Exhibit 10(ag)
STRATEGIC ALLIANCE
AND TECHNOLOGY LICENSE AGREEMENT
This Strategic Alliance and Technology License Agreement ("Agreement") is
entered into as of May 8, 2000 among NCT Group, Inc. ("NCT"), a Delaware
corporation, Advancel Logic, Inc. ("Advancel"), a California corporation and a
wholly owned subsidiary of NCT, and Infinite Technology Corporation ("ITC"), a
Delaware corporation.
WITNESSETH:
WHEREAS, Advancel has developed certain proprietary technology and designs
for JAVA(TM) embedded microprocessors to significantly enhance the rate of
instruction execution of such microprocessors. Advancel's technology and designs
are known as the "tiny J" (TJ) and "tiny2J" (T2J) microprocessor designs (the
"TJ Technology" and the "T2J Technology," respectively);
WHEREAS, Advancel has entered into a license agreement with ST
Microelectronics S.A. and Microelectonics S.r.l., a French and an Italian
company, respectively (collectively "ST") for the license and further
development of the T2J Technology (the "ST Agreement"), a true, correct and
complete copy of which has been attached and incorporated herein by reference;
and
WHEREAS, ITC has developed proven secure architecture and advanced
nonvolatile memory technology, advanced DSP chip technology and is experienced
in the design, prototyping and manufacture of JAVA(TM) based microprocessors.
NOW THEREFORE, in consideration of the above and the representations,
warranties and covenants hereinafter set forth, the parties agree as follows:
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Java(TM) is a trademark of Sun Microsystems, Inc.
ARTICLE I LICENSES
Section 1.1 TJ Technology License. NCT and Advancel hereby grant to ITC an
exclusive, irrevocable worldwide license, with right to sublicense, to design,
make, use, transfer, market and sell products and intellectual property
(including software and microprocessor designs) incorporating or based upon the
TJ Technology. Such license to the TJ Technology shall continue and be
irrevocable by NCT and Advancel for so long as ITC meets its continuing royalty
payment obligations to NCT set forth in Article II herein.
Section 1.2 T2J Technology License. NCT and Advancel hereby grant to ITC an
exclusive, perpetual, irrevocable worldwide license to design, make, use,
transfer, market and sell products and intellectual property (including software
and microprocessor designs) incorporating or based upon the T2J Technology. The
exclusivity of such license shall be subject to the rights of ST with respect to
the T2J Technology as set forth in the ST Agreement and any amendments and
changes that will be negotiated for the ST Agreement. This license of the T2J
Technology does not include the right to sublicense to any other person or
entity. Such license to the T2J Technology shall continue and be irrevocable by
NCT and Advancel for so long as ITC meets its continuing royalty payment
obligations to NCT set forth in Article II herein.
ARTICLE II LICENSE FEES AND ROYALTIES
Section 2.1 Initial Payment. In consideration of the licenses granted in Article
I herein, ITC shall as soon as practical after execution and delivery of this
Agreement by NCT and Advancel, issue to NCT 1,200,000 shares of common stock of
ITC having an agreed upon value of $5.00 per share.
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Section 2.2 Royalties for TJ Technology. ITC agrees to pay to NCT the following
royalty on each microprocessor or semiconductor chip sold by ITC utilizing or
incorporating the TJ Technology:
a. $0.20 per chip for the first chips sold until $100,000 of royalty has been
paid;
b. $0.15 per chip for the next chips sold until an additional $500,000 of
royalty has been paid;
c. $0.10 per chip sold by ITC thereafter until second anniversary of this
Agreement, not counting the first chips sold having an aggregate royalty
payment of $600,000 as provided in Sections 2.2(a) and (b) above;
d. $0.08 per chip sold by ITC after the second anniversary of the Agreement
and the aggregate royalty payments have been paid as provided in Sections
2.2(a) and (b); and
e. $0.05 per chip sold by ITC at any time after the fourth anniversary of this
Agreement.
Section 2.3 Royalties for T2J Technology. ITC agrees to pay to NCT the following
royalty on each microprocessor or semiconductor chip sold by ITC utilizing or
incorporating the T2J Technology:
a. $0.05 per chip for the first chips until $1,000,000 in royalty has been
paid; and
b. $0.025 per chip sold by ITC at any time thereafter, not counting the first
chips sold as provided in Section 2.3(a) above.
