EXHIBIT 10.8
THIS AGREEMENT is made and entered into this 5th
day of December, 2000, between CONTINENTAL
CAPITAL & EQUITY CORPORATION, located at 000
Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX
00000, (hereinafter referred to as "CCEC") and
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC. located
at 000 Xxxxxxx Xxxxx, Xxxx #0, Xxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0 (hereinafter referred to as the
"Company").
WITNESSETH:
WHEREAS, CCEC is a financial relations and
direct marketing advertising firm specializing in
the dissemination of information about publicly
traded companies, and
WHEREAS, the Company is publicly held with
its common stock trading on the NASD Over the
Counter Electronic Bulletin Board, and
WHEREAS, the Company desires to publicize
itself with the intention of making its name and
business better known to shareholders, investors,
brokerage houses, institutional investors,
analysts and other industry professionals, and
WHEREAS, CCEC is willing to accept the
Company as a client.
NOW THEREFORE, in consideration of the mutual
covenants herein contained, it is agreed:
1. ENGAGEMENT: The Company hereby engages CCEC to
publicize the Company to brokers, prospective
investors, institutional investors, analysts,
other industry professionals and shareholders
described in Section 2 of this Agreement, and
subject to the further provisions of this
Agreement. CCEC hereby accepts the Company as a
client and agrees to publicize it as described in
Section 2 of this Agreement, but subject to the
further provisions of this Agreement.
2. MARKETING PROGRAM: Consists of the following
components:
(A) CCEC will review and analyze various
aspects of the Company's goals and make
recommendations on feasibility and achievement of
desired goals.
(B) CCEC will review the general information
and recent filings from the Company and produce
up to a 100,000 piece direct mail package to
include an 11" X 17" self mailer and an ample
number of corporate profiles so as to allow for
one profile for each respondent to the original
mailing, both items to be approved by the Company
prior to circulation.
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(C) CCEC will provide exposure to its
network of firms and brokers that may be
interested in participating with the Company and
schedule and conduct the necessary due diligence
and obtain the required approvals
necessary for those firms to participate. CCEC will also interview and make
determinations on any firms or brokers referred by the Company with regard to
their participation.
(D) At the Company's request, CCEC will be available to the Company to
field any calls from firms and brokers inquiring about the Company.
(E) CCEC will use its best efforts to obtain the Company exposure on
radio programming, in independent financial newsletters, and through on-line fax
and Internet broadcast services.
(F) CCEC will promote the Company on the Worldwide Internet via CCEC's
home web site (XXX.XXXXXXXXXXXXXXXX.XXX). Specifically, CCEC will feature the
Company's INSIDE WALL STREET feature story and a FAST FACT SHEET prepared and
maintained by CCEC on its web site. The FAST FACT SHEET will feature dynamic
stock trading information, press releases, and other relevant data regarding
developments at the Company's. In addition, CCEC will mass-e-mail the Company's
INSIDE WALL STREET direct mail feature directly to its proprietary database of
online investors of approximately 50,000. Further, based on strategic timing of
events, CCEC will conduct an ongoing email initiative targeting unique,
qualified online investors, stockbrokers and other investing professionals -
this initiative will provide for multiple mass emailing campaigns to a total of
1,000,000 individuals and will be scheduled strategically within the contract
term to complement campaign efforts, placement on six financial Web sites, fax
blast to 1,000 brokers, and three mentions in an email newsletter with 35,000
opt-in subscribers.
(G) At the Company's request, CCEC shall write, produce and assist the
Company in releasing all press announcements. The Company shall be solely
responsible for paying all fees associated with the actual release(s) through
BusinessWire, P.R. Newswire, or any other comparable news dissemination source.
(H) CCEC will 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. CCEC will 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 discretion, mass-fax broadcast select releases to its
network of U.S. stockbrokers, analysts and institutional investors.
