INNOTEK - XXX XXXXXX, INC.
MARKETING AGREEMENT
This Agreement is made and entered into March 28, 1996, by and
between Innotek Corporation ("Innotek"), an Arkansas corporation,
whose principal place of business is Xxxxx 0000, Xxxxx Xxxxxxxx,
000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, and Xxx Xxxxxx,
Inc. ("DCI"), a Georgia corporation, whose principal place of
business is 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000.
RECITALS
WHEREAS, Innotek owns the exclusive licensing right, worldwide
(except for STORS in Japan), pursuant to an agreement with Battelle
Memorial Institute ("Battelle"), to market, develop and
commercialize a sewage-to-oil recovery system ("STORS"), a nitrogen
removal technology ("NitRem") and their associated processes
involving the dual shell pressure balance vessel ("DSPBV"), all of
which are collectively referred to as the "Technologies;" and
WHEREAS, DCI is a real estate development firm engaged in the
business of (1) developing comprehensive real estate communities
including, but not limited to, private sewage and waste water
treatment facilities, and (2) providing advice and assistance to
municipal, local governmental and real estate development entities
with respect to sewage and/or waster water treatment facilities;
and
WHEREAS, the parties have entered into a Proprietary
Information and Exclusivity Agreement on March 13, 1996; and
WHEREAS, DCI desires to assist Innotek in the exploitation of
its Technologies, and Innotek, while desiring to retain ownership
of its license rights in and to the Technologies, is willing to
allow DCI an interest to participate in the commercial exploitation
of the Technologies.
It is agreed as follows:
1. Marketing Agreement. The single purpose of the Marketing
Agreement ("the Agreement") is to market, develop and otherwise
exploit Innotek's proprietary Technologies for any and all
applications for municipal, local governmental, real estate
development, and industrial markets in Georgia and Florida.
2. Contributions.
(a) The contribution of Innotek to the Agreement shall
consist of an exclusive grant of authority to DCI
to exploit any and all applications of the
technologies for municipal, local governmental and
real estate development markets for Georgia and
Florida, and for the exploitation of any and all
applications of NitRem, nonexclusively, for
industrial markets for Georgia and Florida.
Innotek shall also provide DCI with assistance,
consultation, materials, etc. and otherwise provide
reasonable technical and administrative support for
DCI's efforts hereunder.
(b) DCI's contribution to the Agreement shall consist
of providing financial planning, project financing
activities, project development services and
marketing services including, but not limited to,
the following:
(i) marketing the Technologies and other services
of Innotek; and
(ii) identifying municipal, local governmental,
real estate development and industrial
customers in Georgia and Florida; and
(iii) securing contracts and raising debt or equity
financing for said projects undertaken in
Georgia and Florida with municipal, local
governmental, real estate development and
industrial customers.
3. Management and Operation of Future Joint Venture. This
Agreement anticipates that a comprehensive joint venture document
will be executed between Innotek and DCI for the construction and
operation of a specific project. That document shall address an
equitable division of responsibilities, expenses, capital, cash
flow, profits and tax consequences for the specific project. The
parties agree to undertake in good faith to negotiate and execute
a joint venture document based upon the following guidelines:
(a) Innotek shall have full authority to manage the
joint venture using its own facilities and staff to
continue its research development of the
Technologies. Innotek and DCI shall share equally
in the profits of each project.
(b) Innotek shall maintain all books and records
pertaining to the joint venture, which shall be
kept separate and apart from its regular business
and shall be subject to the inspection of DCI at
all times.
(c) Innotek will be responsible for the manufacture,
sale and sublicense of the Technologies and will
make available sufficient personnel to help
accomplish the purpose of the joint venture.
(d) Innotek shall retain title to the licenses covering
the Technologies and to any improvements and new
discoveries pertaining to it, whether or not
patented by it. Innotek shall continue to have
title to all machinery, equipment and supplies used
in the manufacture of the Technologies as well as
to the completed Technologies.
(e) DCI shall forward a summary to Innotek, as contacts
are made by DCI on behalf of the joint venture,
identifying municipal, local governmental, real
estate development, industrial or other end user
customers, as well as a summary of subsequent
contacts with said customers in an effort to market
Innotek Technologies or services. These reports
will serve to document DCI's value added services
should a contract with a municipal, local
governmental, real estate development, or
industrial customer be secured. DCI's marketing
efforts shall include only municipal, local
governmental, real estate development, or
industrial clients independently approached by DCI,
unless Innotek refers leads to DCI in writing for
follow-up activities.
4. Consideration. DCI shall be paid a one time success fee
of two hundred fifty thousand (250,000) warrants convertible to
250,000 shares of restricted Innotek common stock, exercisable
within ten years from date of granting the warrants at a price of
fifty cents ($0.50) per share (as more fully set forth in the
standard Warrant Agreement and Warrant Form), within 90 days upon
the signing of an agreement with a municipal, local governmental,
real estate development or industrial customer to purchase or
utilize any one of the Technologies. The success fee will
applicable where DCI has been instrumental in securing the sale or
construction of a STORS/NitRem/DSPBV. DCI's entitlement to receive
an equity position in Innotek as set forth in this Agreement is
subject to applicable state and federal securities laws.
5. Expenses. Innotek and DCI each shall be responsible for
their own expenses and any other exploitation costs incurred during
the period of this Agreement. DCI may apply to Innotek for
reasonable reimbursement of DCI's out of pocket expenses in advance
of incurring these expenses.
6. Term and Termination. The Agreement shall commence on
April 1, 1996 and continue for a period of ten (10) years. All
conditions of exclusivity for the benefit of DCI shall continue for
only the first twelve (12) months. If Innotek does not cancel
DCI's exclusivity before the end of the first twelve months, it
shall be automatically renewed for a second twelve (12) month
period. However, after this Agreement has been in existence for
two years, if no contracts are signed, the exclusive condition of
the joint venture may be terminated by either party upon one
month's written notice to the other party and DCI's rights to the
Technologies in Georgia and Florida shall thereafter become
nonexclusive.
7. This Agreement contains the entire understanding between
Innotek and DCI with respect to the subject matter hereof and will
be construed in all respects in accordance with the laws of the
State of Arkansas. Notices, demands and communications hereunder
to Innotek or DCI must be given and sent and shall be deemed to
have been given when sent by U.S. certified mail to the following
addresses:
Innotek Corporation Xxx Xxxxxx, Inc.
Xxxxx 0000, Xxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxx 00000
IN WITNESS WHEREOF, the parties have signed this Agreement in
duplicate March 28, 1996.
INNOTEK CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
Chairman and CEO
XXX XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
President