opticon10q1208x10g1_21709.htm


    
 

     

    Exhibit
10.G.01

    Exclusive
Business Agent Agreement

    


    


    This
Exclusive Business Agent Agreement is entered into this  23rd. day of
November, 2008 by and between OptiCon Systems, Inc. (“Company”), organized under
the laws of the State of Nevada, United States of America, and Develco cc
(“Develco”), a closed corporation, organized under the laws of the Republic of
South Africa.

    


    WHEREAS,
the Company offers a network management solution for physical and logical layer
and fault detection, including on fiber-optic systems, via software,
professional services, and integrated systems for Telecom, Communications and
Alternative Energy companies (“Services”) using the Company’s unique Opticon
Fiber Optic Network Management System; and

    


    WHEREAS,
Develco a business development consulting company, with personal and business
relationships in South Africa, that assists companies in establishing new
businesses and/or franchises, securing financing, introducing individuals and
companies to products, systems,  technologies, services, etc, from
countries throughout the world, for the purpose of importing and marketing those
products, systems, technologies, services, etc into South Africa and other
countries in Africa, and likewise, contacting local companies and/or individuals
to promote products, systems, technologies, services, etc, for the purpose of
exporting those products, systems, technologies, etc. to other countries;
and

    


    WHEREAS,
the Parties are interested in establishing a mutually beneficial business
relationship in order to further the mutual interests of both Parties;
and

    


    WHEREAS,
the Parties wish to enter into an agreement whereby the Company would appoint
Develco to be the Exclusive Business Agent for the Company in the Republic of
South Africa and future appointments for other countries in Africa in order to
recruit businesses and/or individuals to become non-exclusive Sales
Representatives for the Company’s products and services; and

    


    NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in further consideration of the mutual
covenants set forth herein, the Parties hereto agree as
follows:


    
      
         


      

      
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    1.0           Definitions.

    


    


    1.1           "Products" shall mean
Company products, software, accessories and services offered by the Company for
sale in the Territory which are listed in Exhibit A attached hereto, as the
same may be amended or modified from time to time by the Company in its sole
discretion.

     

    1.2           "Territory" shall mean
the geographical area, specified prospects/customers or areas described in
Exhibit B attached hereto, as the same may be amended or modified from time
to time by duly authorized representatives of the parties hereto in
writing.

     

     

    1.3           "Net Billings" shall
mean all amounts invoiced in respect to the sale of Products actually provided
to a customer, less actual discounts, credits, refunds and allowances made,
freight, transportation, C.O.D., insurance and similar charges, manufacturer's
warranty charges, and any applicable sales, use or other similar
taxes.

     

     

    1.4           "Bookings" shall mean
orders from customers that have been received, acknowledged and accepted by the
Company and scheduled to be provided to the customer.

     

     

    1.5           "Commissions" shall
mean Sales Representative's compen­sation for performance of its duties
hereunder at the rates set forth in Article 8 of this Agreement, as the same may
be amended or modified from time to time by the Company in its sole discretion
by giving at least thirty (30) days’ prior written notice to Sales
Representatives before such change becomes effective.  The new
commission rates shall apply to all orders received or dated after the effective
date of such notification.

     

     

    1.6           "House Accounts" shall
mean those customers for or purchasers of the Company Products which are located
within the Territory and which are designated from time to time in writing by
the Company as House Accounts.  House Accounts designated by the
Company at the time of execution of this Agreement are set forth in
Exhibit B attached hereto. The Company may in its sole discretion designate
other customers as House Accounts by giving Sales Representative at least ten
(10) days prior written notice of such designation before such designation
becomes effective.

     

     

    1.7           "Regular Accounts"
shall mean those customers for or purchasers of the Company Products which are
not defined in Article 1.6 above and shall be serviced by the Sales
Representative.

     

     

    1.8           "Industrial
Distributor" shall mean those persons, firms or organizations purchasing
the Company Products for resale to customers in the Territory (excluding House
Accounts) in accordance with distributorship agreements entered into from time
to time with the Company.

