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EXHIBIT 10.77
INTELECT NETWORK TECHNOLOGIES COMPANY
SALES REPRESENTATIVE AGREEMENT
This Agreement is made as of January 27, 1998, by and between Intelect Network
Technologies Company, a Nevada corporation, (hereinafter referred to as
"INTELECT") and Amerix Electronics, Inc. (hereinafter referred to as
"REPRESENTATIVE").
INTELECT and REPRESENTATIVE agree as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, each of the
terms set forth in this clause shall have the meaning indicated:
1.1 PRODUCTS
All products manufactured by INTELECT or products that
INTELECT sells via original equipment manufacturer (OEM)
arrangements with other manufacturers.
1.2 TERRITORY
Republic of Korea.
2. GRANT OF TERRITORY RIGHT
INTELECT hereby grants to REPRESENTATIVE the exclusive right to market
and promote sales of Products of INTELECT in the Territory.
REPRESENTATIVE hereby accepts the right to market Products and agrees
to make all sales in accordance with this Agreement.
Nothing in this Agreement shall authorize REPRESENTATIVE to sell
Products in a territory not listed in the section titled Territory
above except as specified in this section, Grant of Territory Right.
Any sales activity reported to INTELECT outside REPRESENTATIVE's
Territory will be credited to the REPRESENTATIVE of record in the
territory. If no REPRESENTATIVE is assigned outside REPRESENTATIVE's
Territory, then written approval from INTELECT must be obtained by
REPRESENTATIVE to receive credit for the sale.
Nothing in this Agreement shall authorize REPRESENTATIVE to sell
Products to a country for which an export license will not be issued
by the United States Government.
3. TERM OF AGREEMENT
Except as otherwise herein provided, this Agreement shall begin on the
date stated above and shall continue in force for one year from that
date. This Agreement shall be automatically renewed for one-year
periods unless written notice of termination is given by either party
thirty (30) days prior to the termination of the Agreement. Any
ongoing project at the time of termination will be completed and not
terminated.
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4. TERMINATION
In addition to the termination specified in the section titled Term of
Agreement, either party may terminate the Agreement by sending written
notice to the other party ninety (90) days prior to the proposed date
of termination. Any ongoing project at the time of termination will
be completed and not terminated.
Should the REPRESENTATIVE or INTELECT fail to comply with the terms
and conditions of this Agreement, either party may terminate this
Agreement upon twenty-four (24) hour written notice of its intent to
do so.
5. RESPONSIBILITY OF THE REPRESENTATIVE
5.1 REPRESENTATIVE agrees to market, sell and otherwise promote
INTELECT's Products in the Territory. REPRESENTATIVE agrees
that during the period of this Agreement, it will not market,
sell or promote products of any other manufacturer that are
competitive with INTELECT's. REPRESENTATIVE agrees that
during the period of this Agreement, REPRESENTATIVE shall
provide appropriate engineering support, engineering and
installation services, and other services as required by its
customers and as is common in the trade.
5.2 REPRESENTATIVE will meet with a representative from INTELECT,
at least one time in each year that the contract is in effect,
to discuss status of sales to-date and future sales forecasts
as well as analyze and determine actions, if any, in response
to previously agreed-to metrics to ascertain the success of
the partnership in meeting objectives.
5.3 REPRESENTATIVE agrees that during the period of this
Agreement, it will not design and/or manufacture equipment
competitive with INTELECT's.
5.4 REPRESENTATIVE agrees to abide strictly by the performance,
price and delivery quotations of INTELECT and will not modify
those quotations in any way.
6. RESPONSIBILITY OF INTELECT
6.1 INTELECT's sales force will provide reasonable support for
joint sales calls upon request of REPRESENTATIVE.
6.2 INTELECT shall provide a timely response to REPRESENTATIVE's
requests for quotations and all prices shall be confirmed in
writing by INTELECT. INTELECT agrees to follow up on all
reported customer problems in a timely manner.
6.3 In full and final payment of all commissions due to
REPRESENTATIVE hereunder, INTELECT is hereby paying in advance
to REPRESENTATIVE a 2.65% commission in anticipation of
$30,000,000 of sales generated by REPRESENTATIVE and certain
affiliated entities (as hereinafter described) on Products
sold after January 1, 1998, and such commission is being paid
in the form of the issuance to REPRESENTATIVE of 150,000
shares of Common Stock, $.01 par value, of Intelect
Communications, Inc. ("ICI"), the parent corporation of
INTELECT, provided that the commission rate on the initial
$50,000 of sales of such Products by REPRESENTATIVE shall be
3%. The parties agree that the determination of the
$30,000,000 of sales of Products on which such commission is
based shall be made by taking into account sales of Products
by INTELECT to REPRESENTATIVE or its affiliated entities, or
sales of Products by a
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Joint Venture to be formed by INTELECT and Opicom Company,
Ltd. REPRESENTATIVE, for and on behalf of itself, its
affiliated entities, its parent company, and its successors
and assigns, is hereby accepting such shares of ICI as full
and final payment of all compensation or commissions to be
paid to REPRESENTATIVE for any sales made by REPRESENTATIVE of
the Products after January 1, 1998, and hereby acknowledges
that as of the date hereof, REPRESENTATIVE has sold at least
$50,000 of Products.
