EXHIBIT 4.15
MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this 29th day of April,
1999, by and between CONTINENTAL CAPITAL & EQUITY CORPORATION, located at 000
Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (hereinafter referred to as
"CCEC,") and IFS INTERNATIONAL, INC., located at Renssalaer Technology Park, 000
Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Company.")
WITNESSETH:
For and consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. EMPLOYMENT. Company hereby hires and employs CCEC as an independent
contractor; and CCEC does hereby accept its position as an independent
contractor to the Company upon the terms and conditions hereinafter set forth.
2. TERM. The term of this Agreement shall be from April 30, 1999 through April
29, 2000. The Company has the right to terminate this Agreement following six
consecutive months of representation; said termination must be provided in
written form and submitted to CCEC 30 days prior to the desired termination
date.
3. DUTIES AND OBLIGATIONS OF CCEC. CCEC shall have the following duties and
obligations under this Agreement:
3.1 Establish a financial public relations methodology designed to increase
awareness of the Company within the investment community. 3.2 Assist the Company
in the implementation of its business plan and in accurately disseminating
information to the market place,which information has been provided by the
Company. 3.3 To expose the Company to a broad network of active retail brokers,
financial analysts, institutional fund managers, private investors and active
financial newsletter writers. 3.4 Prepare Company due diligence reports,
corporate profile and fact sheets. 3.5 Conduct a tele-marketing campaign to the
investment community and brokerage community and conduct tele-conferences with a
CCEC moderator, Company executive(s), and brokers, financial analysts, fund
managers and the like. 3.6 Feature the Company(1)s corporate profile or fact
sheet on CCEC(1)s web site(s). 3.7 Assist the Company in the preparation of all
press releases and coordinate the releases via a Company paid account with PR
NewsWire or BusinessWire. 3.8 Fax broadcast press releases, broker updates,
Company newsletters to brokers, institutional fund managers, financial analysts,
and accredited investors. 3.9 E-mail press releases, corporate announcements,
broker updates, Company news developments to a targeted e-mail database of
brokers, institutional fund managers, financial analysts, and accredited
investors. 3.10 Serve as the Company's external publicist and endeavor to obtain
media coverage on the Company in both trade and industry press, on local and
national radio and/or TV programming, in subscription-based financial
newsletters, and on the worldwide web. 3.11 Strive to obtain the Company
institutional analyst coverage and investment banking sponsorship.
ALL OF THE FOREGOING CCEC PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE, FACT
SHEETS, AND QUARTERLY NEWSLETTERS, SHALL BE PREPARED BY CCEC FROM MATERIALS
SUPPLIED TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY PRIOR TO
DISSEMINATION BY CCEC.
4. CCEC(1)S COMPENSATION. Upon the execution of this Agreement, Company hereby
covenants and agrees to pay CCEC as follows: 4.1 $7,500.00 (Seven Thousand Five
Hundred Dollars) cash payable monthly for the term of the Agreement with first
payment of $7,500.00 due upon execution of this agreement and subsequent
payments of $7,500.00 due the 1st of each month, beginning June 1, 1999 and
continuing for the duration of this Agreement (12 months) with the final payment
due April 1, 2000. 4.2 Each time that an industry-recognized research analyst,
defined as any analyst employed by a registered investment banking firm having a
regional or national reputation - who has been first introduced to the Company
by CCEC, initiates published coverage of the Company, then the Company agrees to
pay CCEC an additional one time payment of $5,000.00 (Five Thousand United
States Dollars); when applicable, CCEC will invoice the Company for the
additional fee(s) due. 4.3 Each time that an institutional investor acquires no
less than 5% of the issued and outstanding shares of the Company's common stock,
then the Company agrees to pay CCEC an additional one time payment $5,000 (Five
Thousand United States Dollars); when applicable CCEC will invoice the Company
for the additional fee(s) due. This provision excludes any positioning by
American International Industries, who is already in active discussion with the
company. 4.4 CCEC shall be entitled to receive an option or warrant to purchase
up to 200,000 common shares of the Company's stock, with the following exercise
prices: * 35,000 shares - $3.50 * 45,000 shares - $4.50 * 55,000 shares - $5.50
* 65,000 shares - $6.50
The Company agrees to issue CCEC piggyback registration rights for the common
shares underlying the options/warrants listed above, whereby these shares will
be registered for resale by CCEC on the first applicable S-3 Registration
Statement filed by the Company with the U.S. Securities and Exchange Commission;
said underlying common shares shall be held by the Company until such time as
CCEC elects to exercise its option or warrant to purchase the common shares. The
term of the option/warrant shall expire 12 months from the date the Registration
Statement is deemed effective by the U.S. Securities and Exchange Commission.
5.CCEC(1)S EXPENSES AND COSTS. Company shall pay all reasonable out of pocket
costs and expenses incurred by CCEC, its directors, officers, employees and
agents, in carrying out its duties and obligations pursuant to the provisions of
this Agreement, excluding CCEC(1)s general and administrative expenses and
costs, but including and not limited to the following costs and expenses;
provided all costs and expense items in excess of $500.00 (Five Hundred U.S.
