from AMT Management,
Inc.
Exhibit 10.12
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT (the "Agreement") is made and entered
into this 1st day of January, 2004 (the "Effective Date"), by and between:
NORTH ELECTRIC COMPANY, INC., a North Carolina
corporation duly organized under law and having
an usual place of business at 6131 Falls of
Neuse Road, Suite 205, Raleigh, NC 27609
(hereinafter referred to as "NECI"),
AND
International Network Technology Ltd., a Hong
Kong corporation duly organized under law and
having an usual place of business at 610 Lippo
Sun Plaza, 28 Canton Road, Tsimshatsui,
(hereinafter referred to as the "DISTRIBUTOR").
RECITALS
WHEREAS, NECI is in the business of researching, developing, marketing and
selling a suite of network assurance products and supplies (software and
hardware), for the telecommunications industry; and
WHEREAS, Distributor is a telecommunications company with operations and
facilities throughout the Pacific Rim (as hereinafter defined); and
WHEREAS, Distributor is in the business of selling and marketing products
similar to NECI's products and supplies, and the Distributor wishes to be
appointed as the exclusive distributor of NECI's products and supplies in the
Pacific Rim and NECI is willing to make such appointment in accordance with the
terms of this Agreement.
NOW, THEREFORE, in consideration of the payments to be made herein and the
mutual covenants and promises herein contained, the receipt and sufficiency of
which is hereby acknowledged, accepted and agreed to, the parties, intending to
be legally bound, hereby agree as follows:
Page 1 of 17
ARTICLE 1: DEFINITION
As used in this Agreement, the following words shall have the following
meaning:
(a) EFFECTIVE DATE: First date noted above
(b) TERM: A four (4) year period commencing with the
Effective Date and concluding in December 31,
2007.
(c) PRODUCTS All software and hardware products and
supplies, and accessory and related items as
set forth and identified on Exhibit "A"
annexed hereto and made a part hereof as if
set out verbatim (collectively, the
"Products").
(d) PARTY: A signatory to this Agreement, and affiliates
owned or controlled by or in common control
with a signatory to this Agreement and the
successors or assignees of any such signatory
of affiliates, wherever located.
(e) PERSON: Any individual, partnership, firm,
corporation, association, government, or any
other organization or entity.
(f) TERRITORY: The Countries of: China PRC, Hong Kong,
Macau, Singapore, Malaysia, Vietnam, Laos,
Cambodia, Thailand, India, South Korea,
Japan, Taiwan, Brunei, Indonesia,
Philippines, PNG, Australia and New Zealand
(collectively, the "Territory" or "Pacific
Rim").
ARTICLE 2: DISTRIBUTION RIGHTS
2.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
NECI hereby appoints Distributor, and Distributor hereby accepts its
appointment, as NECI's exclusive distributor for the sale of Products in the
Territory. Distributor shall have the right to engage sub-distributor(s) with
regard to distribution of the Products and such sub-distributor(s) shall be
governed by the terms of this Agreement.
Page 2 of 17
2.2 NO DIRECT SALES IN THE TERRITORY. During the Term of this Agreement,
NECI will not sell, transfer, or otherwise make available Products for delivery
or use in the Territory, nor shall NECI sell, transfer or otherwise make
available Products to any Person who NECI knows, intends to sell, transfer or
otherwise make available such Products for delivery or use in the Territory.
NECI shall promptly refer to Distributor any and all inquiries NECI receives
from a Person or inquiries relating to a sale or transfer of the Product in or
into the Territory.
ARTICLE 3: DUTIES OF DISTRIBUTOR
3.1 BEST EFFORTS. Distributor shall use its best efforts to develop and
promote markets for, and to sell, the Products in the Territory.