Section 2.4 Sublicense Fees. ITC agrees to pay to NCT the following sublicense
fees for TJ technology after any expenses associated with the granting of the
sublicense has been deducted:
a. 50% of all sublicense fees received for the first 24 months of this
Agreement;
b. 30% of all sublicense fees received for the second 24 months of this
Agreement; and
c. 20% of all sublicense fees received thereafter.
ARTICLE III AUDITS
ITC and NCT shall keep full and accurate books and records pertaining to their
respective performance under this Agreement for a period of at least three (3)
years after the date a given monthly payment is made by ITC or NCT to the other
(applicable "Party"). ITC or NCT shall permit an independent certified public
accountant selected by the other and reasonably acceptable to both, to examine
such books and records, at their own sole cost and expense, upon reasonable
notice during normal working hours, but not later than three (3) years following
the payment in question, for the sole purpose of verifying the royalty payments
and reports and accountings related thereto. Such accountant shall not disclose
to the auditing Party any other information of audited Party. Prompt adjustment
shall be made to compensate for any errors or omissions disclosed by such
examination. In the event such examination shows underreporting and underpayment
in excess of five percent (5%) for any twelve (12) month period, then Party
underpaying shall pay the underpaid Party the cost of such examination together
with any additional sum that would have been payable to the underpaid Party had
underpaying Party reported correctly, plus interest at the rate of two per cent
(2%) over the prime rate as published in the Wall Street Journal during the
period of delinquency.
ARTICLE IV DOCUMENTATION; FURTHER DEVELOPMENT
Section 4.1 Documentation; Further Assurances. NCT and Advancel agree to deliver
to ITC as promptly as practical, all documentation, files, data sheets,
presentation material, technology files, marketing data and other information in
whatever form in their possession or control relating to the TJ and T2J
Technology. Such documentation, files and other materials shall include copies
of all materials previously provided to ST. Each of NCT and Advancel, on the one
hand, and ITC on the other, agree to cooperate and use their reasonable best
efforts to secure and transfer to ITC's possession all information,
documentation, files and other materials regarding the TJ Technology and the T2J
Technology, including the retrieval of such information, documentation, files
and other materials from prospective customers, individuals or other companies
given to such customers, individuals or other companies by Advancel or any of
Advancel's former employees or consultants.
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Section 4.2 Further Development. Should the TJ Technology or the T2J Technology
as delivered to ITC prove to be incomplete or corrupted, NCT agrees to fund and
ITC agrees to further develop the TJ Technology and the T2J Technology as is
contemplated by this Agreement. ITC agrees to commence its development efforts
as soon as practical once the parties agree upon a budget and timetable, with a
minimum budget to cover ITC's development costs of $1,000,000. The minimum
budget will be paid by NCT to ITC in installments as follows, provided that if
ITC completes all required development more expeditiously than as contemplated
by the timetable for the installments below, all outstanding installments shall
accelerate and be due upon such completion
a. $50,000 in cash by March 31, 2000;
b. $50,000 in cash by April 30, 2000;
c. $100,000 in NCT common stock by May 31, 2000;
d. $100,000 in NCT common stock by June 30, 2000;
e. $100,000 in NCT common stock by July 31, 2000;
f. $100,000 in NCT common stock by August 30, 2000;
g. $100,000 in NCT common stock by September 30, 2000;
h. $100,000 in NCT common stock by October 31, 2000;
i. $100,000 in NCT common stock by November 30, 2000;
j. $100,000 in NCT common stock by December 31, 2000; and
k. $100,000 in NCT common stock by January 31, 2001.
Section 4.3 Ownership. ITC shall own all right, title and interest in and to the
improvements and modifications of and further developments in the TJ Technology
and the T2J Technology as developed by ITC under this Article IV and thereafter,
provided that the royalty payment obligations of ITC to NCT set forth in Article
II herein shall continue.
