EXHIBIT 10.13
SERVICE AGREEMENT
This SERVICE AGREEMENT (the "Agreement') is made and entered into this
25th day of October, 2003, by and between ELITE FINANCIAL COMMUNICATIONS GROUP,
LLC, located at 000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxx
00000, (hereinafter referred to as "ELITE") and INTEGRATED BUSINESS SYSTEMS &
SERVICES, INC., located at 0000 Xxxx Xxxx, Xxxxx X, Xxxxxxxx, Xxxxx Xxxxxxxx
00000 (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 ELITE as an independent contractor, and ELITE
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. However, the Company
shall retain the right to terminate this Agreement following 90 consecutive days
of representation by ELITE. Said desire to terminate must be submitted in
writing to ELITE by the Company no less than 30 days prior to the desired
termination date.
3. DUTIES AND OBLIGATIONS OF ELITE
3.1 ELITE will review and analyze various aspects of the Company's
goals and make recommendations on feasibility and achievement
of desired goals.
3.2 Through its Tele-Market Relations Group, ELITE will provide
exposure to its network of firms and brokers that may be
interested in participating with the Company, schedule and
conduct the necessary due diligence, and obtain the required
approvals necessary for those firms to participate. ELITE will
also interview and make determinations on any brokerage or
institutional firms referred by the Company with regard to
their participation.
3.3 At the Company's request, ELITE will be available to field any
calls from firms, individual investors/shareholders and
brokers inquiring about the Company. In addition, ELITE will
assist the Company in preparing its quarterly communications
relative to its financial results and coordinate corresponding
news announcements, conference calls and simulcasts on the
Internet in accordance with Regulation FD.
3.4 ELITE will feature the Company on the Internet via ELITE's
home web site (xxx.xxxx.xxx) within the Elite Financial Forum
which will feature comprehensive information relative to the
Company's fundamental and technical strengths, as well as
industry and corporate overviews; management biographies;
stock trading history; market making activity; conference
call/webcast archives; and other information meaningful to the
investment community. The Forum will be updated routinely and
provide for site visitors to request ongoing information about
the Company as it is released.
3.5 ELITE shall write, produce and/or assist the Company in
preparing and releasing all news announcements. The Company
shall be solely responsible for paying all fees associated
with the actual release(s) through BusinessWire, PR Newswire,
or any other comparable news dissemination source. ELITE will
create, build and continually enhance a database of all
brokers, investors, analysts and media contacts who have
expressed an interest in receiving ongoing information on the
Company and manage the ongoing distribution of news
announcements and/or other Company approved communications.
3.6 ELITE shall serve as the Company's publicist and will strive
to obtain coverage in both national and industry publications,
in financial newsletters, on financial radio and television
programming and via traditional press mediums. Specifically,
ELITE will facilitate an ongoing outreach program to an
intelligently targeted universe of media professionals.
Further, ELITE will track published articles and in
association with Burrelles provide monthly clippings of those
articles/mentions featuring the Company.
3.7 At the Company's request, strive to obtain the Company analyst
coverage and/or investment banking sponsorship.
3.8 ELITE shall arrange for a series of due diligence meetings
with select broker/dealers, institutional investors and
analysts at predetermined dates throughout the campaign term,
while remaining compliant with the rules and regulations
associated with Regulation FD.
3.9 ELITE shall develop customized, high-quality, high-impact and
fully integrated financial communications programs and
platforms, and leverage our strategic resources to enhance
general product/service marketing programs initiated by the
Company.
3.10 ALL OF THE FOREGOING ELITE-PREPARED DOCUMENTATION CONCERNING
THE COMPANY, INCLUDING, BUT NOT LIMITED TO, INFORMATIONAL
WRITE-UPS, NEWS ANNOUNCEMENTS, SHAREHOLDER LETTERS, ET AL,
SHALL BE PREPARED BY ELITE USING MATERIALS SUPPLIED TO IT BY
THE COMPANY AND SHALL BE APPROVED BY THE COMPANY PRIOR TO
DISSEMINATION BY ELITE.
Page 2 of 8 Initial Company ____________ Initial ELITE __________
4. ELITE'S COMPENSATION
4.1 $10,000 cash, payable per month with the first payment of
$10,000 due immediately following execution of this Agreement
and subsequent monthly payments due every 30 days thereafter
for the term of the Agreement. The Company agrees to make all
monthly payments on the applicable due date and in no event
beyond five (5) days past the due date. For every five (5)
days past the applicable payment due date, the Company shall
be assessed a late fee equal to 10% of the outstanding amount
until the payment is received by ELITE.
4.2 ELITE would also be entitled to receive an option or warrant
to purchase up to 200,000 common shares of the Company's
common stock, exercisable as follows:
4.2.1 50,000 shares exercisable at $0.30 per share, which
shall vest immediately.
4.2.2 50,000 shares exercisable at $0.35 per share, which
shall vest on the 91st day following execution of
this Agreement;
4.2.3 50,000 shares exercisable at $0.40 per share, which
shall vest on the 181st day following execution of
this Agreement; and
4.2.4 50,000 shares exercisable at $0.45 per share, which
shall vest on the 271st day following execution of
this Agreement.