     

     

    1.9           "Confidential
Information" shall mean all informa­tion made available by the
Company to the Exclusive Business Agent and/or Sales Representative, its agents
or employees, in connection with this Agreement which the Company protects
against unrestricted disclosure to others and which:  (i) if in
written or other tangible form, is clearly designated as "Confidential"; or
(ii) if disclosed orally, is designated as "Confidential" in a written
memorandum delivered by the Company promptly following such oral
disclosure.  By way of illustration, but no limitation, Confidential
Information may include proprietary technical data and concepts, vendor and
customer information, financial information and marketing data.

     

    


    2.0           Appointment

    


    2.1           The
Company hereby grants to Develco the exclusive right to locate and secure the
services of qualified internet/communications or computer service companies to
become non-exclusive Sales Representatives for the Company’s products and
services in the Republic of South Africa.

    


    2.2           Should
Develco is able to locate a qualified Sales Representatives in any other
territories in the continent of Africa, subject to other relationships the
Company may have with other entities in or for that particular territory, the
Company would also appoint Develco as its Exclusive Business Agent to secure the
services of Sales Representatives in their particular
Territory.


    
      
         


      

      
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    2.3           Develco
understands that the Company shall have the absolute discretion in evaluating
and approving all Sales Representatives to distribute the Company’s
Products.  Any prospective Sales Representative would have to complete
an application, agree to the terms of the Sales Representative Agreement, and to
have been accepted by the Company.  The Company reserves the right to
accept or reject the Application of any prospective Sales Representative and
reserves the right to cancel any Sales Representative’s Agreement at any time
for any reason, subject to the Company’s obligation to pay outstanding
commission to that Agent, without any further obligation or liability to
Develco.

    


    3.0           Develco
Obligations

    


    Develco
shall be responsible for the following:

    


    3.1.           Develco
shall use best business practices in conducting itself and in presenting the
Company’s Products.  Develco agrees to safeguard, protect and promote
the reputation of the Company and shall not engage in any conduct, which might
be harmful to the reputation of the Company.  Develco shall not engage
in any deceptive, misleading, unethical, unlawful or immoral conduct or
practices.  Develco shall defend, indemnify and hold harmless the
Company, its officers, directors and employees from any and all claims arising
from the Develco’s acts or omissions in violation of Develco’s
obligations.

    


    3.2.           The
Develco shall be responsible for paying all taxes due on Develco’s earnings and
compensation in any form including commission earned under this
Agreement.

    


    3.3.           Develco
will be solely responsible for any and all agreements with, and any and all
payments and other obligations to, its own employees or affiliates. Develco is
not authorized to hire or contract sub-agents or independent contractors to
carry out any of its duties under this Agreement.

    


    4.0           Term

    


    The
Initial Term of this Agreement shall be for twelve (12) months commencing upon
the execution of the Agreement, and renewed automatically for an additional
twelve (12) month period under terms and conditions to be negotiated, unless
previously terminated by either party in accordance with Article 10 Article
11.  Request by Develco for additional extension of the Agreement
shall be in writing no less than thirty (30) before expiration of the effective
term.  The Company shall not arbitrarily deny such
request.

    


    5.0           Independent
Contractor

    


    This
Agreement shall not render the Develco or its employees as an employee, partner
or joint venture of the Company for any purpose. The Company shall not be
responsible for withholding taxes with respect to the Develco’s or its
employees. Neither Develco nor its employees shall have any claim against the
Company for vacation pay, sick leave, retirement benefits, social security,
worker’s compensation, health or disability benefits, unemployment insurance
benefits or employee benefits of any kind.

    


    6.0           Exclusivity

    


    This
Agreement is an exclusive appointment of Develco as the Company’s Business
Agent, and therefore Develco shall refrain from entering into similar agreements
with third parties in competition with the Company’s products and services.
However, Develco is barred during the term of this Agreement and for 2 years
after termination of this Agreement from soliciting Company’s customers for the
sale of any products or services that compete with the Company’s products and
services.

