MARKETING ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT made and entered into this 13th day of July, 1998, by and between
CONTINENTAL CAPITAL & EQUITY CORPORATION, a Florida Corporation hereinafter is
referred to as "CCEC", and STARBASE CORPORATION, a Delaware Corporation
hereinafter referred to as "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 retains CCEC as an independent
contractor; and CCEC does hereby accept as an independent contractor to provide
the services described herein to the Company upon the terms and conditions
hereinafter set forth.
2. TERM. The term of this Agreement shall be from the 1st day of August, 1998
through the 31st day of July, 1999. The Company shall have the option to renew
this Agreement for a period of no less than 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 investments community.
3.2 Assist the Company in the implementation of its business plan
and in accurately disseminating information to the market place,
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, fact
sheets and quarterly newsletters.
3.5 Conduct a tele-marketing campaign to the investment community
and brokerage community and conduct tele-conferences with 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 Direct Mail a quarterly newsletter featuring the Company to
selected brokers, institutional fund managers, financial analysts
and accredited investors.
3.8 Assist the Company in the preparation of all press releases and
coordinate the releases via a Company paid account with PR NewsWire
or BusinessWire.
3.9 Fax broadcasts press releases, broker updates, Company
newsletters to brokers, institutional fund managers, financial
analysts, and accredited investors.
3.10 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.
3.11 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.
3.12 Strive to obtain the Company institutional analyst coverage
and investment banking sponsorship.
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3.13 Each of the foregoing activities will be coordinated through,
and approved by, a designated contact person at the Company. In
order to ensure compliance with applicable securities laws, no
activities will be engaged in by CCEC unless approved by the
Company.
3.14 CCEC will perform its services hereunder in accordance with
the highest professional standards and shall comply with all
applicable laws, rules and regulations (including, without
limitation, applicable securities laws).
ALL OF THE FOREGOING CCEC PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING. BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE. FACT
SHEETS, AND OUARTERLY 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. CCEC SHALL NOT DISSEMINATE ANY SUCH DOCUMENTATION,
WHICH HAS NOT BEEN APPROVED BY THE COMPANY.
4. CCEC'S COMPENSATION. Upon the execution of this Agreement, Company hereby
covenants and agrees to pay CCEC as follows:
4.1 Monthly cash retainer fee of $8,333.00 (Eight Thousand Three
Hundred Thirty Three United States Dollars), the first retainer fee
being due and payable upon execution of this Agreement with each
subsequent monthly retainer fee of $8,333.00 (Eight Thousand Three
Hundred Thirty Three United States Dollars) being paid on or before
the 1St of every month for the term of this Agreement.
4.2 Further, the Company, at its own election and subsequent to the
approval of its Board of Directors, may issue CCEC shares of its
Common Stock equal in value to the outstanding balance owed CCEC
pursuant to the terms and conditions herein. Each share of Common
Stock shall be valued at the average closing bid price for the 5
(five) days immediately prior to the date of Board approval. The
Company agrees to use its reasonable best efforts to register said
Common Stock for resale by CCEC pursuant to an SEC Registration
Statement on Form S-3, or as such other applicable form as may be
appropriate, within 120 days after delivery of the restricted
shares and confirmed receipt by CCEC and the Company's receipt of
an investment representation letter by CCEC. Upon delivery and
confirmed receipt of said shares, compensation of $100,000 shall be
deemed paid in full.
4.3 If the Board does not authorize the stock consideration
contemplated in Section 4.2 hereof, the Company shall pay the
entire stock consideration hereunder in cash.
4.4 In addition, the Company hereby covenants and agrees to issue
CCEC, pursuant to Board approval, an option or warrant to purchase
up to 50,000 common shares, in increments of no less than 10,000
shares, with an exercise price valued at $3.25 per share. The term
of the option or warrant shall expire 18 months from the day Board
approval is awarded. The Company agrees to use its reasonable best
efforts to register the common shares underlying the option or
warrant for resale by CCEC pursuant to an SEC Registration
Statement on Form S-3, or such other applicable form as may be
appropriate, within 180 days of Board approval.
4.5 As provided in Section 2 hereof, the Company shall have the
right to renew this Agreement for an additional 12 months. In the
event that the Company elects to exercise this option to renew,
then the Company covenants and agrees to pay CCEC cash and/or
shares which are subject to the same terms and conditions as
defined in Sections 4.1, 4.2, 4.3 and 4.4 herein with respect to
each annual one year renewal period.
