Exhibit 10.23
FIRST AMENDMENT TO ANTENNA GROUP CLIENT SERVICES AGREEMENT
This First Amendment (the "Amendment") is made and entered into effective
as of July 6, 2007, by and among ECOLOGY COATINGS, INC., a California
corporation ("Client"), and ANTENNA GROUP, INC., a California corporation (the
"Antenna"). All capitalized terms in this Amendment shall have the same meanings
as such terms have in the Antenna Group Client Services Agreement, dated as of
March 1, 2005, among the foregoing parties (the "Agreement").
RECITALS
WHEREAS, Client and Antenna desire to amend the Agreement in accordance
with the terms set forth in this Amendment; and
WHEREAS, Paragraph 16 of the Agreement provides that the Agreement may be
modified by an instrument in writing signed by both parties.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and conditions set forth, the parties agree as follows:
AGREEMENT
1. Paragraph 19 of the Agreement is hereby incorporated into the Original
Agreement as follows:
19. ISSUANCE OF SERIES A ROUND STOCK: Client completed the minimum
amount of its private placement of Common Stock, no par value,
("Series A Funding Round") on July 6, 2007. Client shall issue to
Antenna ninety thousand (90,000) shares of its Common Stock, no
par value, in full and complete satisfaction of any and all
payments due Antenna from Client pursuant to Appendix A of the
Agreement and Antenna agrees to accept the same.
2. This Amendment shall become effective on the date written above.
3. The Agreement shall be deemed amended to the extent set forth in this
Amendment. The Agreement, as amended by the Amendment, shall constitute one
agreement. All other terms and provisions of the Agreement shall remain in full
force and effect. If there is any inconsistency with the terms of the Agreement
and the Amendment, the terms of the Amendment shall govern over the Agreement.
This Amendment is intended to be a final expression of the parties' agreement to
amend the Agreement and is intended to be a complete and exclusive statement of
their agreement and understanding with respect to such amendment.
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IN WITNESS WHEREOF, this Amendment has been entered into as of the day and
year first above written.
ECOLOGY COATINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Chairman
ANTENNA GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Its: President
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ANTENNA GROUP CLIENT SERVICES AGREEMENT
1. IDENTIFICATION OF PARTIES. This agreement, executed in duplicate with each
party receiving an executed original, is made between Antenna Group, Inc.,
hereafter referred to as "Antenna," and Ecology Coatings, Inc. hereafter
referred to as "Client." Antenna Group is located at 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, phone (000) 000-0000. Ecology Coatings
is located at 0000 Xxxxxxxx Xxxx, Xxxxx, Xxxx 00000, phone (000) 000-0000.
2. SERVICES TO BE PROVIDED. Antenna will provide to Client strategic marketing/
messaging consulting, and have primary responsibility for public relations
efforts, response and ongoing relations to the editorial community in relevant
venues within the Internet, print and broadcast media. Specific activities may
include writing and/or editing and distributing press materials, such as press
releases and backgrounders, researching appropriate media and contact personnel
and building a specific contact list, planning and attending press meetings and
media tours, researching and promoting speaker opportunities at relevant trade
shows and conferences, conducting editorial/analyst liaison at said conferences,
proactive and responsive promotion of Client's interests with media personnel,
and other activities which Antenna deems appropriate in given circumstances.
3. RESPONSIBILITIES OF ANTENNA GROUP AND CLIENT. Antenna will perform the public
relations services called for under this agreement, keep Client informed of
progress and developments, and respond promptly to Client's inquiries and
communications. Client will be truthful and cooperative with Antenna and keep
Antenna reasonably informed of developments and of Client's intended use of the
intellectual property developed by Antenna Croup in the course of the
engagement, which is the subject matter of this services agreement.
4. PRIMARY MEDIA/ANALYST CONTACT. Antenna will be designated as the primary
media/analyst contact. Building and maintaining media and analyst relationships
is essential to Antenna's ability to perform effectively for all clients. Client
agrees to include an Antenna representative whenever possible on all tours,
meetings and conference calls with media or analysts.
5. ANTENNA GROUP'S FEES. Fees to be paid to Antenna are based upon a monthly
retainer payable in advance of work performed. The monthly retainer, as set
forth in Appendix A to this Agreement, reflects the core amount of work that
Antenna estimates will be necessary to maintain an effective public relations
program for Client. The estimate is based upon the anticipated number of hours
necessary to perform the work, calculated at an average hourly rate of $175.
Incremental excess time charges may be necessary during periods of increased
activity, and are approved in advance by Client. For months in which excess time
charges can be anticipated due to increased Client activities such as press
tours or trade shows, Antenna will provide Client with a budget forecast for
approval. In the event that plans change within a given month, Antenna will
notify client of account status prior to incurring excess time charges, for
Client's approval of the excess charges.
Antenna Group Client Services Agreement for
Ecology Coatings, Inc. March 1, 2005
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The monthly retainer is to be paid before the first day of each month, and is
invoiced 30 days in advance. Approved incremental excess time charges will be
billed shortly after the month in which Antenna provided services and are due 15
days from the receipt of the invoice. Past due invoices will be charged a late
fee of 1.5% per month. Antenna reserves the right to stop work until Client has
remedied any failure to pay. Should collection efforts become necessary, Client
will be responsible for reasonable attorney's fees.
6. OUT-OF-POCKET EXPENSES. As is standard practice, out-of-pocket expenses
incurred by Antenna in association with providing services to Client will be
billed separately from and additionally to fees, and will include a xxxx-up of
12%. Out-of-pocket expenses include but are not limited to telephone charges;
messenger service fees; postage; client-relevant newspaper and magazine
subscriptions; online media database services; travel expenses; and reasonable
expenses for entertainment of press/analysts done on Client's behalf.
