EXHIBIT 10.27
[CONTINENTAL CAPITAL & EQUITY CORPORATION LETTERHEAD]
MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT is made and entered into this 2nd day of October 2000, by and
between CONTINENTAL CAPITAL & EQUITY CORPORATION, located at 000 Xxxxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, (hereinafter referred to as "CCEC") and
FIBERCHEM, INC. DBA DECISIONLINK, INC. located at 0000 Xxxxx Xx - Xxxx X
XxxXxxxx, XX 00000 (hereinafter referred to as the "Company").
WITNESSETH:
For and consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. ENGAGEMENT. 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 for twelve (12) months.
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 marketplace, 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), brokers, financial analysts, fund managers and other interested
participants.
3.6 Feature the Company's profile or fact sheet on CCEC'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 Create, build and continually enhance a fax database of all brokers,
investors, analysts and media contacts who have expressed an interest in
receiving on-going information on the Company. Assist the Company in setting up
an account with a fax broadcasting agency to manage the actual broadcasting in
the event Company does not have this capability in-house. Further, CCEC will, at
its election, mass-fax broadcast select releases to its extensive network of
U.S. stockbrokers, analysts and institutional investors.
3.9 E-mail press releases, corporate announcements, broker updates,
Company news developments to CCEC's e-mail database of brokers, institutional
fund managers, financial analysts, and industry professionals.
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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 At the Company's request, strive to obtain the Company analyst
coverage and/or investment banking sponsorship.
3.12 Introduce Company to various fund managers and institutional
investors.
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'S COMPENSATION. Upon the execution of this Agreement, Company hereby
covenants and agrees to pay CCEC as follows:
4.1 Four Hundred Thousand (400,000) restricted shares of the Company's
common stock due upon execution of the agreement. Said shares shall be
registered for free trade status by the Company upon execution of this Agreement
and Company agrees that registration of these shares will be effective within
ninety days from the execution date of this Agreement. Otherwise, Company agrees
to pay CCEC a cash penalty of $10,000 per month or partial month that such
registration is not effective, unless failure is beyond the reasonable control
of the Company.
4.2 An option to purchase Two Hundred Thousand (200,000) shares of the
Company's common stock as follows:
One Hundred Thousand (100,000) shares at a per share price of ($0.50)
and One Hundred Thousand (100,000) SHARES AT A PER SHARE PRICE OF
($0.75)
The options shall expire 24 months from the day the Registration Statement
registering the underlying shares of the option is deemed effective. The Company
agrees to issue piggy-back registration rights to the Common Shares referenced
above for resale by CCEC pursuant to its filing of an SEC Registration Statement
on Form S-3, or such other applicable form as may be appropriate. The Company
agrees to initiate a Registration Statement at Company's cost to register the
shares underlying the options, if such shares are "in the money," within thirty
(30) days of CCEC's written request to do so. The Company shall use its best
efforts to make the Registration effective on a timely basis.
4.3 CCEC recognizes that the acquisition of the Company shares involve a
high degree of risk in that (i) an investment in the Company is highly
speculative and only investors who can afford the loss of their entire
investment should consider investing in the Company; (ii) they may not be able
to liquidate their investment; (iii) transferability of the shares is extremely
limited; and (iv) CCEC could suffer the loss of their entire investment. CCEC is
acquiring the Company securities for its own account, for investment, and not
for re-sale unless the re-sale is covered by an effective registration statement
or an available exemption from registration provision of the Securities Act of
1933, as amended.
5. CCEC'S EXPENSES AND COSTS. Company shall pay all reasonable 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'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's incurrence of the same:
5.1 Travel 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.
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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, with a minimum of 25,000
pieces.
5.10 Cost of mass-fax broadcasts as referred to in Section 3.8.
5.11 Company shall pay to CCEC reasonable costs and expenses incurred
within ten (10) days of receipt of CCEC'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'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'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's shareholders known to the Company; and a list of
the brokers and market makers in the Company's securities and a list of analysts
or fund managers 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's
financial condition or in the nature of its business or operations which had or
might have an adverse material effect on its operations, assets, properties or
prospects of its business.
6.5 Immediately pay 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'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'S DEFAULT. In the event of any default in the payment of CCEC's
compensation to be paid to it pursuant to this Agreement, or any other charges
or expenses on the Company'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's 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's property, then upon the
happening of any of such events,
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CCEC shall have the right, at its option, forthwith or thereafter to accelerate
all compensation, 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. 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'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's execution and
delivery of this Agreement.
9.3 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. LIMITATION OF CCEC LIABILITY: If CCEC fails to perform its services
hereunder, its entire liability to the Company shall not exceed the lessor of
(a) the amount of cash compensation CCEC has received from the Company under
Section 4 of this Agreement or (b) the actual damage to the Company as a result
of such non-performance. IN NO EVENT WILL CCEC BE LIABLE FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM AGAINST THE COMPANY BY ANY
PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, UNLESS
SUCH DAMAGES RESULT FROM THE USE, BY CCEC, OF INFORMATION NOT AUTHORIZED BY THE
COMPANY.
11. MISCELLANEOUS
11.1 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.
11.2 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.
11.3 Amendment of Agreement. This Agreement may be altered or amended, in
whole or in part, only in a writing signed by both Parties.
11.4 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.
11.5 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.
11.6 Situs. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida. Venue shall be located in Seminole
County, Florida.
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11.7 Benefits. This Agreement shall inure to the benefit of and be binding
upon the Parties hereto, their heirs, personal representatives, successors and
assigns.
11.8 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.
11.9 Arbitration. Except as to a monetary default by Company hereunder, 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' fees of the Parties, together with all other
expenses, shall be paid as provided in the Arbitration award.
11.10 Currency. In all instances, references to monies used in this
Agreement shall be deemed to be United States dollars.
11.11 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.
12. This Agreement may be executed in counterparts and by fax transmission,
each counterpart being deemed an original.
IN WITNESS WHEREOF, the Parties have
executed this Agreement on the day and year first above written.
CONFIRMED AND AGREED ON THIS 9TH DAY OF OCTOBER 2000.
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CONTINENTAL CAPITAL & EQUITY CORPORATION
By: /s/ XXXXX X.X. XXXXXX
-------------------------------
CCEC Representative
Xxxxx X.X. Xxxxxx
-------------------------------
Print Name
CONFIRMED AND AGREED ON THIS 19TH DAY OF OCTOBER 2000.
---- -------
FIBERCHEM, INC. dba DecisonLink, Inc.
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------
Duly Authorized
Xxxxxxxx X. Xxxxxx
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Print Name
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