ARTICLE V JAVA(TM) Processor Development; Support
Section 5.1 DSP SoC. ITC shall develop, make, market and sell a JAVA(TM) based
DSP System-on-Chip ("SoC") semiconductor chip based upon the TJ Technology for
which NCT shall pay ITC $1,000,000 in Non-Recurring Engineering Expenses (NRE").
The target market price to NCTI for the semiconductor chip with minimum input
and output pins (typically less than 100 pins) is $5.00 per chip. NCT shall pay
ITC the NRE in cash or NCT stock at NCT's choice as follows:
a. $333,333 upon completion of the TJ Technology and the T2J Technology as
contemplated by Article IV herein so that SoC development by ITC can begin;
b. $333,333 upon the initial release of the semiconductor chip product for
fabrication of the chip; and
c. $333,334 upon the delivery of prototype chip samples from the initial
development fabrication.
Section 5.2 General Propose Processor. ITC shall develop, make, market and sell
a general purpose JAVA(TM) processor based upon the TJ Technology for which NCT
shall pay ITC $500,000 in NRE. The target market price to NCTI for the processor
with minimum input and output pins (typically less than 100 pins) is $3.00 per
chip. NCT shall pay ITC the NRE in cash or NCT stock at NCT's choice as follows:
a. $150,000 upon completion of the TJ Technology and the T2J Technology as
contemplated by Article IV herein so that development by ITC can begin;
b. $150,000 upon the initial release of the semiconductor chip- product for
fabrication of the chip; and
c. $200,000 upon the delivery of prototype chip samples from the initial
development fabrication.
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Article 5.3 Support. ITC shall assume the support obligations of ST under ST
Agreement at an expense rate of 80% of the NRE to be paid by ST under the ST
Agreement, but in no event less than $80 per hour. NCT shall pay over to ITC 20%
of the royalties received from ST for its use of the existing TJ Technology
and/or the existing T2J Technology. ITC shall be entitled to receive 80% of the
NRE and 50% of the royalties actually paid by ST for the next generation or
modifications of the TJ Technology and/or the T2J Technology developed by ITC.
ARTICLE VI ADVANCEL EMPLOYEES AND ASSETS
Article 6.1 Advancel Employees. ITC shall have the unconditional right to offer
employment or consulting positions with ITC to any current or former employee or
consultant of Advancel. NCT and Advancel shall use their reasonable best efforts
to encourage and convince current and former employees and consultants of
Advancel to accept positions with ITC if offered by ITC. If any such individual
agrees to release NCT and Advancel from any and all claims and disputes arising
from their prior relationship with Advancel, NCT and Advancel shall agree to
release such individual from any and all claims and disputes arising from such
relationship, so long as they agree to work and/or consult with ITC in good
faith for a minimum of two years. NCT and Advancel shall indemnify and hold
harmless ITC from any claims or disputes arising between NCT and Advancel, on
the one hand, and any current or former employee or consultant of Advancel on
the other.
Section 6.2 Assets. ITC shall have the right to take possession of and Advancel
hereby agrees to assign, transfer and convey to ITC all of its right, title and
interest in and to its tangible assets, including without limitation CAD tools,
furniture, network assets, telephones and all other equipment. ITC shall assume
no liabilities of Advancel and NCT and Advancel agree to indemnify and hold
harmless from any such liabilities. Advancel shall deliver to ITC upon
reasonable request any documents, bills of sale or other instruments to record
or evidence such transfer and assignment of assets to ITC.
Section 6.3 Relocation. NCT and Advancel agree that they shall remain
responsible for any and all expenses associated with the current Advancel
facility. ITC and NCT agree to relocate the current Advancel facility and
employees as soon as practical to a lower cost facility for which ITC shall be
responsible. NCT and Advancel shall pay for the actual relocation, license
transfer fees and set up expenses as supported by a budget mutually agreed to by
NCT and ITC.
ARTICLE VII STRATEGIC ALLIANCE
Section 7.1 Joint Development. If ITC and NCT agree jointly to develop
microprocessors or semiconductor chips not otherwise contemplated hereby, either
under a funded development project or ITC's Publishing Business model (including
the general purpose JAVA(TM) processor and a JAVA(TM) based DSP SoC), ITC shall
agree to sell such microprocessors or chips at the best price charged to ITC's
customers for such microprocessors or chips or for microprocessors or chips of
similar complexity, performance and manufacturing technology. NCT shall have the
right to resale such microprocessors or chips and to incorporate or use them in
NCT-sponsored products.
