EXHIBIT 4.6
NON-EXCLUSIVE FINANCIAL ADVISORY AGREEMENT
This Agreement is made and entered into as of the 15th day of November, 2000,
("Effective Date") between CCM MANUFACTURING TECHNOLOGIES, INC., a Delaware
corporation (the "Company") and SUNSTATE EQUITY TRADING, INC., with its
principal executive office located at 0000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000 (the "Financial Advisor").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Financial Advisor is an investment banker and registered NASD
broker- dealer and has experience in providing financial and business advice to
public and private companies; and
WHEREAS, the Company is seeking and the Financial Advisor is willing to furnish,
on a non-exclusive basis, business and financial related advice and services to
the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of, and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Purpose. - The Company hereby engages the Financial Advisor for the term
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specified in this Agreement to render financial advisory consulting advice on a
non-exclusive basis to the Company as an investment banker relating to
financial, market acceptance and similar matters upon the terms and conditions
set forth herein.
2. Representations of the Financial Advisor and the Company. The Financial
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Advisor represents and warrants to the Company that (i) it is a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD") and
that it is engaged in the securities brokerage business; (ii) in addition to its
securities brokerage business, the Financial Advisor provides consulting
advisory services; and (iii) it is free to enter into this Agreement and the
services to be provided pursuant to this Agreement are not in conflict with any
other contractual or other obligation to which the Financial Advisor is bound.
The Company acknowledges that the Financial Advisor is in the business of
providing financial and public market services and consulting advice (of the
type contemplated by this Agreement) to others and that nothing herein contained
shall be construed to limit or restrict the Financial Advisor in conducting such
business with respect to others, or rendering such advice to others, nor shall
Company be restricted from seeking such, or related services, from other
sources, including other investment banking firms.
3. Duties of the Financial Advisor. During the term of this Agreement, the
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Financial Advisor will provide the Company with consulting advice as specified
below, provided that the Financial Advisor shall not be required to undertake
duties not reasonable within the scope of the
consulting advisory service in which the Financial Advisor is engaged generally.
In performance of these duties, the Financial Advisor shall provide the Company
with the benefits of its best judgment and efforts. It is understood and
acknowledged by the parties that the value of the Financial Advisor's advice is
not measurable in any quantitative manner, and that the amount of time spent
rendering such consulting advice shall be determined according to the Financial
Advisor's discretion.
The Financial Advisor's duties may include, but will not necessarily be
limited to:
1. Advice relating to corporate financing activities and related market
acceptance of Company's business and securities, including monitoring the
progress and status of the Company's marketing efforts through Financial
Advisor's relationships with industry investment bankers;
2. Recommendations relating to specific business operations and
investments;
3. Advice relating to financial planning;
4. Advice regarding future finances involving securities of the Company or
any subsidiary; and
5. Advice relating to the content and timing of press releases to the
public.
4. Term. The term of this Agreement shall commence on the Effective Date, and
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terminate one year from the Effective Date; provided, however, that this
Agreement may be renewed, modified, canceled or extended upon such terms and
conditions as may be mutually agreed upon by the parties hereto.
5. Compensation.The Company shall compensate the Financial Advisor, its
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designee or assign in the manner set forth on Schedule A. To the extent that
such compensation may include Restricted Stock (as defined on Schedule A),
Financial Advisor, its designee(s) or assign(s) represents and warrants that
Financial Advisor, its designee(s) or assign(s) (i) is acquiring the Restricted
Stock solely for its own beneficial account and not with a view to, or resale in
connection with any distribution, and (ii) understands that the Restricted Stock
has not been registered under the Securities Act of 1933, as amended, or any
state securities laws by reason of specific exemptions under the provisions
thereof.
6. Expenses. In addition to the compensation payable hereunder, the Company
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shall reimburse the Financial Advisor, within five (5) business days of its
request, for any and all out-of-pocket expenses incurred in connection with the
services performed by the Financial Advisor and its counsel pursuant to this
Agreement, including hotel, food and associated expenses, all charges for
travel, long-distance telephone calls and other expenses spent or incurred on
the Company's behalf, provided any expenses must be pre-approved by Company
prior to being incurred.
