AMENDED AND RESTATED SERVICE CONTRACT
AMENDED
AND RESTATED SERVICE CONTRACT
This
Agreement (the “Agreement”) is by and among Public Company Management Corp.
(“PCMC”), for itself and on behalf of its wholly-owned subsidiaries,
XxXxxxxxXxxxx.xxx, Inc., (“GPT”)
and
Public Company Management Services, Inc. (“PCMS”),
all
of 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, and the undersigned (hereinafter
referred to as the “Client”):
COMPANY: APC
GROUP, INC.
ADDRESS: 0000
XXXXXXXXXX XXXXXX
XXXX/XXXXX/XXX: XXXXXXXXX,
XX 00000
CONTACT
PERSON: XXX
XXXXXXXX
TELEPHONE: (000)
000-0000
PCMC,
through its subsidiaries, GPT and PCMS, hereby
agrees to provide advice and assistance to Client in conjunction with the sale
of securities issued by Client to investors. NOTHING
HEREIN SHALL BE CONSIDERED INVESTMENT, LEGAL, TAX OR ACCOUNTING ADVICE. NOR
SHALL THIS AGREEMENT BE CONSTRUED TO BE AN OFFER TO PURCHASE OR SOLICITATION
OF
AN OFFER TO SELL SECURITIES ISSUED BY CLIENT, AN AGREEMENT BY PCMC TO OFFER
SECURITIES FOR SALE OR SOLICIT OFFERS TO PURCHASE SECURITIES ON BEHALF OF
CLIENT, OR AN AGREEMENT TO REFER INVESTORS OR POTENTIAL INVESTORS TO CLIENT.
NOTHING HEREIN SHALL REQUIRE PCMC TO UNDERWRITE OR OTHERWISE PARTICIPATE IN
THE
DISTRIBUTION OF ANY SECURITIES BY CLIENT.
In
consideration of mutual promises made herein and for other good and valuable
consideration, the sufficiency of which are hereby acknowledged by PCMC and
Client, both parties agree as follows:
1. Duties
of GPT and PCMS:
The
following paragraphs outline the services that may be provided by GPT and/or
PCMS. Only those services that are requested by Client and required or advisable
in the opinion of PCMC will be performed. Client understands that not all
services may be provided, that the services may be provided in an order
different than set forth below or simultaneously and that additional services
not identified may be required. To the extent that it can do so without
violating law, PCMC will provide such additional services.
· |
Corporate
Structure. GPT
will provide advice and consultation relating to a review and analysis
of
the financial structure, incorporation status, business, and other
matters
that may affect Client’s continued existence and suitability for becoming
a public company. Client authorizes GPT to identify professional service
providers such as lawyers and accountants to act as necessary to conduct
a
review of the corporate records, identify deficiencies, and recommend
corrective actions required.
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· |
Initial
Investment. GPT
will provide advice and consultation relating to the solicitation by
Client of investment from not more than ten (10) persons that have
a
substantial business relationship with Client in a private placement
according to Section 4(2) of the Securities Act of 1933. Client authorizes
GPT to identify independent professional service providers such as
lawyers
and accountants as necessary to prepare corporate documentation and
offering documents, qualify securities issued by Client under exemptions
from registration with the United States Securities and Exchange
Commission and state regulatory agencies, provide advice and
representation of Client, and otherwise represent and assist Client
in
such offering.
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Regulation
D Offering. GPT
will
provide advice and consultation relating to the offering of securities by the
Client pursuant to Regulation D under the Securities Act of 1933 and the
qualification of such offering under the state securities laws of each state
in
which any securities are offered. Client authorizes GPT to identify independent
professional service providers such as lawyers, accountants and securities
brokers as necessary to prepare corporate documentation and offering documents,
qualify securities issued by Client under Regulation D under the Securities
Act
of 1933 and exemptions under state securities laws, provide advice and
representation of Client, and otherwise represent and assist Client in such
offering.