    


    7.           Representations

    


    In
recruiting Sales Representatives, Develco agrees not to make false or fraudulent
representations about the Company, the Company’s products or services, the
Company compensation plan, or income potential. Any marketing materials,
collateral, compensation plans to be advertised or presented may only be used
with prior written approval from the Company. Any violation of this policy can
terminate this Agreement.

    



    
      
         


      

      
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    8.           Commissions

    


    The
Company shall pay Commissions to the Exclusive Business Agent 7.5% on (i) the
Net Billings directly invoiced by the Company with respect to sales of Products
to Regular Account customers located in the Territory, and (ii) the Net Billings
invoiced by the Company's Industrial Distributors with respect to sales of
Products for shipment to Regular Account customers of Sales
Representative  located in the Territory and recruited by Develco, but
excluding in each case Net Billings with respect to sales of Products to House
Accounts.  All Bookings of sales shall be approved by the Company in
its sole discretion.

     

    (a)           Commission
payments with respect to sales of Products shall be paid within 30 days of
receipt.

     

    (b)           There
shall be deducted from any Commission payment due Develco an amount equal to the
total of: (i) any Commissions previously paid in respect to sales of
Products which have subsequently been returned; and (ii) a pro rata portion
of any Commissions previously paid in respect to Products upon which refunds or
credits have subsequently been allowed by the Company.

     

    (c)           Each
Commission payment shall be accompanied by a statement setting forth in
reasonable detail the computation of the Commissions being paid, and any
deductions thereto for identifying invoices by number.

     

    (d)           Commissions
shall not accrue or be payable on orders or shipments for any non-production
items, such as experimental samples, tools or equipment, development or
experimental products, special testing equipment or any similar equipment,
paperwork, or for non-recurring engineering or technology transfer charges,
royalties or license fees.

     

    (e)           
If this Agreement is terminated by either party as provided in Article 11, or if
the Agreement with Develco is terminated due to an Event of Default, Company
shall not be obligated to pay Develco commissions from the point of termination
going-forward, as provided in Article 10.3.

     

    (f)           Any
claim or dispute Develco may have, which is related to or arises out of the
payment of Commissions hereunder shall be submitted to the Company in writing
within thirty (30) days after Develco knows of, or has reason to know of, the
basis for the claim or dispute.  Failure to give notice shall relieve
the Company from any and all liability for such claim or dispute.  The
provisions of this subsection shall survive the termination of this
Agreement.

     

    9.0           Use
of Service Marks including trade marks, logos, prices, plans, product
names.

    


    The
Develco may not use any of the Company’s service marks without the express prior
written permission of the Company. The Company materials, whether printed,
produced on the internet, on film, videotape, or produced by sound recording,
are copyrighted and may not be reproduced in whole or in part by Develco or any
other person except as authorized by the Company.

    


    10.0           Events
of Default

    


    10.1.           Any
of the following circumstances shall constitute a material breach (“Event of
Default”) of this Agreement:

    


    a.           Develco
fails to perform its obligations hereunder, or breaches any provision of this
Agreement.

    


    b.           Develco
participates or engages in any fraudulent, illegal or other wrongful activity,
including but not limited to the falsification or misrepresentation of facts or
circumstances regarding, or the forgery of, any Letter of Agency.

    


    c.           The
insolvency, bankruptcy, dissolution, or the filing by or on behalf of Develco of
any claim or proceeding for receivership, relief from creditors, any assignment
by Develco for the relief of debtors, or the appointment by or on behalf of
Develco of a trustee for its property.

    


    d.           Any
attempt by Develco to assign this Agreement or any part of this Agreement
without OptiCon Systems, Inc.’s prior written consent.

    


    e.           The
breach by Develco of any of the restrictions set forth in Paragraph 8 of this
Agreement regarding use of OptiCon Systems, Inc. service marks.


    
      
         


      

      
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    f.           Any
violation of the prohibitions in Paragraphs 11 or 12 this
Agreement.

    


    10.2           Remedies
to the Company - Upon the occurrence of any Event of default, the Company may
immediately terminate this Agreement without written notice to Develco.
Termination of this Agreement shall be in addition to, and not in lieu of, all
other rights and remedies available to the Company under this Agreement or under
applicable law and/or in equity.