3.2 NON-COMPETITION; PROMOTIONS; ETC. During the Term of this Agreement,
the Distributor shall at its expense:
(a) Advertise and promote the Products in the Territory in a best
efforts and appropriate means, including but not limited to,
participation in relevant trade fairs, public demonstrations of
the Products, prompt and effective responses to trade and
customer inquiries and regular visits to customers and,
potential customers. If Distributor intends to utilize any of
NECI's logos or trademarks, the Distributor shall first provide
NECI with a copy of the presentation and obtain NECI's written
consent to use such presentation. Distributor (or any of its
sub-distributors) shall be solely responsible for its own
expenses connected with the promotion and sale of the Products,
including but not limited to, wages, salaries, commissions and
expenses directly or indirectly related to advertising, trade
shows, exhibitions and promotional activities;
(b) Maintain a suitable sales and service organization in each
country constituting the Pacific Rim with a sufficient number
of properly trained personnel to enable Distributor to
discharge the duties undertaken by it;
(c) Maintain a laboratory for customer demonstrations, training,
and for use in reproducing, analyzing, and correcting customer
problems which laboratory shall contain at least one of each of
the Products as listed on Exhibit A (the delivery, costs and
payment of which shall be determined by the parties hereto
after good faith negotiations); and
Page 3 of 17
(d) Prepare a marketing plan ("Plan") and to update the same at
least yearly. The Plan shall contain, at a minimum,
Distributor's best efforts to compile information on
competitive products; estimated sales volume; anticipated
quantities of the Products to be purchased; governmental
registration requirements; and marketing issues. The Plan shall
be shared with NECI.
3.3 TRAINING; USE OF PRODUCTS. In concern with NECI, Distributor shall
at its own expense establish reasonable procedures to assure that its employees,
subdistributors and other agents are properly trained and that Distributor is
satisfying the requirements of this Agreement. The costs of the training center
and allocation of responsibilities shall be determined by the parties hereto
after good faith negotiations.
3.4 CONFIDENTIALITY. Distributor will take all precautions to protect
confidential information received from NECI and identified by NECI as
confidential ("Confidential Information"). Distributor shall not disclose or
divulge any Confidential Information to any third person, except as required by
a judicial or governmental order. Information in the public domain or prepared
by NECI (or by Distributor with the prior approval of NECI) for the purpose of
distribution to customers or otherwise available, shall not be deemed to be
Confidential Information.
3.5 PROHIBITED SALES AND CONDUCT. Distributor agrees not to sell, and
agrees to use such efforts as are necessary to ensure that Distributor's
sub-distributors and agents do not sell any of the Products outside of the
Pacific Rim. Further, Distributor agrees to present the Products fairly to
potential customers, not to disparage the Products, any Product trademarks or
NECI in any way and to do all things reasonable to promote the reputation of the
Products and the value of any Product trademarks.
3.6 NON-COMPETITION AND EXCLUSIVITY. Distributor agrees that during the
Term of this Agreement, it will not sell or distribute any products, supplies,
or accessory items in the Pacific Rim that are in conflict with any of the
Products that it is selling and distributing pursuant to the terms and
conditions of this Agreement, and Distributor shall exclusively sell and
distribute only the Products.
3.7 NECI AUDIT. At least once every calendar year during the Term, NECI
shall have the right and option (and at its sole loss and expense), upon three
(3) calendar days written notice to Distributor to enter Distributor's premises
and to examine Distributor's written and electronic files and records for the
purposes of conducting an audit of Distributor's activities to ensure compliance
with the terms of this Agreement.
Page 4 of 17
ARTICLE 4: DUTIES OF NECI
4.1 REQUIREMENTS BY DISTRIBUTOR. NECI shall supply Distributor's
requirements for the Products in the Pacific Rim consistent with Distributor's
forecasts of its expected requirements for the Products, with a maximum
lead-time of two (2) months from the day Distributor places an order. If NECI
believes that it will not be able to satisfy Distributor's requirements for the
Products, it shall promptly notify Distributor, specifying the reasons for the
expected delay and its duration at the time the Product order is placed and/or
one month prior to delivery of Product.