(I) CCEC will obtain express written approval from the Company on all
material produced by CCEC prior to disseminating the information to the public.
3. TIME OF PERFORMANCE: Services to be performed under this Agreement shall
commence upon execution of this Agreement and shall continue through September
30, 2001.
4. COMPENSATION AND EXPENSES: In consideration of the services to be performed
by CCEC, the Agent agrees to pay compensation to CCEC as follows: (A) $200,000
cash, payable upon execution of this Agreement; plus 165,000 common shares
restricted pursuant to Rule 144; said shares shall be granted piggyback
registration rights on the first Registration Statement filed by the Company
with the US Securities and Exchange Commission following the date of this
Agreement.
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(B) Further, CCEC has the warrant to purchase three hundred thousand
(300,000) shares of the Company's common stock as follows: fifty thousand
(50,000) shares at one dollar and fifty cents ($1.50); fifty thousand (50,000)
shares at two dollars ($2.00); fifty thousand (50,000) shares at two dollars and
fifty cents ($2.50); fifty thousand (50,000) shares at three dollars ($3.00);
and one hundred thousand (100,000) shares at five dollars ($5.00). 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 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.
5. REPRESENTATIONS AND WARRANTIES: The Company represents and warrants to CCEC,
each such representation and warranty being deemed to be material that:
(A) The Company will cooperate fully and timely with CCEC to enable
CCEC to perform its obligations under this Agreement.
(B) The execution and performance of this Agreement by the Company has
been duly authorized by the Board of Directors of the Company in accordance with
applicable law, and, to the extent required, by the requisite number of
shareholders of the Company;
(C) The performance by the Company of this Agreement will not violate
any applicable court decree, law or regulation, nor will it violate any
provisions of the organizational documents of the Company or any contractual
obligation by which the Company may be bound.
(D) The Company will promptly deliver to CCEC a complete due diligence
package to include latest 10K, latest 10Q, last six (6) months of press releases
and all other relevant materials, including but not limited to corporate
reports, brochures, etc.
(E) The Company will promptly deliver to CCEC a list of names and
addresses of all shareholders of the Company of which it is aware.
(F) The Company will promptly deliver to CCEC a list of brokers and
market makers of the Company's securities that have been following the Company.
(G) Because CCEC will rely on such information to be supplied it by the
Company, all such information shall be true, accurate, complete and not
misleading, in all respects.
(H) The Company will act diligently and promptly in reviewing materials
submitted to it by CCEC to enhance timely distribution of the materials and will
inform CCEC of any inaccuracies contained therein prior to the projected
publication date.
(I) Notwithstanding the information made known to the Company regarding
CCEC's selling shareholder and founder Xxxx X. Xxxxxx, since January 1, 1997,
and as of the date hereof, there is no suit, claim, action, proceeding,
administrative hearing or investigation pending or, to the knowledge of CCEC,
threatened against CCEC or any of its officers, directors or affiliates before
any court, agency or other governmental entity regarding any actual or alleged
violation of the securities laws or regulations of the United States or any
State thereof (a "Securities Action"). Notwithstanding the information made
known to the Company regarding CCEC's selling shareholder and founder Xxxx X.
Xxxxxx, since January 1, 1997 and as of the date hereof, neither CCEC nor any of
its officers, directors or affiliates have been subject to any outstanding
order, writ, judgement, injunction, decree or arbitration order or award as a
result of any Securities Action.
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6. DISCLAIMER BY CCEC: CCEC WILL BE THE PREPARER OF CERTAIN PROMOTIONAL
MATERIALS. CCEC MAKES NO REPRESENTATION THAT (A) ITS SERVICE WILL RESULT IN ANY
ENHANCEMENT TO THE COMPANY (B) THE PRICE OF THE COMPANY'S PUBLICLY TRADED
SECURITIES WILL INCREASE, (C) ANY PERSON WILL PURCHASE SECURITIES IN THE
COMPANY, OR (D) ANY INVESTOR WILL LEND MONEY TO OR INVEST IN OR WITH THE
COMPANY.