    


    10.3           Duties
upon Termination. Upon termination of this Agreement due to the occurrence of an
Event of Default, the Company shall have no further obligation to pay any
Commission to Develco, and Develco shall refrain from any further use of OptiCon
Systems, Inc.’s name or property, and shall return to the Company all material
relating to the Company’s Products then in Develco's possession or otherwise
obtained by Develco in connection with this Agreement.

    


    11.           Termination

    


    11.1.           In
event that Develco violate any provisions of this Agreement, the Company has the
right to terminate this Agreement immediately and without notice.

    


    11.2.           This
Agreement may be terminated by either party upon sixty (60) days prior written
notice.  All such notices shall be send certified mail or via
facsimile to the address of notice in Article 16.

    


    12.           Confidentiality

    


    12.1.           Parties
acknowledge that in the course of performing their obligations under this
Agreement each Party may disclose to the other or each Party may come into
possession of Confidential Information and proprietary information/data/material
relating to the other Party’s business, and therefore, agree to abide by the
terms of the Agreement.

    


    12.2       The
Parties mutually agree not to disclose to any third party any “Confidential
Information” provided to the other in the course of and as a result of their
business transactions and activities together.

    


    13.           Non
Circumvention

    


    The
Parties of this Agreement, separately and individually agree that no effort
shall be made to circumvent this Agreement or the agreed terms thereof in an
effort to gain fees, commission, remuneration, or considerations to the benefit
of one or more of the Parties of this Agreement, while excluding equal or agreed
to benefit to any other of the Parties of this Agreement.  The Parties
hereby irrevocably affirm and warrant the assign that they will not circumvent,
avoid bypass each other in conducting business with introduced Parties
represented, or are associated with, including lenders, borrowers, brokers,
investors, financiers, or any other third Parties that may be disclosed to
either Party during the course of any and all business transactions, directly or
indirectly to avoid payment, fees, or commissions in any and all transactions
with any and all corporations, partnerships, or individuals revealed by either
Party in connection with any and all transactions involving the Company’s
Products, or additions, renewals, extensions, new contracts, amendments or
renegotiations, or third Party assignments thereof, without specific and agreed
to written permission of the other Party.

    


    14.           Public
Announcements

    


    The
Company and the Exclusive Business Agent and any Sales Representative recruited
by the Business Agent will have the right to publicly announce in press
releases, radio, online or TV interviews significant developments related to the
Agreement.  All public announcements must have the written approval of
both parties prior to the announcement.

    


    15.           Miscellaneous

    


    This
Agreement: (a) constitutes the entire agreement of the parties with respect to
its subject matter and supersedes all previous agreements or understanding,
whether oral or written; (b) may be amended or modified by Company at any time
with notice to Develco, but may not be amended by Develco without Company’s
prior written consent; (c) is binding upon and will inure to the benefit of the
parties and their respective successors, transferees, personal representatives,
heirs, beneficiaries and permitted assigns; (d) may not be assigned in whole or
part by Develco except with the prior written consent of Company; and (e) shall
be governed by and interpreted in accordance with the laws of the State of
Florida, without regard to its conflict of laws and rules.


    
      
         


      

      
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    16.           Arbitration

    


    This
Agreement is governed under the laws of the State of Florida. The parties agree
that they will attempt to resolve any claim, dispute, or other difference
between them informally and in good faith. If the parties are not successful,
the claim, dispute, or other difference shall be exclusively resolved by binding
arbitration pursuant to the Commercial Arbitration Rules of the American
Arbitration Association, with arbitration to occur at Tampa, Florida (unless
otherwise required by applicable law). The decision of the arbitrator will be
entitled to enforcement in any court of competent jurisdiction. This provision
shall not be construed so as to prohibit the Company from obtaining preliminary
and permanent injunctive relief in any court of competent
jurisdiction.

    


    17.           Notices

    


    All
notices shall be delivered by hand, or sent via certified mail, postage prepaid,
return receipt requested, or via facsimile to the address and/or fax number of
the party as it appears below:

    


    As to the
Company:

    


    
      
        	 	
                OptiCon
      Systems, Inc.