Section 7.2 Apogee Software. Except as provided in or contemplated by the ST
Agreement, NCT shall assist ITC in the assumption of all rights to the Apogee
software and support tool under the agreement between Apogee and NCT and
Advancel.
Section 7.3 NCT Algorithms. NCT agrees to negotiate in good faith to license its
algorithms to ITC on a non-exclusive basis for use by ITC with any ITC-developed
technology at customary terms on an arms-length basis.
Section 7.4 First Offer Option. NCT and Advancel hereby grant to ITC the option
to acquire all of NCT's and Advancel's right, title and interest in the TJ
Technology and the T2J Technology at a price to be determined in good faith
negotiations between the parties, and upon sustained, broad market support for
the price per share of ITC's common stock. If the parties are unable to come to
terms for the exercise of such option, such right to acquire shall extinguish
provided that NCT and Advancel keep ITC reasonably informed of any intention to
sell their right, title and interest in the TJ Technology and the T2J
Technology.
Section 7.5 Registration of NCT Shares. NCT agrees to place in escrow for ITC's
benefit 3,000,000 shares of NCT Common Stock having a Fair Market Value of
$2,400,000 as of the date of the Agreement. These NCT shares are placed in
escrow to secure NCT's obligation to fund the TJ Technology and T2J Technology
development and microprocessor and semiconductor chip development as provided in
Articles IV and V herein. NCT agrees to file a registration statement to
register the NCT shares, on a best efforts basis, within thirty days of the
execution of the Agreement. ITC agrees that such shares may be released from
escrow periodically on a monthly basis back to NCT or its designee if the then
Fair Market Value of NCT's common stock then held in escrow exceeds NCT's
outstanding funding obligations under Articles IV and V herein. Any shortfall in
its funding obligations shall be paid by NCT to ITC in cash.
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ARTICLE VIII Confidentiality
Section 8.1 Confidential Information. Each Party transferring confidential
information to the other Party shall assess all information transferred under
this Agreement to determine the requirement or lack thereof for treatment as
Confidential Information by the Receiving Party. Except as provided herein, the
Receiving Party agrees to use the same care and discretion, but at least
reasonable care and discretion, to avoid disclosure, publication, or
dissemination of received ITC or received NCT Confidential Information, as the
case may be, outside of the Receiving Party as the Receiving Party employs with
similar information of its own which it does not desire to publish, disclose, or
disseminate or to permit unauthorized use by others. All Confidential
Information transferred under this Agreement shall be conspicuously marked (on
each page which is loose leafed, or on the cover of permanently bound documents)
by the Transferring Party with an appropriate and conspicuously obvious legend
such as "ITC Confidential Information ", or "NCT Confidential Information", or
any other appropriate confidentiality legend, as the case may be, such legend to
clearly indicate to a person viewing or otherwise accessing such information
that it is of a confidential nature.
Section 8.2 Non-Tangible Form. Any transfer of Confidential Information which is
made in non-tangible form (for example, orally or visually) shall be confirmed
in writing by the Transferring Party together with a written summary thereof to
the Receiving Party, with a copy to the Program Managers of both Parties, within
thirty (30) days after the date of such transfer.
Section 8.3 Period of Confidentiality. The period of confidentiality applicable
to Confidential Information transferred under the provisions of Section 8.1
shall extend throughout the period of use under the license grants in Article I
and for five (5) years thereafter in respect of all ITC Confidential Information
included in the RADcore Technology Package and for five (5) years measured from
the date of first receipt under this Agreement in respect of all other
Confidential Information.
Section 8.4 Third Party Disclosure. Disclosure to a third party of Confidential
Information disclosed by a Transferring Party to a Receiving Party under this
Agreement shall not be precluded if such disclosure is:
a. In response to a valid order of a court or other governmental body of the
United States or any political subdivision thereof; provided, however,
that the Receiving Party shall first have made a good faith effort
promptly to obtain a protective order requiring that the information
and/or documents so disclosed be used only for the purpose for which the
order was issued; or
b. Otherwise required by law.