· |
Registration
Under Securities Exchange Act of 1934. GPT
will provide advice and consultation relating to the registration of
securities by the Client pursuant to Section 12 of the Securities Exchange
Act of 1934. Client authorizes GPT to identify independent professional
service providers such as lawyers and accountants to prepare corporate
documentation and registration statements, provide advice and
representation of Client, and otherwise represent and assist Client
in
such registration.
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· |
Market
Listing. GPT
will provide advice and consultation relating to the listing of or
admission to trading of securities issued by Client on a national
securities exchange, the NASDAQ National Market System, the Over the
Counter Bulletin Board, the Pink Sheets, or foreign securities markets,
as
determined by GPT to be appropriate. Client authorizes GPT to identify
independent professional service providers such as lawyers, accountants
and securities professionals to prepare corporate documentation and
listing applications, provide advice and representation of Client,
and
otherwise represent and assist Client in such application.
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· |
Public
Offering. GPT
will provide advice and consultation relating to the registration of
securities by the Client and its stockholders pursuant to Section 6
of the
Securities Act of 1933. Client authorizes GPT to identify independent
professional service providers such as lawyers, accountants,
broker/dealers, and underwriters to prepare corporate documentation
and
registration statements, provide advice and representation of Client,
and
otherwise represent and assist Client in such registration.
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· |
Compliance.
PCMS
will provide advice and consultation relating to compliance with Section
13, Section 14, Section 15 and Section 16 of the Securities Exchange
Act
of 1934. Client authorizes PCMS to identify independent professional
service providers such as lawyers, accountants, broker/dealers, and
underwriters to prepare corporate documentation and periodic reports,
provide advice and representation of Client, and otherwise represent
and
assist Client in such compliance activity.
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2. Duties
of Client
Client
agrees to provide GPT and PCMS with any information and documents as may be
requested by GPT or PCMS in connection with the services to be performed for
Client, including without limitation an initial questionnaire and the annual
questionnaire provided at the end of each fiscal year of Client. Client shall
be
solely responsible for the accuracy and completeness of all information and
representations contained in any documents provided by Client. Client agrees
that it will not engage in any of the following without the approval of GPT
and
PCMS:
· |
Issuance
or sale of any stock, warrant, option, convertible debt or other
instrument giving any person the right to subscribe for or receive
share
of any security issued by Client
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· |
Purchase,
sale, or lease (whether as lessor or lessee) of any material portion
of
the assets of Client except in the ordinary course of Client’s business
consistent with the manner in which such business was conducted prior
to
the date hereof
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· |
Merger,
consolidation, or other combination, or entry into any partnership,
joint
venture, or other joint enterprise with any
person
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· |
Introduction
of any new product of service
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· |
Make
any public statement or press release regarding any matter or advise
any
person about the scope and nature of the engagement of GPT, including
any
general announcement of an offering of its
securities
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3. Initial
Compensation:
Client
will pay to GPT the sum of $75,000 (the “Initial
Cash Compensation”)
and
will issue to GPT 500,000 shares of common stock, having an agreed value of
$350,000 (the “Initial
Stock Compensation”).
GPT
acknowledges that it has received the sum of $49,500 in cash and 500,000 shares
of common stock. The remaining Initial Cash Compensation will be paid upon
the
effective date or abandonment of the registration statement filed by Client
with
the SEC.
4. Continuing
Compensation: In
the
event that Client registers any securities pursuant to the Securities Act of
1933 or the Securities Act of 1934, Client agrees to pay to PCMS the sum of
$48,000 (the “Continuing
Cash Compensation”)
and to
issue 750,000 shares of its common stock (the “Continuing
Stock Compensation”)
for
services to be provided by PCMS under this Agreement during the first 12 months
following the effective date of such registration. Client acknowledges and
agrees that if it fails for any reason to issue the Continuing Stock
Compensation to PCMS within 30 days after the date of such registration, Client
will be obligate to pay to PCMS the market value of the Continuing Stock
Compensation on the 31st
day
after the date of such registration. The Continuing Cash Compensation shall
be
paid in 12 installments of $4,000 each due on the first day of the 12 months
commencing after the effective date of such registration.