5. CCEC'S EXPENSES AND COSTS. Company shall pay all reasonable out-of-pocket
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.
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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 any.
5.6 Internet advertising costs, if applicable.
5.7 Printing and publication costs of brochures and marketing
materials.
5.8 Corporate web site development costs.
5.9 Printing and publication costs of Company annual reports,
quarterly reports, and/or other shareholder communication
collateral material.
5.10 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 all costs and expenses incurred within thirty (30)
days after receipt of CCEC's written invoice for the same, except for any
invoice or portion thereof that is being contested in good faith, and
excluding any costs associated with material and services defined in Section
5.10 above, which are due and payable in advance of material production.
CCEC shall not engage any sub-contractor without the Company's prior written
authorization.
6. COMPANY'S DUTIES AND OBLIGATIONS. Company shall have the following duties and
obligations under this Agreement:
6.1 Cooperate fully with the reasonable requests of CCEC so as to
assist 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 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,
including, but not limited to, corporate reports, brochures, and
the like; a reasonably current list of the names and addresses of
all the Company's shareholders known to the Company; and a
reasonably current 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 to inform
CCEC of any inaccuracies contained therein prior to the
dissemination of such materials.
8. NONDISCLOSURE. Concurrently with the execution and delivery of this
Agreement, the Company and CCEC shall enter into the Confidentiality Agreement
attached hereto as Exhibit A, which Confidentiality Agreement shall form an
integral part of this Agreement.
9. 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 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 thirty (30) days;
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 thirty (30) days after CCEC -has given Company
written notice thereof, or if a petition in bankruptcy is filed by the
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Company, of if the Company is adjudicated of bankruptcy. Then, upon written
notice from CCEC to the Company, CCEC may terminate this Agreement and the
Company shall remain obligated to pay all amounts due to CCEC through the date
of termination. After the effective date of termination, CCEC shall have no
further obligation to provide services to the Company hereunder.
In the event of any breach or violation of this Agreement by CCEC of any of its
duties or obligations hereunder and such breach or violation is not fully cured
with thirty (30) days after written notice from the Company to CCEC, or if a
petition in bankruptcy is filed by CCEC, or if CCIEC is adjudicated a bankrupt,
the Company may, upon written notice, terminate this Agreement and the services
of CCEC hereunder. Notwithstanding any such termination, CCEC shall remain
responsible for any damages incurred by the Company as a result of such breach
or violation, if applicable.
10. REPRESENTATIONS AND WARRNTIES. Each of the Company and CCEC represents and
warrants to other for the purpose of inducing the other party to enter into and
consummate this Agreement as follows:
10.1 It has the power and authority to execute, deliver and perform
this Agreement.
10.2The execution and delivery by it of this Agreement has been
duly and validly authorized by all requisite action. No license,
consent or approval of any person is required to be obtained in
connection with its execution, delivery and performance of this
Agreement.
10.3 This Agreement has been duly executed and delivered by the
Company and CCEC. This Agreement is the legal, valid and binding
obligation of the Company and CCEC, as the case may be, enforceable
against the Company and CCEC, as the case may be, in accordance
with its respective terms, subject to the effect to any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
effecting creditors' rights generally and to general principals of
equity.
10.4 The execution and delivery by the Company and CCEC, as the
case may be, of this Agreement does not conflict with, constitute a
breach of or a default thereunder (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 and CCEC,
as the case may be; (iv) any agreement, indenture, instrument or
contract to which the Company and CCEC, as the case may be, is now
a party of by which it is bound.
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.
Parties addresses are as follows:
COMPANY: ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CCEC: ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
11.2 Entire Agreement. This Agreement represents the entire
Agreement between the Parties in relation to the subject matter
hereof and supersedes 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 writing signed by the Party
against whom enforcement is sought.
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.
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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 New York. The venue shall
be New York.
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; provided that CCEC may not
assign this Agreement without prior written consent of the Company.
11.8 Severability. If any 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. Any controversy, dispute or claim arising out of
or relating to this Agreement or the breach thereof shall tie
settled by binding arbitration, which shall be the exclusive means
of resolving any such controversy, dispute or claim. 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 conclusive and
binding on the parties, not subject to judicial review or appeal.
Judgement shall be entered upon an award of a majority of the
arbitrators filed in a court of competent jurisdiction and
confirmed by such court. The exclusive venue for such arbitration
proceedings shall be New York. The parties consent that the cost of
arbitration, 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
Continental Capital Corporation
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Starbase Corporation
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