Section 8.5 Exceptions. The obligations specified above will not apply to any
Confidential Information which is disclosed to a Receiving Party hereto, that:
a. Is already in the possession of the Receiving Party without obligation of
confidence;
b. Is independently developed by the Receiving Party;
c. Is or becomes publicly available without breach of this Agreement;
d. Is lawfully obtained by the Receiving Party from a third party or parties
without the duty of confidentiality to the third party; or
e. Is released for disclosure by the Transferring Party with its written
consent.
ARTICLE IX Publicity
Neither Party shall disclose any of the terms and conditions of this Agreement
to any third party without the prior consent of the other Party. However both
Parties may disclose to third parties and publish the existence of this
Agreement and the general subject matter thereof without prior consent of or
notice to the other Party. Any additional disclosure or publication of details
of this Agreement or the relationship between the Parties under this Agreement
shall be subject to the prior written agreement to the content and form thereof
by both Parties.
ARTICLE X Indemnification
Section 10.1 Infringement. NCT agrees that it will at its expense timely defend
any suit instituted against ITC and indemnify ITC against any award of damages
and costs made against ITC in any such suit insofar as the same is based on a
claim that ITC's use of the TJ Technology and T2J Technology in the design of
integrated circuits infringes any United States Patent, Copyright, or trade
secret right provided ITC gives NCT timely notice in writing of the institution
of such suit and permits NCT through its counsel to defend the same and
provides, at the expense of NCT, all available information, assistance and
authority to so defend. If the infringement was caused by ITC's specific use of
other technology in conjunction with the T2J or TJ technology and the use of the
other technology results in an infringement, NCT is relieved of any obligations
defined in Article X. NCT shall have control of the defense of any such suit
including appeals and of all negotiations for settlement, including the right to
effect the settlement or compromise thereof.
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Section 10.2 Remedy. If use of the TJ Technology and T2J Technology by ITC is,
in any suit, held to constitute infringement and use thereof by ITC is enjoined,
NCT may at its option and expense procure for ITC the right to continue using
the TJ Technology and T2J Technology or replace or modify the TJ Technology and
T2J Technology so that it becomes non-infringing, provided, however, that the
essential attributes of the TJ Technology and T2J Technology remain the same.
Section 10.3 LIMITATION OF LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY
OF NCT FOR INFRINGEMENT OF COPYRIGHTS, PATENTS, TRADE SECRETS, OR
OTHER PROPERTY RIGHTS
ARTICLE XI REPRESENTATIONS AND WARRANTIES OF NCT AND ADVANCEL
NCT and Advancel jointly and severally represent and warrant to ITC as of the
date hereof as follows:
Section 11.1 Incorporation; Power and Authority; No Conflict. Each of NCT and
Advancel (a) is duly incorporated, validly existing and in good standing under
the laws of its place of incorporation; and (b) has the full power and authority
to own and operate its assets and to enter into, execute, deliver and perform
this Agreement, grant the License Rights granted herein and has obtained all
necessary approvals to enter into and perform this Agreement. The execution,
delivery and performance of this Agreement by NCT and Advancel respectively will
not violate, conflict with or result in a default under its certificate of
incorporation, bylaws or other agreements by which it or its assets are bound.
Section 11.2 Enforceability. This Agreement is valid, binding and enforceable
against each of NCT and Advancel in accordance with its terms, subject as to
enforceability as to laws affecting bankruptcy, creditors rights and general
equitable principles.
Section 11.3 NCT Shares. When issued against the consideration contemplated
hereby, such share of NCT common stock to be issued hereunder will be duly
authorized, validly issued, fully paid and non-assessable.