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5. Other
Expenses:
Client
agrees to pay all direct filing fees required to be submitted with any
registration, filings, membership applications, self-regulatory agency fees,
bonding, fingerprinting, or testing expenses. Neither GPT nor PCMS will be
responsible for printing, overnight mail costs, or other out of pocket expenses
associated with the services described above. GPT and PCMS will authorize
lawyers and accountants (other than auditors) with whom it has negotiated fee
structures to extend the benefit of such structures to Client and Client hereby
authorizes GPT and PCMS to pay such fees on behalf of Client out of the Initial
Cash Compensation and the Continuing Cash Compensation. Client will pay all
auditing fees directly to the accountants retained to audit its financial
records.
6. TIMELY
REVIEW BY CLIENT:
CLIENT
WILL PROMPTLY RETURN ALL DOCUEMNTS SUBMITTED FOR SIGNATURE WITH A CHECK PAYABLE
TO THE APPOPRIATE PAYEE. ANY REVISIONS NECESSARY AS A RESULT OF THE FAILURE
TO
PROMPTLY RETURN DOCUMENTS WILL BE BILLED TO CLIENT AT THE THEN CURRENT HOURLY
RATE OF THE PROFESSIONAL PROVIDER INVOLVED.
7. Certain
Circumstances:
Neither
GPT nor PCMS assume any responsibility for occurrences beyond their respective
control, including but not limited to Federal and state filing backlogs or
agency computer breakdowns, which may result in processing delays. In no event
will GPT be liable for actual, incidental, consequential, related or any other
type of damages, in any amount, attributable to such error or oversight on
the
part of GPT.
8. Indemnification:
Client
hereby agrees to indemnify and hold harmless GPT and PCMS, their respective
partners, employees, agents, representatives, assigns, and controlling persons
(and the officers, directors, employees, agents, representatives, assigns and
controlling persons of any of them) from any and all losses, claims, damages,
liabilities, costs, and expenses (and all other actions, suits, proceedings,
or
claims in respect thereof) and any legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise (including,
without limitation, the cost of investigating, preparing or defending any such
action, suit, proceeding, or claim, whether or not in connection with any
action, suit, proceeding or claim for which it is a party), as and when
incurred, directly or indirectly, caused by, relating to, based upon or arising
out of the services pursuant to this Agreement so long as GPT and PCMS have
not
committed intentional or willful misconduct, nor acted with gross negligence,
in
connection with the services which form the basis of the claim for
indemnification. Client further agrees that GPT and PCMS shall incur no
liability on account of this Agreement or any acts or omissions arising out
of
or relating to this Agreement except for such intentional or willful misconduct.
This paragraph shall survive the expiration or termination of this
Agreement.
/s/KF
Please
Initial:
___________ Client also expressly indemnifies GPT and PCMS for any future
liabilities, whether administrative, civil, or criminal related to the improper
use by Client or its assigns of any and all documentation that is provided
to
Client by GPT or PCMS pursuant to this Agreement.
/s/KF
Please
Initial:
___________ Client hereby
further agrees to indemnify GPT and PCMS against any action, suit, claim or
proceeding, whether civil, criminal or administrative, and against any fine,
cost, levy, expense, judgment or award arising therefrom (collectively a
“Claim”), in which GPT or PCMS may be involved (whether as a witness or a party)
as a result of any application or document filed or processed by GPT or PCMS,
on
Client’s behalf, which contains any false or misleading statement or omission of
material fact or which, other than through gross negligence of GPT or PCMS,
violates any statute, rule or order of any Federal, state or self-regulatory
authority. Client agrees that GPT and PCMS shall have no responsibility to
verify the accuracy or adequacy of any statement, document, fact or information
provided to GPT or PCMS by Client or Client’s attorney, accountant,
representative or agents.
