MARKETING AGREEMENT
MARKETING AGREEMENT, dated as of October 24, 1996 (the "Agreement"),
between IAT Holdings, Inc., a Delaware corporation (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 produces worldwide and arranging
financing for customers; and
WHEREAS, General has performed services for the Company's wholly-owned
subsidiary IAT AG, a corporation organized under the laws of Switzerland, since
early 1996 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) 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, and shall only do so
with prior written approval.
Section 3. Term. Subject to Section 5 hereof, this Agreement shall be for a
term of five years, commencing on the date hereof and ending on October 24, 2001
(the "Term").
Section 4. Compensation. For services rendered or to be rendered by General
pursuant to this Agreement, the Company shall pay or issue to General the
following:
(a) $100,000 for services to be performed by General during the Term,
which shall be paid on the date hereof.
(b) $300,000 payable at such time as the Company's consolidated
stockholders' equity exceeds $6,000,000 and an additional $100,000 payable
at such time as the Company's consolidated stockholders' equity exceeds
$8,000,000; provided, that the current liabilities of Holdings used to
determine the consolidated stockholders' equity of the Company shall not
exceed $3,500,000 and, to the extent it exceeds $3,500,000 any such
additional amounts shall not reduce such stockholders' equity.
Section 5. Termination. The Company or General may terminate this Agreement
at any time after June 30, 1997 if the Company's working capital does not exceed
$4,000,000 by such date (the "Termination Date"), provided, however, that in the
event the Company's working capital exceeds such amount by the Termination Date,
this Agreement shall not be terminated and shall be a valid and binding
obligation upon the parties during the Term.
Section 6. 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. 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 7. Confidentiality; Non-Competition. 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 and upon the prior written approval of the Company. Subject to the
limitations set forth herein, General agrees that during the Term and for a
period of two years thereafter it shall not directly
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or indirectly own, manage, control, participate in, consult with, render
services for, or in any manner engage in any business competing with the
business of the Company as such business exists within any geographical area in
which the Company conducts its business. In the event the Company breaches its
duties or obligations under this Agreement, the Company agrees that General
shall not be bound by this Agreement, except for the confidentiality provisions
contained in this Section 7.
Section 8. Further Assurances. During the Term, the Company shall use its
reasonable good faith efforts to maintain and promote its products.
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. The parties waive any right they
may have to assert the doctrine of forum non conveniens or to object to such
venue, and hereby consent to court ordered relief.
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 assigns. The rights and obligations of General
under this Agreement (with the exception of those rights in Section 4 hereof)
shall not be assignable.
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 or delivery by facsimile to the party
to be notified or four (4) days after deposit with an
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air courier or the United States Post Office, by registered or certified mail,
postage prepaid 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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
IAT HOLDINGS, INC.
By: /s/ Xx. Xxxxxx Xxxx
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Name:
Title:
Address:
Facsimile telephone number:
GENERAL CAPITAL
By: /s/ Xxxxx Xxxx
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Name:
Title:
Address:
Facsimile telephone number:
