MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this 26th day of January
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 WALL STREET STRATEGIES CORPORATION, located at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxx, 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. 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 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 corporate 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.
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. Thirty thousand (30,000) restricted shares of the Company's common
stock due upon execution of this Agreement.
4.2. Further, CCEC has the option to purchase one hundred thousand
(100,000) shares of the Company's common stock as follows: twenty five thousand
(25,000) shares at a per share price of ten dollars ($10.00); twenty five
thousand (25,000) shares at a per share price of twelve dollars ($12.00); twenty
five thousand (25,000) shares at a per share price of fourteen dollars ($14.00);
and twenty five thousand (25,000) shares at a per share price of sixteen dollars
($16.00). 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 that CCEC shall have piggy-back registration rights with
respect to the Common Shares referenced above so as to permit the public resale
thereof by CCEC. The Company shall include such shares on the first registration
statement filed by the Company with the SEC after the date hereof on a form that
would permit such inclusion. The Company shall use its best efforts to make the
Registration effective on a timely basis.
4.3. The referenced options shall vest according to the following
schedule:
$10.00 options 1/20/2000
$12.00 options 4/20/2000
$14.00 options 7/20/2000
$16.00 options 10/20/2000
Unvested options may be cancelled only upon written notice by the company of
termination of this Agreement on account of cause. An accelerated vesting period
may be awarded to CCEC upon request and satisfaction of performance under this
contract.
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.
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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, 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 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. On a timely basis 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. On a timely basis upon billing 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 adequate 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, neither party hereto nor any
of its respective officers, directors, employees, agents and affiliates, shall
disclose the contents and
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provisions of this Agreement or any nonpublic information provided hereunder
without obtaining the prior written consent of the other party hereto, subject
to disclosing same further to respective counsel, accountants and other persons
performing investment banking, financial or related functions who have a need to
know such information.
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, 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 to 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 and/or 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. 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' 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.
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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. 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
purposes 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.
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.
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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 26 DAY OF January, 2000.
CONTINENTAL CAPITAL & EQUITY CORPORATION
/s/ Illegible /s/ Xxxx Xxxxxxx
------------------------------------ ----------------------------------
Corporate Officer Witness
/s/ Illegible /s/ Xxxx Xxxxxxx
------------------------------------ ----------------------------------
Company Representative Witness
CONFIRMED AND AGREED ON THIS 26 DAY OF January, 2000.
WALL STREET STRATEGIES CORPORATION
/s/ Xxxxxxx Xxxxx /s/ Illegible
------------------------------------ ----------------------------------
Corporate Officer Witness
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