7. Use of Advice by the Company; Public Market for the Company's Securities.
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The Company acknowledges that all opinions and advice (written or oral) given by
the Financial Advisor to the Company in connection with the engagement of the
Financial Advisor are intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company agrees that no
person or entity other than the Company shall be entitled to make use of or rely
upon the advice of the Financial Advisor to be given hereunder, and no such
opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any
purpose, nor may the Company make any public references to the Financial
Advisor, or use of the Financial Advisor's name in any annual reports or any
other reports or releases of the Company other than as required by rule or law
without the prior written consent of the Financial Advisor.
The Company acknowledges that the Financial Advisor makes no commitment
whatsoever as to guaranteeing the making of a public trading market in the
Company's securities or to recommending or advising its clients to purchase the
Company's securities; however, nothing contained herein shall preclude such
actions at Financial Advisor's sole discretion and responsibility. Research
reports, corporate finance or like reports that may be prepared by the Financial
Advisor or its contractors or suppliers will, when and if prepared, be initiated
on the merits or judgment of analysis of the Financial Advisor or prepared by a
contractor or supplier, solely on the discretion and judgment of that individual
contractor or supplier.
8. Company Information; Confidentially. The Company recognizes and confirms
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that, in advising the Company and in fulfilling its engagement hereunder, the
Financial Advisor will use and rely on data, material and other information
furnished to the Financial Advisor by the Company. The Company acknowledges and
agrees that in performing its services under this engagement, the Financial
Advisor may rely upon the data, material and other information supplied by the
Company without independently verifying the accuracy, completeness or veracity
of same. In addition, in the performance of its services, the Financial Advisor
may look to such others for such factual information, economic advice and/or
research upon which to base its advice to the Company hereunder as the Financial
Advisor shall in good xxxxx xxxx appropriate. Except as contemplated by the
terms hereof or as required by applicable law, the Financial Advisor shall keep
confidential all non-public information provided to it by the Company, and shall
not disclose such information to any third party without the Company's prior
written consent, other than such of its employees and advisors as the Financial
Advisor determines to have a need to know. Company confirms that all public
information given to Financial Advisor or its contractors or suppliers shall be
accurate and comply with SEC Regulation F.D.
9. Indemnification and Contribution
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1. The Company shall indemnify and hold harmless the Financial Advisor against
any and all liabilities, claims, lawsuits, including any and all awards and/or
judgments to which it may become subject under the Securities Act of 1933, (the
"Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act") or any
other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including costs, expenses, awards and/or
judgments) arise out of or are in connection with the services rendered by the
Financial
Advisor or any transactions in connection with the services rendered by the
Financial Advisor, except for any liabilities, claims and lawsuits (including
awards and/or judgments), arising out of willful acts or willful omissions or
negligence of the Financial Advisor. In addition, the Company shall also
indemnify and hold harmless the Financial Advisor against any and all costs and
expenses, including reasonable counsel fees, incurred relating to the foregoing.
The Financial Advisor shall give the Company prompt notice of any such
liability, claim or lawsuit which the Financial Advisor contends is the subject
matter of the Company's indemnification and the Company thereupon shall be
granted the right to take any and all necessary and proper action, at its sole
cost and expense, with respect to such liability, claim and lawsuit, including
the right to settle, compromise and dispose of such liability, claim or lawsuit,
excepting therefrom any and all proceedings or hearings before any regulatory
bodies and/or authorities.
The Financial Advisor shall indemnify and hold the Company harmless against
any and all liabilities, claims and lawsuits, including any and all awards
and/or judgments to which it may become subject under the Act, the 1934 Act or
any other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including costs, expenses, awards and/or
judgments) arise out of or are based upon any omission or untrue statement or
alleged untrue statement of a material fact required to be stated or necessary
to make the statement therein, not misleading, which statement or omission was
made in reliance upon information furnished in writing to the Company by or on
behalf of the Financial Advisor for inclusion in any registration statement or
prospectus or any amendment or supplement thereto. In addition, the Financial
Advisor shall also indemnify and hold the Company harmless against any and all
costs and expenses, including reasonable counsel fees, incurred relating to
willful acts, negligence or willful material omissions of Financial Advisor or
relating to the foregoing.
The Company shall give the Financial Advisor prompt notice of any such
liability, claim or lawsuit which the Company contends is the subject matter of
the Financial Advisor's indemnification and the Financial Advisor thereupon
shall be granted the right to take any and all necessary and proper action, at
its sole cost and expense, with respect to such liability, claim and lawsuit,
including the right to settle, compromise or dispose of such liability, claim or
lawsuit, excepting therefrom any and all proceedings or hearings before any
regulatory bodies and/or authorities.
2. In order to provide for just and equitable contribution in any case in
which (i) any person entitled to indemnification under this paragraph makes
claim for indemnification pursuant hereto but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this paragraph provides for indemnification in such case, or (ii)
contribution may be required on the part of any such person in circumstances for
which indemnification is provided under this paragraph, then, and in each such
case, the Company and the Financial Advisor shall contribute to the aggregate
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losses, claims, damages or liabilities to which they may be subject (after any
contribution from others) in such proportion taking into consideration the
relative benefits received by each party from the offering covered by the
prospectus or from any other document or agreement with respect to any
transactions in connection with this Agreement (taking into account the portion
of the proceeds of the transaction realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was assessed, the opportunity to correct and prevent any statement or
omission and other equitable considerations appropriate under the circumstances;
provided, that, in any such case, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
Within fifteen (15) days after receipt by any party to this Agreement (or
its representative) of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in respect thereof is
to be made against another party (the "Contributing Party"), notify the
Contributing Party of the commencement thereof, but the omission so to notify
the Contributing Party will not relieve it from any liability which it may have
to any other party other than for contribution hereunder. In case any action,
suit or proceeding is brought against any party, and such party notifies a
Contributing Party or his or its representative of the commencement thereof
within the aforesaid fifteen (15) days, the Contributing Party will be entitled
to participate therein with the notifying party and any other Contributing Party
similarly notified. Any such Contributing Party shall not be liable to any
party seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution without the written
consent of the Contributing Party. The indemnification provisions contained in
this paragraph are in addition to any other rights or remedies which either
party hereto may have with respect to the other or hereunder.
10. The Financial Advisor as an Independent Contractor. The Financial Advisor
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shall perform its services hereunder as an independent contractor and not as an
agent or employee of the Company or an affiliate thereof. It is expressly
understood and agreed to by the parties hereto that the Financial Advisor shall
have no authority to act for, represent or bind the Company or any affiliate
thereof in any manner, except as may be agreed to expressly by the Company in
writing from time to time. From time to time Financial Advisor may contract
with other entities to perform some of the duties of Financial Advisor described
in Section 3 herein or such other functions as Financial Advisor in its sole
discretion deems appropriate or necessary, and may compensate such contractors
with a portion of the compensation described on Schedule A.
11. Miscellaneous.
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1. This Agreement between the Company and the Financial Advisor
constitutes the entire agreement and understanding of the parties hereto,
and supersedes any and all previous agreements and understandings, whether
oral or written, between the parties with respect to the matters set forth
herein.
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2. Any notice or communication permitted or required hereunder shall be in
writing and shall be deemed sufficiently given if hand-delivered or sent
postage prepaid by certified or registered mail, return receipt requested,
to the respective parties as set forth below, or to such other address as
either party may notify the other in writing:
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If to the Company: CCM Manufacturing Technologies, Inc.
Attention: Xxxxx Xxxxx
15635 Vision Drive
Pflugerville,Texas
Telephone: 000-000-0000
If the Financial Advisor: Sunstate Equity trading, Inc.
0000 Xxxxx XxxXxxxx Xxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
3. This Agreement shall be binding upon and inure to the benefit of each of
the parties hereto and their respective successors, legal representatives
and assigns.
