Market Access Program Marketing Agreement - Continental Capital & Equity Corp. and Adatom.com Inc.
MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this
8th day of November 1999, by and between CONTINENTAL CAPITAL & EQUITY
CORPORATION, located at 195 Wekiva Springs Road, Suite 200, Longwood, FL 32779
(hereinafter referred to as "CCEC,") and ADATOM.COM, INC., located at 920
Hillview Court, Suite 160, Milpitas, California 95035 (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 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 and fact sheets.
3.5 Conduct a tele-marketing campaign to th
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 P
NewsWire or BusinessWire.
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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 obtai
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 Fifteen thousand dollars ($15,000.00) cash
per month, payable quarterly in advance for the term of the Agreement.
4.2 Further, CCEC has the option to purchase two
hundred thirty thousand (230,000) shares of the Company's common stock as
follows: forty thousand (40,000) shares at a price per share of four dollars
($4.00) per share; fifty thousand (50,000) shares at a per share price of five
dollars ($5.00); sixty thousand (60,000) shares at a per share price of seven
dollars fifty cents ($7.50); and eighty thousand (80,000) shares at a per share
price of nine dollars ten cents ($9.10). The option to purchase 80,000 shares at
a purchase price of $9.10 shall only be exercisable if the closing price of the
Company's common stock averages in excess of $9.10 for 30 consecutive trading
days. The options shall expire twelve (12) 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 shall keep such Registration Statement effective for
the lesser of twelve (12) months or such period when all options are exercised.
CCEC accepts such options and will purchase any of the shares
underlying such options for investment and not with a view for resales or
distribution. All purchases of shares by CCEC shall be accompanied by such
representations as are necessary to establish an exemption from federal and any
applicable state securities laws. All options shall be non-transferable.
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:
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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 travel to 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 related to in
Section 3.8.
5.11 Company shall pay to CCEC reasonable costs
and expenses incurred within twenty (20) 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 of 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 promptl
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 at such time as the information
is to be made available to the public.
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6.5 Pay all costs and expenses incurred by
CCEC under the provisions of this Agreement when presented with invoices for the
same CCEC in accordance with Section 5.11.
6.6 Give full disclosure of all material fact
concerning the Company to CCEC and update such information on a timely basis.
6.7 Promptly pay the compensation due CCEC as
required 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 terminate this Agreement and recover all
amounts then due from the Company by suit or otherwise. 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 This Agreement has been duly executed an
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 knowingly contain any untrue statement of a material fact, or
knowingly omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading. There is no fact known to
the Company which the Company has not disclosed to CCEC, in writing, or in SEC
filings or press releases, which as of the date hereof materially adversely
affects, nor, so far as the Company can now reasonably foresee as of the date
hereof, 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
lesser 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 TO 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 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.
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
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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. CANCELLATION. This is a non-cancelable Agreement, except
that after one hundred eighty (180) days, the Company has the right to issue a
written notification of any material problem regarding CCEC's performance,
citing the specific contractual obligation breached by CCEC. Upon receipt of
written notification, CCEC will have thirty (30) days to correct or formally
address the Company's written concerns. If an amicable solution cannot be
achieved within sixty (60) days of the Company's letter, the contract becomes
cancelable immediately. During the written notification and correction review
period CCEC shall continue to receive full compensation, and such cancellation
shall not relieve the Company of any fees or compensation earned by or owed to
CCEC, including irrevocable rights to the options referenced in Section 4.2. In
no event will such proceedings be initiated by Company prior to the first one
hundred eighty (180) days of the Agreement.
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13. 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 ___ DAY OF __________ 1999.
CONTINENTAL CAPITAL & EQUITY CORPORATION
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Corporate Officer Witness
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Company Representative Witness
CONFIRMED AND AGREED ON THIS ___ DAY OF __________ 1999.
ADATOM.COM, INC.
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Corporate Officer Witness
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