4.2 MARKETING SUPPORT. NECI shall:
(a) Provide Distributor with information on marketing and
promotional plans of NECI for the Products as well as copies of
marketing, advertising, sales, technical training manuals and
available teaching and marketing aides and promotional
literature concerning the Products produced by or for NECI;
(b) NECI shall provide the training for Distributors and its agents
and sales personnel as set forth in Exhibit "B" annexed hereto;
(c) NECI shall redirect any enquiries, referrals and information of
existing or potential customers from the Pacific Rim to
Distributor with out delay upon its knowledge of such;
(d) NECI shall back Distributor up in all circumstances on their
relationship and the status of Distributor, advocating and
certifying in all domains Distributor's status positively;
(e) NECI shall maintain the same pricing as promulgated by
Distributor in the Pacific Rim whenever enquiries are received;
(f) For "Defect on Arrival" (DOA), NECI shall provide immediate
replacement;
(g) NECI shall arrange site visits to reference sites in U.S.A., as
may be requested by Distributor, for the purpose of
demonstrating how Products perform in real life situation; and
(h) NECI shall recognize Distributor's effort in localizing its
marketing materials or others for the purpose of marketing
Products in Pacific Rim, through pricing or otherwise.
Page 5 of 17
4.3 TECHNICAL SUPPORT. NECI shall:
(a) provide full technical support to Distributor, through emails
or phone calls, during the Term of this agreement. Scope of
support includes diagnosis, analysis and provision of solution
to problems encountered. The time of such support shall not be
limited to office hours in U.S.A.
(b) NECI shall endeavor to resolve all technical problems as
encountered by Distributor, in relation to Products. In the
event of fundamental design problem, Distributor has the right
to demand for containment action.
ARTICLE 5: PATENTS AND TRADEMARKS
5.1 LIMITED GRANT OF LICENSE. NECI hereinafter grants to Distributor the
limited right and license during the Term, to use, in the Pacific Rim, NECI's
trademarks and any trademark registrations, which NECI obtains and designates
for the Products, but only in connection with sales of the Products in the
Pacific Rim. Such trademarks license shall continue in effect only while
Distributor retains its distribution rights in the Pacific Rim. Distributor
agrees not to remove or obscure any Product label affixed by NECI. Upon the
termination of this Agreement for any reason, Distributor shall immediately
discontinue all uses of such corporate names, trademarks or trade names.
5.2 USAGE. Whatever use Distributor makes of the corporate name, or any
trade names of NECI, if permitted as provided herein, shall be for the exclusive
benefit of NECI and Distributor shall not thereby acquire any rights in, to or
under any such name, trademark or trade name.
ARTICLE 6: SALE OF PRODUCTS
6.1 MINIMUM SALE ESTIMATES FOR PRODUCTS. During the Term of this
Agreement, Distributor shall use its best efforts as set forth in Section 3.2
through 3.6 hereof, to achieve sales and performance estimates to be agreed by
the Parties on or before June 30, 2004 and annexed hereto as Exhibit "C" and
made a part hereof as if set out verbatim ("Sales Levels") and which may be
amended semi-annually thereafter upon the agreement of the Parties. The parties
agree that in reaching the annual Sales Levels they shall negotiate in good
faith with the intention of reaching an agreement and shall consider such
factors as: competition, pricing, Product(s) availability, delivery schedules,
resistance in the marketplace and the like. In the event of such agreement
cannot be reached, NECI shall supply Products to Distributor on a project basis,
with prices and deliveries to be negotiated.
Page 6 of 17
6.2 ADJUSTMENT OF SALES ESTIMATES FOR PRODUCTS. For periods subsequent
to the initial year of the Term, Distributor shall prepare and submit to NECI
quarterly forecasts of the Minimum Sales Estimates which it expects to achieve
in the upcoming quarterly period, and said reports shall be submitted not later
than fifteen (15) calendar days prior to the commencement of the applicable
quarterly period.
ARTICLE 7: PRICE AND TERMS
7.1 PRICING. The price for the Products to be charged by NECI to the
Distributor are as set forth on Exhibit "D" annexed hereto and made a part
hereof as if set out verbatim. All prices and changes shall be quoted in United
States Dollars.