Dollars) must be approved by the Company in writing prior to CCEC(1)s incurrence
of the same: 5.1Travel expenses, including but not limited to transportation,
lodging and food expenses, when such travel is conducted on behalf of the
Company. 5.2 Seminars, expositions, money and investment shows. 5.3 Radio and
television time and print media advertising costs, when applicable. 5.4
Subcontract fees and costs incurred in preparation of research reports, when
applicable. 5.5 Cost of on-site due diligence meetings, if applicable. 5.6
Printing and publication costs of brochures and marketing materials which are
not supplied by the Company. 5.7 Corporate web site development costs. 5.8
Printing and publication costs of Company annual reports, quarterly reports,
and/or other shareholder communication collateral material which are not
supplied by Company. 5.9 Creation, production, and mailing of Inside Wall Street
lead generation pieces and associated fulfillment material and services, i.e.
corporate profiles, presidential cover letters, pre-printed envelopes, 1-800
numbers, postage, list selection, lead distribution, etc., at an established
price of $2.00 per Inside Wall Street piece mailed (minimum of 25,000 pieces).
Company shall pay to CCEC reasonable costs and expenses incurred within ten (10)
days of receipt of CCEC(1)s written invoice for the same, excluding any costs
associated with material and services defined in Section 5.9 above, which are
due and payable in advance of material production.
6. COMPANY(1)S DUTIES AND OBLIGATIONS. Company shall have the following duties
and obligations under this Agreement: 6.1 Cooperate fully and timely with CCEC
so as to enable CCEC to perform its obligations under this Agreement. 6.2 Within
ten (10) days of the date of execution of this Agreement to deliver to CCEC a
complete due diligence package on the Company including all the Company(1)s
filings with the Securities and Exchange Commission within the last twelve
months, the last twelve months of press releases on the Company and all other
relevant materials with respect to such filings, including but not limited to
corporate reports, brochures, and the like; a list of the names and addresses of
all the Company(1)s shareholders known to the Company; and a list of the brokers
and market makers in the Company(1)s securities and which have been following
the Company. 6.3 The Company will act diligently and promptly in reviewing
materials submitted to it from time to time by CCEC and inform CCEC of any
inaccuracies contained therein prior to the dissemination of such materials. 6.4
Immediately give written notice to CCEC of any change in Company(1)s financial
condition or in the nature of its business or operations which reasonably could
be expected to have an adverse material effect on its operations, assets,
properties or prospects of its business. 6.5 Pay when due all costs and expenses
incurred by CCEC under the provisions of this Agreement when presented with
invoices for the same by CCEC. 6.6 Give full disclosure of all material facts
concerning the Company to CCEC and update such information on a timely basis.
6.7 Promptly pay the compensation due CCEC under the provisions of this
Agreement.
7. NONDISCLOSURE. Except as may be required by law, Company, its officers,
directors, employees, agents and affiliates shall not disclose the contents and
provisions of this Agreement to any individual or entity without CCEC(1)s
expressed written consent subject to disclosing same further to Company counsel,
accountants and other persons performing investment banking, financial, or
related functions for Company.
8. COMPANY(1)S DEFAULT. In the event of any default in the payment of CCEC(1)s
compensation to be paid to it pursuant to this Agreement, or any other charges
or expenses on the Company(1)s part to be paid or met, or any part or
installment thereof, at the time and in the manner herein prescribed for the
payment thereof and as when the same becomes due and payable, and such default
shall continue for twenty five (25) days after CCEC(1)s written notice thereof
is received by Company; in the event of any default in the performance of any of
the other covenants, conditions, restrictions, agreements, or other provisions
herein contained on the part of the Company to be performed, kept, complied with
or abided by, and such default shall continue for twenty five (25) days after
CCEC has given Company written notice thereof, or if a petition in bankruptcy is
filed by the Company, or if the Company is adjudicated bankrupt, or if the
Company shall compromise all its debts or assign over all its assets for the
payment thereof, or if a receiver shall be appointed for the Company(1)s
property, then upon the happening of any of such events, CCEC shall have the
right, at its option, forthwith or thereafter to received from the Company all
damages that may be recoverable under applicable law, including costs and
expenses due or coming due hereunder and to recover the same from the Company by
suit or otherwise and further, to terminate this Agreement. The Company
covenants and agrees to pay all reasonable attorney fees, paralegal fees, costs
and expenses of CCEC, including court costs, (including such attorney fees,
paralegal fees, costs and expenses incurred on appeal) if CCEC employs an
attorney to collect the aforesaid amounts or to enforce other rights of CCEC
provided for in this Agreement in the event of any default as set forth above
and CCEC prevails in such litigation. If the Company prevails, then CCEC shall
pay for the Company's legal fees and expenses as set forth above. Further, until
CCEC has received the first cash payment as described above in Section 4.1, CCEC
shall not be required to commence performing hereunder.
9. COMPANY(1)S REPRESENTATIONS AND WARRANTIES. Company represents and warrants
to CCEC for the purpose of inducing CCEC to enter into and consummate this
Agreement as follows:
9.1 Company has the power and authority to execute, deliver and perform this
Agreement.