Section 11.4 ITC Common Stock.
a. No Registration. NCT fully understands that the ITC common stock to be
issued hereunder (the "ITC Shares") has not been registered under the
Securities Act or under any state securities laws and that no transfer of
the Common Stock or any interest therein may be made, except pursuant to
an effective registration statement under the Securities Act and
applicable state securities laws or an exemption therefrom.
b. Investment Intent. NCT is purchasing the ITC Shares solely for its own
account and not as nominee or agent for any other person and not with a
view to, or for offer or sale in connection with, any distribution thereof
(within the meaning of the Securities Act and the rules and regulations
promulgated thereunder) that would be in violation of the federal and state
securities laws.
c. Accredited Investor. NCT is (i) an "accredited investor" as that term is
defined in Rule 501(a) promulgated under the Securities Act, (ii) has such
knowledge and experience of financial, business and investment matters as
to be capable of evaluating the merits and risks of this investment, (iii)
has the ability to bear the economic risks of this investment, and (iv) has
been afforded the opportunity to ask questions of, and to receive answers
from, ITC and to obtain additional information, to the extent ITC has such
information or could have acquired it without unreasonable effort or
expense, all as necessary for ITC to make an informed investment decision
with respect to the purchase of the ITC Shares.
d. Transfer Restrictions. NCT understands and agrees that the transfer of the
ITC Shares purchased under this Agreement is subject to the conditions of
this Agreement. If NCT desires to sell or otherwise dispose of all or any
part of the ITC Shares (other than pursuant to an effective registration
statement under the Securities Act or a sale or other disposition made
pursuant to Rule 144 promulgated under the Securities Act) and if all the
other conditions in this Agreement concerning such sale or disposal are
satisfied, NCT shall deliver to ITC an opinion of counsel, reasonably
satisfactory in form and substance to ITC, that an exemption from
registration under the Securities Act is available. All certificates
representing any of the ITC Shares subject to the provisions of this
Agreement shall have been endorsed on the face thereof a legend
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER STATE SECURITIES LAWS OF ANY STATE. NO OFFER, TRANSFER OR
SALE OF THESE SHARES OR ANY INTEREST THEREIN MAY BE MADE EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM.
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e. Registration of Securities. ITC agrees that if, at any time and from time
to time, the Board of Directors of ITC shall authorize the filing of a
registration statement under the Securities Act of 1933 ("Registration
Statement"), ITC will (i) promptly notify NCT that such Registration
Statement will be filed and that the ITC shares which are then held by NCT,
will be included in such Registration Statement at NCTs' request. The ITC
shares held by NCT will be registered on a best efforts basis, in the
Registration Statement, subject to underwriter approval, and may be
withheld by the underwriter at its sole discretion.
ARTICLE XII REPRESENTATIONS AND WARRANTIES OF ITC
ITC represents and warrants to NCT and Advancel as of the date hereof as
follows:
Section 12.1 Incorporation; Power and Authority; No Conflict. ITC (a) is duly
incorporated, validly existing and in good standing under the laws of its place
of incorporation; and (b) has the full power and authority to own and operate
its assets and to enter into, execute, deliver and perform this Agreement and
has obtained all necessary approvals to enter into and perform this Agreement.
The execution, delivery and performance of this Agreement by ITC will not
violate, conflict with or result in a default under its certificate of
incorporation, bylaws or other agreements by which it or its assets are bound.
Section 12.2 Enforceability. This Agreement is valid, binding and enforceable
against ITC in accordance with its terms, subject as to enforceability as to
laws affecting bankruptcy, creditors rights and general equitable principles.
Section 12.3 ITC Shares. When issued against the consideration contemplated
hereby, each share of ITC common stock to be issued hereunder will be duly
authorized, validly issued, fully paid and non-assessable.
ARTICLE XIII MISCELLANEOUS
Section 13.1 Successors and Assigns. Except as otherwise provided herein, all of
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto. Except as otherwise specifically authorized herein, no
party to this Agreement may assign any of its rights under this Agreement to any
third party without the express prior written consent of the other parties
hereto which consent will not be unreasonably withheld.
Section 13.2 Amendment. This Agreement may be amended only by a written
instrument signed by the parties hereto.
Section 13.3 Export License. Each Party agrees that it will not in any form
export, re-export, resell, ship, or divert or cause to be exported, re-exported,
resold, shipped or diverted, directly or indirectly, any product or technical
data or software furnished hereunder, or the direct product of such technical
data or software to or which the United States Government or any agency thereof
at the time of export or re-export requires an export license or other
governmental approval without first obtaining such license or approval.