7.2 PAYMENT. NECI will invoice Distributor upon shipment of the Products
purchased by Distributor and payment shall be due within ninety (90) days
following delivery of the Product to Distributor and/or a letter of credit will
be established with terms of payment. All sales of Product shall be FOB Raleigh,
North Carolina. All payments shall be made by Distributor by wire transfer in
United States Dollars in immediately available funds, irrespective of
fluctuations in exchange rates.
7.3 TAXES, ETC. The Distributor shall be responsible for all taxes,
shipping, custom duties, freight, insurance and all other charges
related to the shipping, delivery and sale of the Products by the
Distributor. Export duties and customs, if any, shall be borne by
NECI, at the U.S.A end.
ARTICLE 8: PRODUCT WARRANTY
8.1 WARRANTY. NECI warrants that all Products: (a) will conform with all
specifications and descriptions thereof provided by NECI, (b) will be free of
defects in material, workmanship and design, (c) will be of merchantable
quality, suitable for the purposes for which they are intended to be used, (d)
will be compatible with existing equipment of Distributors customers, and (e)
will be compatible to other equipment being linked to Products, providing
Distributor will have the right to exchange or return existing inventory if
Products do not meet requirements (a) to (e).
Warranty period for all Products delivered with in one year of this
agreement shall be 24 months from delivery or 18 months from installation
whichever shorter. Thereafter, the warranty period shall be 90 days. NECI shall
provide repair and return for any faulty hardware with 2 weeks, and shall
provide debug and solution to any software problem, free of charge during the
warranty period.
Except as expressly provided above, NECI grants no other warranties
or conditions, express or implied, by statute this Agreement or any
communication by NECI regarding the Product, their fitness for any particular
purpose, their quality, their merchantability or otherwise.
Page 7 of 17
8.2 DEFENSE AGAINST CLAIMS. In the event of any action, suit or
proceeding: (a) initiated by one or more of Distributor's customers (which term
includes any and all Persons receiving Products directly or indirectly from
Distributor, whether or not Distributor has been or will be compensated for such
Products received); and (b) naming NECI or Distributor as a party, NECI or
Distributor, at NECI's option, shall undertake principal responsibility for
defense of such action, suit or proceeding. The Parties agree to cooperate fully
in the defense of any such action, suit or proceeding.
8.3 INSURANCE. No later than the Effective Date, NECI and Distributor
shall each cause the other to be named as an additional insured on their
respective liability insurance policies to the same extent as each would be
covered in its own right for the manufacturer and sale of Products.
ARTICLE 9: INDEMNIFICATION
NECI shall indemnify, defend and hold harmless the Distributor and its
employees, servants, officers, directors, agents from and against all claims or
suits for
(a) bodily injury, including death, or property damage arising out
of the resale, or use of any Product, except if such injury,
damage, cost or expense is caused by the negligence, action or
inaction of Distributor or any party other than NECI;
(b) damages and loss caused by any fundamental design fault of
Products; or
(c) damages and loss caused by the legality of Patent or Trademark
owned by NECI.
Distributor shall indemnify, defend and hold harmless NECI and its
employees, servants, officers, directors, agents and representatives from and
against any and all claims or suits for bodily injury, including death or
property damage with respect to any claims or suits arising out of or relating
to Distributor's negligence, breach of this Agreement or any misrepresentations
by Distributor.
ARTICLE 10: TERM OF AGREEMENT AND EXTENSION
TERM. The term of this Agreement shall commence with the Effective
Date and conclude on 31st December, 2007.
Page 8 of 17
ARTICLE 11: TERMINATION
11.1 DEFAULTS. NECI may, in its sole discretion, elect to terminate this
Agreement if Distributor fails to cure any material breach of the provisions of
this Agreement within thirty (30) days after written notice of such breach.
Without limiting the generality of the foregoing, it shall constitute a material
breach thereof if Distributor fails:
(a) to make timely payments for Products delivered to Distributor,
and in the event of a late payment during a payment default, to
take all steps necessary and appropriate to assure that
subsequent payments will be timely;
(b) to carry out the Distributor's duties as required hereunder; or
(c) to fully and completely comply, during the entire Term, with
all of the terms and conditions of Article 12 hereof.
The Distributor has the same right as for NECI stated herein this clause
if NECI fails (b) and/or (c).