4.3 The Company shall agree to issue ELITE piggyback registration
rights for the common shares underlying the option/warrant
listed above, whereby these shares will be registered for
resale by ELITE on the first applicable Registration Statement
filed by the Company with the US. Securities & Exchange
Commission; said underlying shares common shares shall be held
by the Company until such time as ELITE elects to exercise its
option or warrant to purchase the common shares. The term of
the option/warrant shall expire 24 months from the date the
Registration Statement registering the shares underlying the
option/warrant is deemed effective.
5. ELITE'S EXPENSES AND COSTS
Company shall pay all reasonable costs and expenses incurred by ELITE, its
directors, officers, employees and agents, in carrying out its duties and
obligations pursuant to the provisions of this Agreement, excluding ELITE'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 $1.00 (One Dollar) must be approved by the Company in writing prior to
ELITE'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.
Page 3 of 8 Initial Company ____________ Initial ELITE __________
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 is not supplied by the Company.
6. COMPANY'S DUTIES AND OBLIGATIONS
Company shall have the following duties and obligations under this Agreement:
6.1 Cooperate fully and timely with ELITE so as to enable ELITE to
perform its obligations under this Agreement.
6.2 Within ten (10) days of the date of execution of this
Agreement to deliver to ELITE a complete due diligence package
on the Company, including all the Company's filings with the
U.S. Securities and Exchange Commission within the last twelve
months; the last six (6) months of press announcements on the
Company; and all other relevant materials with respect to such
filings, including but not limited to, corporate reports,
brochures, and the like, and a list of analysts and or fund
managers, who 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 ELITE and
inform ELITE of any inaccuracies contained therein prior to
the dissemination of such materials.
6.4 Promptly give written notice to ELITE of any change in the
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 Promptly pay all Company pre-approved costs and expenses
incurred by ELITE under the provisions of this Agreement when
presented with invokes for the same by ELITE.
6.6 Give full disclosure of all material facts concerning the
Company to ELITE and update such information on a timely
basis.
Page 4 of 8 Initial Company ____________ Initial ELITE __________
6.7 Promptly pay the compensation due ELITE under the provisions
of this Agreement, and as defined in Section 4 herein.
7. NONDISCLOSURE
Except as may be required by law, the Company, its officers, directors,
employees, agents and affiliates shall not disclose the contents and provisions
of this Agreement to any individual or entity without ELITE's expressed written
consent subject to disclosing same further to Company counsel, accountants and
other persons performing investment banking, financial, or related functions for
the Company.
8. COMPANY'S DEFAULT
In the event of any default in the payment of ELITE'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 five (5) days after
ELITE's written 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 five (5) days after ELITE 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, of if a receiver
shall be appointed for the Company's property, then upon the happening of any of
such events, ELITE 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 due of ELITE, including court
costs, (including such attorney fees, paralegal fees, costs and expenses
incurred on appeal) if ELITE employs an attorney to collect the aforesaid
amounts or to enforce other rights of ELITE provided for in this Agreement in
the event of any default as set forth above and ELITE prevails in such
litigation.
9. COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to ELITE for the purpose of inducing ELITE
to enter into and consummate this Agreement as follows:
9.1 The Company has the power and authority to execute, deliver
and perform under 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 form is
required for the Company's execution and delivery of this
Agreement.
Page 5 of 8 Initial Company ____________ Initial ELITE __________
9.3 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 ELITE 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 ELITE, in writing, or
in SEC filings or news announcements, 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. LIMITATION OF ELITE LIABILITY
If ELITE fails to perform its services hereunder, its entire liability to the
Company shall not exceed the lessor of (a) the amount of cash compensation ELITE
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 ELITE 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 ELITE, 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 first above written. 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 supercedes and voids 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 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 and in
no way affect this Agreement, define, limit or describe its
scope or any of its provisions.
Page 6 of 8 Initial Company ____________ Initial ELITE __________
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 render invalid or unenforceable any other
provisions 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 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 or 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 attorney's 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 as follows:
CONFIRMED AND AGREED ON THIS 28TH DAY OF OCTOBER, 2003.
ELITE FINANCIAL COMMUNICATIONS GROUP, LLC
By: /s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxxxxx
-------------------------------- --------------------------------
ELITE OFFICER WITNESS
President Xxxxxx X. Xxxxxxxxxxxx
-------------------------------- --------------------------------
PRINT NAME PRINT NAME
Page 7 of 8 Initial Company ____________ Initial ELITE __________
CONFIRMED AND AGREED ON THIS 28TH DAY OF OCTOBER, 2003.
INTEGRATED BUSINESS SYSTEMS & SERVICES, INC
By: /s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxxx
-------------------------------- --------------------------------
DULY AUTHORIZED WITNESS
Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx
-------------------------------- --------------------------------
PRINT NAME PRINT NAME
Page 8 of 8 Initial Company ____________ Initial ELITE __________