7. EARLY TERMINATION: In the event that either CCEC or the Company is subjected
to any formal regulatory investigation involving alleged securities violations
not expressly made known to the other party as of the date hereof, then the
party not privy to said disclosure shall retain the right, at its sole
discretion, to so terminate this Agreement on demand. Said request for
termination must be submitted in writing by the terminating party to the party
in violation and delivered by way of U.S. certified mail. In the event that CCEC
is the party in violation of this provision, then CCEC agrees to waive all
rights to the warrant and/or option to purchase common shares of the Company, as
defined in Section 4 herein. In the event that the Company is the party in
violation of this provision, then CCEC shall retain all rights to all
compensation, defined in Section 4, including the warrant and/or option to
purchase shares of the Company's common stock.
8. 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.
9. OWNERSHIP OF MATERIALS: All right, title and interest in and to materials to
be produced by CCEC in connection with the contract and other services to be
rendered under this Agreement shall be and remain the sole and exclusive
property of CCEC, except that if the Company performs fully and timely its
obligations hereunder, it shall be entitled to receive upon written request, one
hundred (100) copies of all such materials.
10. CONFIDENTIALITY: Until such time as the same may become publicly known, CCEC
agrees that any information of a confidential nature will not be revealed or
disclosed to any person or entity, except in the performance of this Agreement,
and upon completion of its services and upon written request of the Company all
materials and original documentation provided by the Company will be returned to
it. CCEC will, however, require Confidentiality Agreements from its own
employees and from contractors CCEC reasonably believes will come in contact
with confidential material.
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11. NOTICES: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth and shall be given by personal delivery,
by certified mail, express mail or by national overnight courier services.
Notices will be deemed given upon the earlier of actual receipt or three (3)
business days after being mailed or delivered to such courier service. Any
notices to be given hereunder will be effective if executed by and sent by the
attorneys for the parties giving such notice, and in connection therewith the
parties and their respective counsel agree that in giving such notice such
counsel may communicate directly in writing with such parties to the extent
necessary to give such notice.
12. SEPARABILITY: If one or more of the provisions of this Agreement shall be
held invalid, illegal, or unenforceable in any respect, such provision, to the
extent invalid, illegal, or unenforceable, and provided that such provision is
not essential to the transaction provided for by this Agreement, shall not
affect any other provision hereof, and the Agreement shall be construed as if
such provision had never been contained herein.
13. ARBITRATION: Any controversy or claim arising out of or relating to the
Client Service Agreement, or the breach thereof, shall be settled by arbitration
in accordance with the commercial arbitration rules of the American Arbitration
Association, and judgement upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
14. MISCELLANEOUS:
(A) GOVERNING LAW: This Agreement shall be governed by and interpreted
under the laws of the State of Florida where CCEC has been organized and this
Agreement has been accepted by CCEC. Venue for all litigation shall be Seminole
County, Florida.
(B) CURRENCY: In all instances, references to dollars shall be deemed
to be United States Dollars.
(B) MULTIPLE/FAXED COUNTERPARTS: This Agreement may be executed in
multiple counterparts, and by fax transmission, each of which shall be deemed an
original.
Executed as a sealed instrument as of the last day and year shown hereunder.
CONFIRMED AND AGREED ON THE _____ DAY OF ___________________ 2000
CONTINENTAL CAPITAL & EQUITY CORPORATION
By: ___________________________ ___________________________
CCEC Representative CCEC Officer
--------------------------- ---------------------------
Print Name Print Name
CONFIRMED AND AGREED ON THE _____ DAY OF ____________________ 2000
ENVIRONMENTAL SOLUTIONS WORLDWIDE, INC.
By:___________________________ ________________________
Duly Authorized Witness
--------------------------- ---------------------------
Print Name Print Witness
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