11.2 INSOLVENCY. Each Party shall have the right, upon written notice, to
terminate this Agreement forthwith if the other Party commits or suffers any act
of bankruptcy, comes under the control of a receiver, becomes insolvent, makes
an assignment for the benefit of creditors of all or part of its assets, or
undergoes liquidation or dissolution.
11.3 PRODUCT AVAILABILITY. Should North Electric Company be unable to
deliver product(s) designated in this distribution agreement by April 1, 2004,
this agreement shall be null and void.
11.4 EFFECT OF TERMINATION. Distributor shall terminate all Product
distribution activities in the Pacific Rim immediately upon termination of this
Agreement. NECI will repurchase all inventories on hand at cost to Distributor.
In addition, Distributor shall deliver to NECI all Product materials supplied by
NECI and all Product marketing materials of any kind. The obligations of NECI
and Distributor relating to Confident Information, Remedies and Indemnification
shall survive any termination of this Agreement. Nothing herein shall limit any
remedies, which a party may have for the other's default, except as expressly
provided herein. Neither party shall be liable to the other for any damage in
connection with such party's termination of this Agreement by notice, in
accordance with the Section.
Page 9 of 17
ARTICLE 12: LIMITATIONS OF REPRESENTATION
12.1 NO JOINT VENTURE. Distributor shall have no authority to represent
NECI as agent, or to bind NECI by any contract, representation, understanding,
act or deed concerning NECI (or any Product). Neither the making of this
Agreement nor the performance of any part of the provisions hereof shall be
construed to constitute Distributor as an agent or representative of NECI for
any purpose. This Agreement shall not be interpreted to establish a joint
venture or partnership.
12.2 DISTRIBUTOR AS PRINCIPAL. Notwithstanding any term of this
agreement, all sales of Products made by Distributor will be in its own name and
for its own account, it being understood that Distributor is an independent
organization re-selling products which are purchased from NECI.
ARTICLE 13: GENERAL
13.1 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with the laws of the State of Delaware. The Parties consent to the
jurisdiction of the courts of the State of Delaware and the jurisdiction of the
Federal District Court in the State of Delaware and to service of process by
registered mail, return receipt requested or in any other manner provided by
law.
13.2 COUNTERPARTS. For convenience of the Parties, this Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
far all purposes, and all of which taken together shall constitute but one and
the same instrument.
13.3 NOTICES. All notices, requests, demands, consents, waivers,
approvals and other communications hereunder shall be in writing and shall be
deemed to have been duly given (1) if delivered personally with receipt
acknowledged, (2) if transmitted by electronic mail, telex, telefax, telegraph,
or other like method, or (3) if mailed, postage prepaid, by certified mail,
return receipt requested, addressed as follows:
If to NECI;
North Electric Company, Inc.
6131 Falls of Neuse Road
Suite 205
Raleigh, NC 26709
Facsimile: 919-341-6010
Email: dan.ference@northelectriccompany.com
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With a copy to:
Peter B. Finn, Esq.
Rubin and Rudman LLP
50 Rowes Wharf
Boston, MA 02110
Facsimile: (617) 439-9556
Email: pfinn@rubinrudman.com
If to Distributor:
International Network Technology Ltd.
610 Lippo Sun Plaza
28 Canton Road
Tsimshatsui, Hong Kong
Facsimile: 852-3113-1002
Email: walter@intl-net.com
or such other addresses as either Party may designate for itself by written
notice given to the other Party from time to time in the manner hereinabove
provided. Except as otherwise expressly provided herein, all communications
hereunder shall be deemed to be given, received and dated on the date when
delivered personally, on the date of receipt of telex or telefax, or on the date
of delivery or refusal (if refused) of certified or registered mail.