              
	 	
                1701
      West Northwest Highway

              
	 	
                First
      Floor, Suite 100-54

              
	 	
                Grapevine,
      Texas 76051 USA

              
	 	
                Phone
      (727) 417-9338 ** Fax (813) 354-2739

              
	 	
                Attention:
      Sam Talari, Chairman

              
	 	
                E-mail:
      talari@futuretechcapital.com

              


      

    

     

    


    


    As to the
Develco:

    


    
      
        	 	
                Develco
      cc

              
	 	
                c/o
      8 Teesdale Road, Hyde-Park

              
	 	
                P.
      O. Box 186, Melrose Arch 2076

              
	 	
                Johannesburg,
      South Africa

              
	 	
                Phone/Fax:
      011 8852967  Mobile: 082 404-3225

              
	 	
                Attention:
      Stan Segel

              
	 	
                E-mail:
      develco@telkomsa.net

              


      

    

    


    
18.           Severability

    


    If any
provision of this Agreement is determined by a court or other governmental
authority to be invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall not affect the validity, legality or enforceability of
any other provisions of this Agreement. Further, the provision that is
determined to be invalid, illegal or unenforceable shall be reformed and
construed to the extent permitted by law so that it will be valid, legal and
enforceable to the maximum extent possible.

    


    As to the
Company:

    


    ____/s/ Sam
Talari______________________

    Authorized
Signature

    Name:       Sam
Talari

    Title:         Chairman
of the Board

    


    Executed
this 23rd. day of November, 2008.

    


    


    As to
Develco:

    


    ___/s/ Stan
Segel______________________

    Authorized
Signature


    Name:
Stan Segel

    Title:
Executive

    


    Executed
this 23rd. day of
November, 2008.

     


    
      
         


      

      
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    EXHIBIT
A

    


    
      	
               
      

            	
              I.

            	
              PRODUCTS:

            


    

     

      The
Company products covered by this Agreement are listed below, but not limited
to:

    
      	
               
      

            	
              i.

            	
              OptiCon
      Network ManagerTM

            


    

     

    
      	
               
      

            	
              ii.

            	
              OptiCon
      Maintenance Contracts

            


    

     

     

    
      
         


      

      
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    EXHIBIT
B

    


    
      	
               
      

            	
              I.

            	
              TERRITORY/ACCOUNTS:

            


    

     

     The following
Territory/Account(s) is/are hereby assigned to Exclusive Business Agent for the
in order to recruit businesses and/or individuals to become non-exclusive Sales
Representatives for the Company’s Products as described in this
Agreement:

    


    
      	
               
      

            	
              i.

            	
              Territory:
      Republic of South Africa

            


    

     

    
      	
               
      

            	
              ii.

            	
              Other
      Territories/Accounts: Subject to pre-approval by the
      Company.

            


    

     

    


    
      	
               
      

            	
              II.

            	
              HOUSE
      ACCOUNTS:

            


    

     

     Excluded
from commissions payable for sales in the non-exclusive Territory/Accounts are
sales to the following House Accounts:

    


    No exclusions

    


    
      	
               
      

            	
              III.

            	
              NON-EXCLUSIVE
      TERRITORY/ACCOUNTS:

            


    

     

     The
Company assigns non-exclusive accounts by customer. When a Sales Representative
introduces a potential customer to the Company by providing his name, position
and title, the organization that he is affiliated with and his email address or
telephone number and address, the Company provides approval to the
representative in writing and the potential customer is then entered into our
data base. Once this information is presented to the Company this customer is
designated as the Sales Representatives exclusive account as long as the Sales
Representative Agreement is in effect, provided that this account places an
order with the Company within the 12 month period after the
registration.  If the account has not placed an order within the
twelve month period, the customer must be reregistered with the Company for
another 12 month period.

    


    In
addition to its duties and responsibilities under this Agreement, Develco may
solicit customers for the Company’s Products, and as such may also become a
Sales Representative bound by a separate Sales Representative
Agreement.

    



    
      
         


      

      
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