Any commissions or other compensation to be paid to
REPRESENTATIVE at any time in the future, including without
limitation, for sales of Products in excess of the $30,000,000
of anticipated sales as described herein, shall be mutually
agreed to by a separate written agreement or an amendment
hereto executed by both INTELECT and REPRESENTATIVE.
6.4 INTELECT will inform REPRESENTATIVE in writing via registered
mail of any price changes sixty (60) days prior to the
effectivity date of the change.
7. RESPONSIBILITY OF THE REPRESENTATIVE AND INTELECT
Each party may have heretofore received or will in the future receive
from time to time confidential and proprietary information and data
concerning the Products, research and engineering, developmental
products and projects, business plans and operations of or belonging
to the other party or its associated companies (herein collectively
referred to as "Confidential Information"). Each party agrees to
treat, and to cause its officers and its employees to treat, all such
Confidential Information of the other party as confidential property
and neither divulge it to others at any time, nor use it in any
purpose other than performing its obligations under this Agreement,
except with the prior written authorization of the disclosing party
and then only in a manner and to the extent authorized. Each party's
obligation hereunder shall continue after the termination or
expiration of this Agreement, and at the termination of this
Agreement, or any time that the disclosing party so requests, the
other party shall deliver to the disclosing party all notes,
memoranda, records, drawings or other documents and other information
or materials (including all copies and reproductions thereof)
pertaining to the Confidential Information.
8. STATUS OF BOTH PARTIES
REPRESENTATIVE shall be in the position of an independent contractor
to INTELECT with rights and responsibilities for developing sales
prospects and closing sales contracts in the Territory. Employees of
REPRESENTATIVE shall not be deemed employees of INTELECT. This is not
an agency agreement between INTELECT and REPRESENTATIVE.
REPRESENTATIVE is not empowered to act for INTELECT in any manner that
would commit INTELECT to deliver any Product, to perform any act, or
to do any thing.
9. TRADEMARKS, TRADE NAMES, ETC.
All INTELECT trademarks, trade names, logos, etc., shall remain the
property of INTELECT. However, REPRESENTATIVE shall have the right,
limited to its REPRESENTATIVE capacity, to use the trademarks, trade
names, logos, etc. of INTELECT during the term of this Agreement.
10. WARRANTY
10.1 INTELECT warrants to the end user customer that the Products
will be free from defects in material and workmanship for a
period of 18 months from the date of shipment of the Product
or one (1) year from the date of installation, which ever
comes first.
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10.2 The obligation of INTELECT under this warranty is limited to
the repair and/or replacement of any part or parts of the
Products found defective, provided that such defect shall have
been found within the warranty period of the respective
Products and INTELECT shall have been advised of such defect
within 30 days of the date when said defect is found.
Warranty repair/replacement will be performed F.O.B.
INTELECT's factory.
10.3 IN NO EVENT SHALL REPRESENTATIVE OR END USER CUSTOMER BE
ENTITLED TO ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. ALL
WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR USE, ARE HEREBY EXCLUDED AND DISCLAIMED.
11. ASSIGNMENT
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their successors and assigns, provided,
however, that the rights or obligations of REPRESENTATIVE hereunder
shall not be assigned without the written consent of INTELECT.
12. AMENDMENTS TO AGREEMENT
INTELECT reserves the right to amend this Agreement by sending written
notice to REPRESENTATIVE as specified in section titled Notice, thirty
(30) days in advance of effective date of such amendments.
13. NOTICE
Except as otherwise provided in this Agreement, all notices required
or permitted to be given hereunder shall be in writing, by mail or
facsimile transmission, and shall be valid and sufficient upon receipt
by the other party, addressed as follows:
If to INTELECT: Willard F. Barnett
Sr. Vice President, Sales and Marketing
Intelect Network Technologies Company
1100 Executive Drive
Richardson, Texas 75081
Telephone: 972-367-2100
Fax: 972-367-2270
If to REPRESENTATIVE: Amerix Electronics, Inc.
431 E. Grant Avenue
El Segundo, California 90245
Attention: Tehan Oh
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14. Legal Interpretation
This Agreement will be governed by the laws of the State of Texas.
INTELECT: REPRESENTATIVE:
Intelect Network Technologies Company Amerix Electronics, Inc.
By: /s/ Willard F. Barnett By: /s/ Tehan Oh
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Willard F. Barnett Tehan Oh
Senior Vice President, Sales and Marketing President
Date: Date:
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