13.4 SEVERABILITY. If any of the provisions of this Agreement are held
invalid or unenforceable and unless the invalidity or unenforceability thereof
does substantial violence to the underlying intent and sense of the remainder of
this Agreement, such invalidity or unenforceability of any other provisions of
this Agreement except those which the invalidated or unenforceable provisions
compromise an integral part of or are otherwise clearly inseparable from. In the
event any provision is held invalid or unenforceable, the Parties hereto shall
use their best efforts to agree upon a valid and enforceable provision which
shall be a reasonable substitute for such invalid or unenforceable provision in
light of the terms of this Agreement and, upon so agreeing, shall incorporate
such substitute provision in this Agreement.
13.5 INTEGRATION. This Agreement, together with all Exhibits, contains
the entire understanding and agreement of the parties hereto with respect to the
subject matter contained herein, supersedes all prior oral or written
understandings and agreements relating thereto except as expressly otherwise
provided, and may not be altered, modified or waived in whole or in part, except
in writing, signed by duly authorized representatives of the Parties.
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13.6 ASSIGNMENT. The rights granted to or obligations imposed upon the
Parties under this Agreement shall not be assignable, or otherwise delegable,
transferable, or subject to encumbrance in any manner or degree to or in favor
of any person for any purpose by any act of either Party or by operation of law
or otherwise, without the prior written consent of the other Party. Any attempt
to assign, delegate, transfer or encumber such rights or duties, in the absence
of the other Party's prior written consent, with the exception noted in the
preceding sentence, shall be void and of no force and effect.
13.7 FORCE MAJEURE. Each of the parties hereto shall be excused from
their performance of its obligations hereunder in the event such performance is
prevented by force majeure, and such excuse shall continue so long as the
condition constituting such force majeure continues plus thirty (30) days after
the termination of such condition. For the purposes of this Agreement, force
majeure is defined to include causes beyond the control of Distributor or NECI,
including, without limitation, acts of God, acts, regulations or laws of any
government, war, terrorism, civil commotion, destruction of production
facilities or materials by fire, earthquake or storm, labor disturbances, or
medical epidemics.
13.8 MEDIATION. In the event of any dispute or disagreement regarding
this Agreement or any of the terms hereof, the parties shall endeavor to
resolve, within thirty (30) days of receipt of written notice detailing such
dispute or disagreement, all such issues by mediation; and the parties hereby
appoint their respective Presidents to meet, confer and attempt to resolve the
differences. If the parties are, for whatever reason, unable to reach an
agreement, either party shall be entitled to proceed to adjudicate its rights in
an appropriate court.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed, under seal, on the day and year first above written.
NORTH ELECTRIC COMPANY, INC.
By:
(name)
(title)
Hereunto Duly Authorized
International Network Technology Ltd.
By: /s/ Walter Yong Nov. 28, 2003.
-------------------------------------
Walter Yong (name)
Chief Operating Officer (title)
Hereunto Duly Authorized
|
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EXHIBIT "A"
PRODUCTS AND SUPPLIES
NECI NETWORK ASSURANCE SYSTEM (NAS)
The NECI Network Assurance System consists of a set of components working
together to provide end-to-end active TDM and VoIP call quality testing. It
tests both connection signaling and call performance, ensuring high quality
voice services as perceived by network users. A number of packaging options are
available consisting of bundled hardware and software or software-only licenses.
Configurations can also support different numbers of interfaces and can also
support multiple NAPs within a single physical device. This agreement is signed
in view of the latest revolutionary developemtn to be released in December 2003.
Components of the NECI NAS include:
NETWORK ASSURANCE SYSTEM - CENTRAL SERVER (NAS-CS)
Centralized test control, administration, and reporting system for the NECI
Network Assurance System. The NAS-CS provides the ability to configure the
NAS components and their interfaces, define test sequences, schedules, source
and destination test endpoints, and generate and view test reports. The
NAS-CS is provided in a rack-mount configuration. Options are available for
120 VAC and -48VDC powering.
NETWORK ACCESS PROBE - SS7 SIGNALING (NAP-S)
The NAP-S performs scheduling; test, and SS7 call control for the NAP-T. It
interfaces to the SS7 network and is the Service Switching Point (SSP) for
the Network Assurance System. It can be provided in a rack-mount
configuration equipped with from 2 to 4 DS1 interfaces to the SS7 network.
Options are available for 120 VAC and -48VDC powering.