Section 13.4 Contingency. Anything contained in the Agreement to the contrary
notwithstanding, the performance of the obligations of the Parties hereto shall
be subject to all laws, both present and future, of any government having
jurisdiction over the Parties hereto, and to orders, regulations, directions, or
requests of any such government, or any department, agency, or corporation
thereof, and to any contingencies resulting from war, acts of public enemies,
strikes or other labor disturbances, fires, floods, acts of God, or any causes
of like or different kind beyond the control of the Parties, and the Parties
hereto shall be excused from any failure to perform or any delay in the
performance of any obligation hereunder to the extent such failure or delay is
caused by any such law, order, regulation, direction, request, or contingency.
Section 13.5 No Joint Venture, Agent. Nothing contained herein, or done in
pursuance of this Agreement, shall constitute the Parties as entering upon a
joint venture or shall constitute either Party hereto the agent for the other
Party for any purpose or in any sense whatsoever.
Section 13.6 APPLICABLE LAW. THE LAWS OF THE STAE OF DELAWARE SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAW.
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Section 13.7 Notice. Any notices required or permitted hereunder shall be given
to the appropriate party at the address previously provided or at such other
address as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery; if sent by telephone facsimile, upon confirmation of
receipt; or if sent by certified or registered mail, postage prepaid, three days
after the date of mailing. Notice hereunder shall be deemed to have been
sufficiently given when delivered in writing by certified mail return receipt
requested by either Party to the other and directed to:
If to NCT: If to INFINITE TECHNOLOGY:
NCT Group, Inc. Infinite Technology Corporation
One Dock Street 1778 North Plano Road
Stamford, CT 06902 Suite 310
Attn: President Richardson, TX 75081-1958
Attn: President
Section 13.8 Change of Address. Either Party may change its address for the
purposes of this section by a notice given to the other Party in the manner set
forth above.
Section 13.9 Integration. This Agreement and any documents or agreements to be
executed and delivered pursuant hereto, contain the entire understanding of the
parties with respect to the subject matter hereof.
Section 13.10 Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
Section 13.11 Waivers. No waiver of any term, provision or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed as a
further waiver of any such term, provision or condition or as a waiver of any
other term, provision or condition.
Section 13.12 Severability. If any provision herein, or the application thereof
to any circumstance, is found to be unenforceable, invalid or illegal, such
provision shall be deemed deleted from this Agreement or not applicable to such
circumstance, as the case may be, and the remainder of this Agreement shall not
be affected or impaired thereby.
Section 13.13 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
Section 13.14 Disputes. The Parties agree that any disputes which arise out of
or are based upon this Agreement shall be subject to the following procedures:
a. before proceeding under Section 13.14, executive level managers of both
Parties will meet promptly and together review a presentation by each Party
concerning the matter in dispute. Only if the executive level managers are
unable to resolve the dispute within thirty (30) days of the meeting shall
either Party be free to institute a claim or action.
b. if proceedings under Section 13.14 a. fail to revolve a dispute, the
Parties agree to submit such dispute to mediation before any legal or
administrative process may be initiated by either Party, except disputes
relating to intellectual property that by their nature require immediate or
extraordinary relief. There shall be a forty-five (45) day time limit on
this mediation process, beginning from the initial request for mediation,
after which legal remedies may be initiated by either Party. The Parties
agree to cooperate in good faith in the selection of an independent third
party mediator, and to share equally the costs of the mediator's services.
Each Party shall bear their own legal expenses associated with the
mediation process.
IN WITNESSETH WHEREOF, the parties have executed and delivered this
Agreement with legal and binding effect as of the date first above written.
NCT GROUP INCORPORATED INFINITE TECHNOLOGY CORPORATION
By: /s/ MICHAEL J. PARRELLA By: /s/ TIM B. SMITH
----------------------- ----------------
Name: Michael J. Parrella Name: Timothy Smith
Title: C.E.O. Title: C.E.O.
Advancel Logic Corporation
By: /s/ MICHAEL J. PARRELLA
-----------------------
Name: Michael J. Parrella
Title: C.E.O.
