MARKETING AGREEMENT
MARKETING AGREEMENT, dated as of February 4, 1998 (the "Agreement"),
between INTERACTIVE MAGIC, INC., a corporation organized under the laws of the
State of Maryland (the "Company"), and General Capital, a corporation organized
under the laws of Switzerland ("General").
W I T N E S S E T H :
WHEREAS, the Company desires to receive services in connection with (a)
marketing its products worldwide, (b) arranging debt or equity financing for the
Company's products to be purchased by its customers and (c) arranging financing
for the Company's operations, leasing programs, joint ventures and distribution
arrangements generally, in each case for the further enhancement of the
Company's marketing strategy (collectively, the "Objectives"); and
WHEREAS, General has established its expertise in, among other things,
assisting companies in marketing their products worldwide and arranging
financing for customers; and
WHEREAS, General has performed services for the Company since October 1997
as outlined above and the parties now desire to memorialize their agreement and
understanding as to their respective duties and obligations.
NOW, THEREFORE, in consideration of the mutual covenants and agreements,
and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties do hereby covenant and agree, upon the terms
and subject to the conditions hereinafter set forth, as follows:
Section 1. Retention of General. The Company engages General to assist the
Company in achieving its Objectives, and General accepts such engagement,
subject to the terms and conditions of this Agreement.
Section 2. Services. (a) Upon request of the Company and at such times as
are mutually convenient to General and the Company during the Term (as defined
below), General shall provide its services to the Company in connection with the
Objectives.
(b) In connection with performing its services, General and the
Company acknowledge and agree that General may, from time to time, propose
certain arrangements to the Company in connection with its Objectives and
the Company has no obligation to accept such proposals or further obligate
itself.
Section 3. Term. This Agreement shall be for a term of five years,
commencing on the date hereof and ending on February 3, 2003 (the "Term").
-1-
Section 4. Compensation. For services rendered or to be rendered by General
pursuant to this Agreement, the Company shall pay to General $400,000, payable
within five business days following the date upon which the Company's
stockholders' equity equals or exceeds $5,000,000; provided, that in the event
that the Company completes a private placement of equity securities or a
strategic acquisition prior to the date upon which payment hereunder is made
and, as a result of such private placement or acquisition, the Company's
stockholders' equity equals or exceeds $3,000,000, such payment shall thereafter
be payable within five business days following the date upon which the Company's
stockholders' equity equals or exceeds $10,000,000.
Section 5. Marketing Efforts. (a) The Company shall provide General with
certain technical and other information relating to its business and operations
as is reasonable and necessary for General to market the Company's products
pursuant to this Agreement. In addition, the Company shall provide General with
the necessary sales promotion materials to market the Company's products.
(b) The Company shall also make its management available to General and
prospective customers at such reasonable times and locations as is necessary for
General to market the Company's products.
Section 6. Confidentiality. General acknowledges that in the course of its
engagement it will become familiar with trade secrets and other confidential
information ("Confidential Information") concerning the Company and that its
services will be special, unique and extraordinary to the Company. General
agrees that, during the Term and for a period of five years following the Term,
it shall not disclose to any third party any Confidential Information for any
purpose other than the performance of its duties under this Agreement; provided,
that Confidential Information shall not include information that shall become
known to the public or the trade without violation of this Section; and
provided, further, that General shall not violate this Section if Confidential
Information is disclosed by General at the direction of the Company in
connection with the performance of General's duties or if General is required to
provide Confidential Information in any legal proceeding or by order of any
court.
Section 7. Noncompetition. During the term hereof, neither General nor its
affiliates will directly engage in the interactive gaming business, or own or
control an interest in (except as a passive investor owning less than two
percent (2%) of the equity securities of a publicly owned company), or act as
director, officer or employee of, or consultant to, any individual, partnership,
joint venture, corporation or other business entity known to General to be
directly engaged in the interactive gaming business.
Section 8. Further Assurances. During the Term, the Company shall use its
reasonable good faith efforts to maintain and promote its products.
-2-
Section 9. Representations and Warranties. The Company and General each
represent that (a) it has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, (b) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and (c) this
Agreement is valid and binding upon each party, enforceable against each party
in accordance with its terms.
Section 10. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York, disregarding any New York
principles of conflicts of laws that would otherwise provide for the application
of the substantive laws of another jurisdiction. The parties agree that all
actions or proceedings arising in connection with this Agreement shall be tried
and litigated only in the State of New York.
Section 11. Entire Agreement; Amendments. This Agreement contains the full
and entire understanding and agreement between the parties and supersedes and
preempts any prior understandings or agreements, whether written or oral. The
provisions of this Agreement may be amended or waived only with the prior
written consent of the Company and General.
Section 12. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and shall be enforceable by General and the Company and
their respective successors and permitted assigns. The rights and obligations of
General under this Agreement (with the exception of those rights in Section 4
hereof) shall not be assignable without the prior written consent of the
Company.
Section 13. Counterparts. This Agreement may be executed in two or more
counterparts, each which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
Section 14. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by registered or certified mail, postage prepaid, return receipt
requested and addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by ten (10) days' advance written notice to the other parties,
with a copy for the Company to Smith, Anderson, Blount, Dorsett, Xxxxxxxx &
Xxxxxxxx, L.L.P., P.O. Box 2611, 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, Esq. and a copy for General to
Bachner, Tally, Xxxxxxx & Xxxxxx, LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
0000-0000, Attention: Xxxx X. Xxxxxxxx, Esq.
Section 15. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Marketing
Agreement on the date first written above.
INTERACTIVE MAGIC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
Address: X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx,
Xxxxx Xxxxxxxx 00000
GENERAL CAPITAL
By: /s/ Xxxxx Xxxx
__________________________________
Name: Xxxxx Xxxx
Title: Chairman
Address: Xxxxxxxxxxxxxxxxxxxx 00
XX - 0000 Xxxxxxxxxx, Xxxxxxxxxxx
-4-