NETWORK ACCESS PROBE - TIME DIVISION MULTIPLEX (NAP-T)
The NAP-T performs voice path tests of the network including DTMF send and
receive and PESQ voice quality measurements. Test call quality is measured
with the embedded PESQ application using an artificial speech test stimulus
with the results shown in a Mean Opinion Score (MOS). The NAP-T is connected
to network TDM interfaces. It can be provided in a rack-mount configuration
equipped with from 1 to 16 DS1 interfaces. Options are available for 120 VAC
and -48VDC powering.
NETWORK ACCESS PROBE - DATA (NAP-D)
The NAP-D performs scheduling, test, and SIP call control for VoIP networks
via DTMF send and receive and PESQ voice quality measurements. Test call
quality is measured with the embedded PESQ application using an artificial
speech test stimulus with the results shown in a Mean Opinion Score (MOS).
The NAP-D is connected to network IP interfaces. It can be provided in a
rack-mount
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configuration equipped with from 1 to 4 10/100BT Ethernet interfaces. Options
are available for 120 VAC and -48VDC powering.
NETWORK ACCESS PROBES - OTHER
NECI will continue to develop new types of Network Access Probes as part of
the NECI Network Assurance System to support other test and interface
capabilities.
SOFTWARE UPGRADE
NECI plans to evolve the capabilities of NAS by providing new features and
functions via software upgrades to existing products. These upgrades are
available for an additional charge.
SOFTWARES SUPPORT
Each software package in the NAS carries an Annual Software Support Contract
(ASSC) fee that entitles the customer to software updates for any and all
service affecting problems found worldwide free of charge. It also entitles
the customer to any additional maintenance software updates which may be
released free of charge. In the event of fundamental design problem, updates
shall be issued free of charge.
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EXHIBIT "B"
TRAINING
NECI FACILITY BASED STANDARD TRAINING
NECI will provide training for up to 3 people free of charge at its headquarters
in Raleigh, North Carolina. The training period is expected to be 5 days in
duration. Travel and living expenses associated with the training will be the
responsibility of the Distributor. Standard training covers product sales and
capabilities, product installation, product operation and product support.
DISTRIBUTOR FACILITY BASED STANDARD TRAINING
If the Distributor prefers, NECI will provide 1 to 2 people to perform the
Standard Training at the Distributor's facility. In this case the training
period is expected to be 5 days in duration. In this case, the Distributor will
be responsible for the NECI trainers' travel and living expenses.
SALES SUCCESS ASSURANCE
NECI is fully committed to helping Distributor succeed. To assist in this, NECI
will provide free of charge 1 person to assist Distributor's sales staff on
sales calls and provide further on the job training of their sales team for up
to 4 weeks. The Distributor will be responsible for the NECI individual's travel
and living expenses.
FIRST CUSTOMER ORDER SUCCESS ASSURANCE
NECI is fully committed to helping Distributor succeed. To assist in this, NECI
will provide free of charge 1 person on site (both Distributor and customer site
as needed) for up to 4 weeks to help Distributor successfully deliver its first
customer order. The Distributor will be responsible for the NECI individual's
travel and living expenses.
ADDITIONAL TRAINING AVAILABLE
Distributor may want to consider additional training. NECI will make available
additional training in any or all of the 4 areas (product sales and
capabilities, product installation, product operation and product support)
covered in the standard training package. In this case, NECI Will work with the
Distributor to define the extent of the additional training desired and
negotiate an appropriate charge.
DISTRIBUTOR CONSULTING
NECI is fully committed to helping Distributor succeed. To assist in this, NECI
will also provide consulting services to assist Distributor establish the
organization and infrastructure required. In this case, NECI will work with the
Distributor to define the extent of the consulting desired and negotiate an
appropriate charge.
CERTIFICATION
NECI shall issue certificates to person having completed any of the training
provided by NECI.
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EXHIBIT "C"
SALES LEVELS
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EXHIBIT "D"
PRICES AND TERMS
PRICING WILL BE NEGOTIATED ON A PROJECT-BY-PROJECT BASIS.
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