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9. Independent
Contractor Status:
GPT and
PCMS shall perform their respective services under this Agreement as an
independent contractor and not as an employee of Client or an affiliate thereof.
It is expressly understood and agreed to by the parties hereto that GPT and
PCMS
shall have no authority to act for, represent or bind Client or any affiliate
thereof in any manner, except as provided for expressly in this Agreement or
in
writing by Client.
10. Additional
Services:
Client
understands and acknowledges by the acceptance of this Agreement that any and
all services outside the direct scope listed in Section 1 above shall be billed
to Client by GPT or PCMS at GPT’s or PMCS’s then current hourly rates. Such
services specifically include, but are not limited to, services required as
a
result of any change in the corporate or financial structure of Client after
the
execution of this Agreement which is not approved in advance by
GPT.
11. Late
Fees:
Any
invoice not paid within thirty (30) days of such billing is subject to a 1.5%
monthly interest charge. GPT and PCMS reserve the right to use any and all
means
of collection available under applicable law to collect any amount past
due.
12. Amendment
and Modification:
Subject
to applicable law, this Agreement may be amended, modified or supplemented
only
by a written agreement signed by all parties. No oral modifications to this
Agreement may be made.
13. Entire
Agreement:
This
Agreement contains the entire understanding between and among the parties and
supersedes any prior understandings and agreements among them respecting the
subject matter of this Agreement. The failure by GPT or PCMS to insist on strict
performance of any term or condition contained in this Agreement shall not
be
construed by Client as a waiver, at any time, of any rights, remedies or
indemnifications, all of which shall remain in full force and effect from time
of execution through eternity.
14. Agreement
Binding:
This
Agreement shall be binding upon the heirs, executors, administrators, successors
and permitted assigns of the parties hereto. Client shall not assign its rights
or delegate its duties under any term or condition set forth in this Agreement
without the prior written consent of GPT and PCMS.
15. Attorney’s
Fees:
In the
event an arbitration, mediation, suit or action is brought by any party under
this Agreement to enforce any of its terms, or in any appeal therefrom, it
is
agreed that the prevailing party shall be entitled to reasonable attorney’s fees
to be fixed by the arbitrator, mediator, trial court and/or appellate
court.
16. Severability:
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced
as
if such illegal, invalid or unenforceable provision never comprised a part
hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid and unenforceable provision, there shall be added automatically as
part
of this Agreement a provision as similar in nature in its terms to such illegal,
invalid or unenforceable provision as may be legal, valid and enforceable.
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17. Governing
Law:
This
Agreement shall be governed by the laws of the State of Nevada, and the venue
for the resolution of any dispute arising thereof shall be in Xxxxx County,
State of Nevada.
18. Disclosure:
Client
has received and reviewed a copy of Part II of Adviser’s Form ADV, as well as a
copy of this Agreement. Client has the right to terminate this agreement without
penalty within five business days after entering into the agreement.
IN
WITNESS THEREOF,
the
parties above have caused this Agreement to be duly executed, as of the day
and
year set out below.
Public Company Management Corp. | ||
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Date: 06/15/2007 | By: | /s/ Xxxxxxx Xxxxx |
Xxxxxxx Xxxxx |
XxXxxxxxXxxxx.xxx, Inc. | ||
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Date: 06/15/2007 | By: | /s/ Xxxxxxx Xxxxx |
Xxxxxxx Xxxxx |
Public Company Management Services, Inc. | ||
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Date: 06/15/2007 | By: | /s/ Xxxxxxx Xxxxx |
Xxxxxxx Xxxxx |
APC GROUP, Inc. | ||
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Date: 06/15/2007 | By: | /s/ Xxx Xxxxxxx |
Xxx Xxxxxxx |
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