Manufacturer's Exclusive Representative Agreement

CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE LOCATIONS OF THE OMITTED MATERIALS ARE INDICATED BY THE FOLLOWING NOTATION: [OMITTED MATERIAL]


MANUFACTURER'S EXCLUSIVE REPRESENTATIVE
AGREEMENT


This Agreement made and entered into this 31st day of July 2001, by and between Eagle Test Systems. Inc. of 620 S. Butterfield Rd., Mundelein, Illinois, U.S.A. (hereafter ETS) principle/manufacturer, and Representative, Cogent International Inc. of 115 Broadway 15th FL, New York, New York, 10006 (hereafter Representative). In consideration of the mutual covenants contained herein, the parties agree as follows:


DEFINITIONS


a) Products shall mean any hardware products directly manufactured and/or incorporated into products by ETS.


b) Software shall mean all computer software, software code, embedded software, or software enabled techniques generated by ETS.


c) Third Party Software shall mean any software products incorporated into ETS products by ETS, but developed and licensed by someone other than ETS.


d) Documentation means all documents that describe ETS' manufacturing process or methods, general functional capabilities, limitations, and operating-requirements of either Hardware or Software.


e) Updates shall mean the updates, modifications, improvements, and enhancements of the Software.


f) Spare Parts means hardware normally sold separately as line items per published price list, or modules, fuses, or relays as would be found in an ETS spares kit.


EXCLUSIVE REPRESENTATIVE


ETS hereby appoints Cogent International Inc. as exclusive representative in the territory known as China, including Hong Kong Island, for ETS products.


RESPONSIBILITIES


ETS RESPONSIBILITIES


(i) ETS agrees to make every reasonable effort to manufacture quantities of the Products sufficient to meet the sale requirements of representative.


(ii) ETS agrees to provide a Product Price List to Representative upon its request. ETS will furnish representative written notice of any price changes made by ETS, at least thirty (30) days prior to said changes.


(iii) All items currently manufactured by ETS may be subject to change at ETS' sole discretion. Representative shall be entitled to receive written notice of any changes in the standard product offering at least forty-five (45) days prior to ETS' termination of manufacturing of said product affected by such change.


(iv) ETS agrees to supply Software by appropriate media, such as magnetic tape or Compact Disk, and ETS product user's manuals and Documentation thereof upon acceptance of the order from representative.


(v) ETS agrees to make Representative aware of any product updates as they are made available by ETS for sale to customers.


(vi) ETS agrees to provide reasonable amounts of technical assistance to representative in a manner deemed appropriate and confirmed by written agreement by both parties.


(vii) ETS shall make spare parts of the Products available to representative for a period of one year from the last date of shipment of such model at then current prices, notwithstanding termination of this agreement. Generally, it is ETS' policy to provide to Customers (non-representatives) availability of spare parts for a period of ten years from date of purchase.


ETS PRODUCT WARRANTY


(i) Hardware Warranty


ETS shall warrant its New Products to be free from defects caused by faulty materials or poor workmanship and to conform to specifications furnished or approved by ETS for a period of (1) one year from date of shipment to representative or customer. During the warranty period, ETS shall have sole discretion in the manner in which correction of reported product errors or. failures are made. If ETS deems it appropriate, it may replace defective-products or make a refund of the payment for any Products that are returned by representative. The warranty period shall begin when system is installed and successfully completing the system diagnostic program.


(ii) Software Warranty


ETS warrants the Software and Updates to conform to documents furnished or approved by ETS for (1) one year from date of shipment to representative. ETS liability under this warranty is limited to correcting the errors, replacing or making refund payment at its option for any Software or Updates that are returned by representative.


(iii) ETS agrees to indemnify and hold harmless representative and its customers against all damages and costs, including reasonable legal fees, which may be assessed against representative


or its customers in any claim by third parties alleging unlawful acts or omissions to act where the alleged liability of representative or its customers arises by reason of the use or sale of any item manufactured by ETS and delivered to representative or its customers, provided that representative or its customers give ETS written notice of all such claims or actions within thirty (30) days of receipt of notice of said claim. In the event either the representative or its customer seeks ETS' indemnification of such damages, either party must allow ETS the opportunity to elect to take over, settle, or defend the same through consul of its own choice and under its sole discretion and at its own expense, and will make available to ETS all defenses against such claims, known or available to representative or its customers.


(iv) The foregoing warranties are in lieu of all other warranties, expressed or implied, including any and all warranties of merchantability and fitness for a particular use. In no event shall ETS be liable for special or consequential damages.


REPRESENTATIVE RESPONSIBILITIES


(i) Representative will be responsible for identifying customers/prospects, making product presentations (with or without ETS assistance as deemed appropriate), providing contact between ETS and the customer/prospect in a timely manner, all at representatives' own expense. The representative will make available a trained staff to meet these responsibilities (number of staff shall be agreed to by both parties in writing), but must include a person trained in performing equipment diagnostics, field service (at board replacement level) and system setup/installation. ETS agrees to provide technical training to representative staff at ETS-Mundelein. The cost of travel for representative personnel will be the responsibility of representative. The cost of providing the facilities and staff for the representative for said training will be the responsibility of ETS.


(ii) Representative must make the service of product support available to all customers within its region both during the warranty period and after warranty. After warranty support services shall be made available to customers at a charge deemed reasonable by both parties in writing. In an effort to provide such services, Representative must have a minimum staff capable of supporting said function. (number of staff shall be agreed to by both parties in writing). ETS agrees to provide technical training to representative staff at ETS-Mundelein. The cost of travel for representative personnel will be the responsibility of representative. The cost of providing the facilities and staff for the representative for said training will be the responsibility of ETS.


(ii) (a) If Representative requires the assistance of Eagle personnel to install or service systems at the customer site, Representative will cover all transportation, lodging and meals for these personnel. This action shall be deemed mandatory if any problem remains unresolved for 3 consecutive working days.


(iii) Representative will use its best efforts to promote marketing of the Products, and will not promote, market, or sell any competing product. In the event that Representative seeks to engage in a relationship with a company within the automatic test industry, and hence competitive with ETS products, Representative shall make ETS aware of such opportunity and afford FTS the opportunity to terminat ...