4. This Agreement may be executed in any number of counterparts, each of which
together shall constitute one and the same original document.
5. No provision of this Agreement may be amended, modified or waived, except
in a writing signed by all of the parties hereto.
6. This Agreement shall be construed in accordance with and governed by the
laws of the State of Texas, without giving effect to conflict of law
principles. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in Texas, and they hereby submit to the
exclusive jurisdiction of the federal and state courts of the State of
Texas with respect to any action or legal proceeding commenced by and
party, and irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such a
court or respecting the fact that such court is an inconvenient forum,
relating to or arising out of this Agreement, and consent to the service of
process in any such action or legal proceeding by means of registered or
certified mail, return receipt requested, in care of the address set forth
in paragraph 11(b) hereof.
7. This Agreement has been duly authorized, executed and delivered by and on
behalf of the Company and the Financial Advisor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
CCM MANUFACTURING TECHNOLOGIES, INC.
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By: /S/ Xxxxx Xxxxx
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Xxxxx Xxxxx, President
SUNSTATE EQUITY TRADING, INC.
Name: /S/ Xxx Xxxxx
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SCHEDULE "A"
Company shall compensate Financial Advisor for the duties performed by Financial
Advisor under this Agreement, as follows:
As consideration for the Financial Advisor entering into this Agreement, the
Company shall issue to Financial Advisor and/or its designee, upon execution of
this Agreement, certificates for TWO HUNDRED THOUSAND (200,000) fully-paid and
non-assessable shares of CCM MANUFACTURING TECHNOLOGIES, INC.'s Common Stock
which shall be restricted as to transferability under the federal securities
laws ("Restricted Stock").
The Restricted Stock certificate(s) shall bear the following legend: THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 [OR UNDER ANY APPLICABLE STATE LAW]. THEY MAY NOT BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED [OR UNDER ANY APPLICABLE STATE LAW], OR
FOR WHICH AN EXEMPTION IS AVAILABLE FROM SUCH REGISTRATION AND FOR WHICH THE
COMPANY IS PROVIDED WITH AN OPINION OF COUNSEL TO THE HOLDER, REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH TRANSFER IS NOT IN
VIOLATION OF ANY OF SAID SECURITIES LAWS.
The Company shall deliver FIFTY THOUSAND (50,000) SHARES to the Financial
Advisor or its designee upon execution of this Agreement; two months from the
date hereof, the Company shall deliver an additional FIFTY THOUSAND (50,000)
fully-paid and non-assessable shares of the Company's Common Stock to the
Financial Advisor or its designee; four months from the date of this Agreement,
the Company shall deliver FIFTY THOUSAND (50,000) fully paid and non-assessable
shares to the Financial Advisor or its designee; and six months from the date
hereof, the Company shall deliver an additional FIFTY THOUSAND (50,000) fully-
paid and non-assessable shares of the Company's Common Stock to the Financial
Advisor or its designee. The Restricted Stock certificate(s) shall bear the
legend as stated above unless, prior to the date of delivery, such shares were
registered with the Securities and Exchange Commission.
Not later than one year from the date of this Agreement or its next Registration
Statement, the Company shall file a XX-0, XX-0, X-0 (or other applicable form)
registration with the Securities and Exchange Commission pursuant to which the
Company will register or qualify the TWO HUNDRED THOUSAND (200,000) shares of
Restricted Stock to the extent requisite to permit the public offering and sale
of the Restricted Stock, and Company will use its best efforts to cause such
registration statement to become effective as promptly a practicable. The
Company shall bear all expenses incurred in connection with the filing of such
registration statement. Regardless of the foregoing, all Restricted Shares
issued pursuant to this Agreement shall have
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"piggyback" registration rights in the first and any registrations filed by the
Company subsequent to the date of this Agreement, and all of the shares covered
by this Agreement shall be registered in the first of any such registrations by
Company regardless of whether held by Financial Advisor or any subsequent owner.
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