9.2 The execution and delivery by the Company of this Agreement have been duly
and validly authorized by all requisite action by the Company. No license,
consent or approval of any person is required for the Company(1)s execution and
delivery of this Agreement. 9.3 This Agreement has been duly executed and
delivered by the Company. This Agreement is the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
respective terms, subject to the effect to any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors(1)
rights generally and to general principles of equity. 9.4 The execution and
delivery by the Company of this Agreement do not conflict with, constitute a
breach of or a default under: (i) any applicable law, or any applicable rule,
judgment, order, writ, injunction, or decree of any court; (ii) any applicable
rule or regulation of any administrative agency or other governmental authority;
(iii) the certificate of incorporation and By-Laws of the Company; (iv) any
agreement, indenture, instrument or contract to which the Company is now a party
or by which it is bound. 9.5 No representation or warranty by the Company in
this Agreement and no information in any statement, certificate, exhibit,
schedule or other document furnished, or to be furnished by the Company to CCEC
pursuant hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading. There is no fact which the Company has not
disclosed to CCEC, in writing, or in SEC filings or press releases, which
materially adversely affects, nor, so far as the Company can now reasonably
foresee, may adversely affect the business, operations, prospects, properties,
assets, profits or condition (financial or otherwise) of the Company.
10. MISCELLANEOUS
10.1 Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing, and shall be deemed to have been duly given
when delivered personally or sent by registered or certified mail, return
receipt requested, postage prepaid to the parties hereto at their addresses
indicated hereinafter. Either party may change his or its address for the
purpose of this paragraph by written notice similarly given. Parties(1)
addresses are as follows:
COMPANY: Renssalaer Technology Park
000 Xxxxxx Xxxx
Xxxx, Xxx Xxxx 00000
CCEC: Suite 200
000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
10.2 Entire Agreement. This Agreement represents the entire agreement between
the Parties in relation to its subject matter and supersedes and voids all prior
agreements between such Parties relating to such subject matter. 10.3 Amendment
of Agreement. This Agreement may be altered or amended, in whole or in part,
only in a writing signed by both Parties. 10.4 Waiver. No waiver of any breach
or condition of this Agreement shall be deemed to be a waiver of any other
subsequent breach or condition, whether of a like or different nature, unless
such shall be signed by the person making such waiver and/or which so provides
by its terms. 10.5 Captions. The captions appearing in this Agreement are
inserted as a matter of convenience and for reference and in no way affect this
Agreement, define, limit or describe its scope or any of its provisions. 10.6
Situs. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. 10.7 Benefits. This Agreement shall inure to the
benefit of and be binding upon the Parties hereto, their heirs, personal
representatives, successors and assigns. 10.8 Severability . If any provision of
this Agreement shall be held to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and shall not in any way
affect or render invalid or unenforceable any other provision of this Agreement,
and this Agreement shall be carried out as if such invalid or unenforceable
provision were not contained herein. 10.9 Arbitration. Any controversy, dispute
or claim arising out of or relating to this Agreement or the breach thereof
shall be settled by arbitration. Arbitration proceedings shall be conducted in
accordance with the rules then prevailing of the American Arbitration
Association or any successor. The award of the Arbitration shall be binding on
the Parties. Judgment may be entered upon an arbitration award of in a court of
competent jurisdiction and confirmed by such court. Venue for Arbitration
proceedings shall be Seminole County, Florida. The costs of arbitration,
reasonable attorneys(1) fees of the Parties, together with all other expenses,
shall be paid as provided in the Arbitration award. 10.10 Currency. In all
instances, references to monies used in this Agreement shall be deemed to be
United States dollars. 10.11 Multiple Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, and all of such counterparts shall constitute one (1) instrument.
11. Cancellation: After 80 days of contractual performance, the Company has the
right to issue written notification of any perceived problems or legitimate
concerns regarding CCEC(1)s performance. Upon receipt of written notifications,
CCEC will have 10 days to correct or formally address the Company(1)s written
concerns. If an amicable solution cannot be achieved the contract becomes
cancelable by either party following the expiration of the 10 day cure period.
During the written notification and correction review period CCEC shall continue
to receive full compensation, and such cancellation shall not relieve the
Company of any fees or compensation earned by or owed to CCEC, including
irrevocable rights to the options referenced in section 4.2.
12. This Agreement may be executed in counterparts and by fax transmission, each
counterpart being deemed an original.
13. Notwithstanding the representations and warranties defined within Section 9
herein, the granting of options, as defined in Section 4.4, is subject to
approval of the Company's Board of Directors, which is expected to occur on or
before May 15, 1999.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
first above written.
CONFIRMED AND AGREED ON THIS ________DAY OF ________, 1999.
CONTINENTAL CAPITAL & EQUITY CORPORATION
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Corporate Officer Witness
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Company Representative Witness
CONFIRMED AND AGREED ON THIS ________DAY OF ________, 1999.
IFS INTERNATIONAL, INC.
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Corporate Officer Witness
