CONTINENTAL
CAPITAL
& EQUITY
CORPORATION
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this 10th day of
May, 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 FIBERCHEM, INC. located at 0000 Xxxxx Xxxxx,
Xxxxxxxx X, Xxx Xxxxx, Xxxxxx 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 for 9 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), and brokers, financial analysts, fund managers and the
like.
3.6 Feature the Company's corporate profile or fact sheet on CCEC's web
site(s).
3.7 Fax broadcast press releases, broker updates, Company newsletters
to brokers, institutional fund managers, financial analysts, and accredited
investors.
3.8 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.
3.9 The duties and obligations of CCEC as outlined above shall be
performed at CCEC's sole discretion until such time as Company has satisfied
compensation requirements as outlined in sections 4.1, 4.2 and 4.3.
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INITIAL-Company INITIAL-CCEC
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 Nine hundred ninety nine thousand (999,000) restricted shares
payable upon execution of this agreement. Said shares shall be registered for
free trade status by Company immediately upon execution of this Agreement and
Company agrees that the registration of these shares will be effective within
ninety days of the execution 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 such failure is beyond the reasonable
control of the company.
4.2 In addition, CCEC has the option to purchase six hundred thousand
(600,000) shares of the Company's common stock as follows: 200,000 shares of
the Company's common stock @ $0.18; 200,000 shares of the Company's common
stock @ $0.50; 200,000 shares of the Company's common stock @ $1.00.
The Company agrees to issue CCEC piggyback registration rights for the common
shares underlying the options or warrants listed above within a 90 day period
from the date of execution of this Agreement, otherwise the Company agrees to
pay CCEC a cash penalty of $10,000 per month or partial month that such
registration is not effective, unless such failure is beyond the reasonable
control of the company. The term of the options or warrants shall expire 36
months from the day the Registration Statement registering the underlying
shares of the option or warrant 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.
4.3 CCEC recognizes that the acquisition of Company shares involves 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.
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.
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. 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 4 above, which are
due and payable in advance of material production.
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INITIAL-Company INITIAL-CCEC
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
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, 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.
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INITIAL-Company INITIAL-CCEC
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.
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' addresses are as follows:
FIBERCHEM, INC.:
0000 Xxxxx Xxxxx
Xxxxxxxx X
Xxx Xxxxx, Xxxxxx 00000
CCEC: 000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
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 Florida. Venue shall be in the
Federal Courts of the United States located in Seminole County, Florida.
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.
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INITIAL-Company INITIAL-CCEC
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. 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.
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.
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 10TH DAY OF MAY, 1999.
CONTINENTAL CAPITAL & EQUITY CORPORATION
/s/ Xxxx Xxxxxxxx
----------------------------- -----------------------------
Corporate Officer Witness
/s/ Xxxxx X. X. Xxxxxx
----------------------------- -----------------------------
Company Representative Witness
CONFIRMED AND AGREED ON THIS 10TH DAY OF MAY, 1999.
FIBERCHEM, INC.
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------------- -----------------------------
Corporate Officer Witness
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