Costs of services provided by third-party suppliers or vendors, including but
not limited to newswire distribution costs, publicity tracking costs and mail
house fees may be billed directly to Client by the vendor. If for any reason,
Client requires Antenna to provide payment to one or more of these suppliers,
then Client will reimburse all such costs to Antenna, including an 18% xxxx-up
for the cost of facilitating these payments.
Expense reimbursements are due net 15 days. Past due invoices will be charged a
late fee of 1.5% per month.
7. CLIENT'S PROPERTY AND CONFIDENTIAL INFORMATION. It is understood that Antenna
will receive and/or have access to Client's property and/or confidential
information in the course of fulfilling its obligations under this services
agreement. Antenna will keep this information confidential and not disclose it
to third parties unless Client consents to said disclosure.
8. NON-SOLICITATION. Client and Antenna individually represent and warrant that
neither shall seek to hire any employee(s) away from the other. Neither party
shall directly or indirectly, either for their own or for any other person,
firm, corporation, or business, solicit, divert, or attempt to divert any of the
customers or employees of the other to transfer their business or employment.
9. INTELLECTUAL PROPERTY. The intellectual property in the form of databases and
methodologies developed in the course of the engagement, which is the subject
matter of this agreement, is and shall remain the intellectual property of
Antenna. Client may be granted a license to use or benefit from the databases or
methodologies, but only on the condition of full payment of all fees and costs
advanced on behalf of Client under this agreement and for use or benefit
relating to the purpose or occurrence for which the intellectual property was
developed. Intellectual property in the form of materials such as press
releases, backgrounders and white papers prepared by Antenna for Client shall be
the property of Client.
Antenna Group Client Services Agreement for
Ecology Coatings, Inc. March 1, 2005
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10. TERMINATION OF ENGAGEMENT. Client may terminate this agreement upon 30-days
written notice to Antenna, but shall remain responsible for the balance of any
unpaid monthly retainer fees. Client shall also be responsible for all project
fees and expenses incurred prior to the expiration of the 30 days written notice
of termination by the Client.
Antenna may terminate this agreement if Client fails to pay any costs or fees
stemming from this agreement or engagement in accordance with this agreement
after 10-days written notice. If Client remedies any such failure to pay before
this 10-day period has passed, Antenna agrees not to terminate the agreement for
reason of non-payment.
11. RELEASE OF CLIENT'S PAPERS AND PROPERTY. At the termination of services
under this agreement, Antenna will release promptly to Client all of Client's
papers and property, which it provided to Antenna.
12. RETENTION OF ANTENNA'S WORK PRODUCT UNTIL FINAL PAYMENT. Antenna shall be
entitled to retain its final work product until the final payment of all
retainer and project fees and costs under this agreement have been pain to
Antenna.
13. DISCLAIMER OF GUARANTEE. Although Antenna may offer an opinion about
possible results regarding the subject matter of this agreement, Antenna cannot
guarantee any particular result. Client acknowledges that Antenna has made no
promises about the outcome and that any opinion offered by Antenna in the future
will not constitute a guarantee.
14. ENTIRE AGREEMENT. This agreement and appendices contain the entire agreement
of the parties relating to the subject mailer of the services provided
hereunder. No other agreement, statement, representations or promise, whether
oral or written, made on or before the effective date of this agreement will be
binding on the parties.
15. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this
agreement is held in whole or in part to be unenforceable for any reason, the
remainder of that provision and of the entire agreement will be severable and
remain in effect.
16. MODIFICATION BY SUBSEQUENT AGREEMENT. This agreement may be modified only by
subsequent agreement of the parties by an instrument in writing signed by both
of them.
17. AGREEMENT TO BINDING ARBITRATION. Any controversy or claim arising out of or
relating to this contrast or engagement or breach thereof, shall be settled by
arbitration and administered by the American Arbitration Association in
accordance with its rules, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
In rendering the award, the arbitrator shall determine the rights and
obligations of the parties according to the substantive and procedural laws of
the State of California. The arbitration proceedings shall be conducted in San
Francisco, California.
The prevailing party in any arbitration shall be awarded is attorneys' fees and
costs incurred in connection with the arbitration.
Antenna Group Client Services Agreement for
Ecology Coatings, Inc. March 1, 2005
QBPHX\126261.00002\2103676.1 Page 3 Initials: /s/ & /s/
18. EFFECTIVE DATE OF AGREEMENT. The effective date of this agreement will be
March 2, 2005.
The foregoing is agreed to by:
Date: Date: March 1, 2005
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ECOLOGY COATINGS, INC. ANTENNA GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxx
President and CEO President
Antenna Group Client Services Agreement for
Ecology Coatings, Inc. March 1, 2005
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APPENDIX A
FEE SCHEDULE FOR ECOLOGY COATINGS
MARCH 2005 - CLOSE OF SERIES A DATE OF SERIES A CLOSE -
FUNDING ROUND ONGOING
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Monthly Retainer $9,000/MONTH $9,000/MONTH
$6,000/month to be paid in cash $9,000/month to be paid in cash
$3,000/month to be paid in equity
discounted 20 percent against the
Series A Round
Minimum agency hours per month based 53 hours 53 hours
upon an average hourly rate of $175
The monthly retainer covers the base-level amount of activity estimated as
necessary to conduct Client's program. Changes in Client's plans, increases in
expectations and periods of unusual intensity -- such as press tours -- may need
to be reflected in incremental excess time charges that exceed the monthly
retainer.
For months in which excess time charges can be anticipated due to increased
Client activities, Antenna will provide Client with a budget forecast for
approval. In the event that plans change within a given month, Antenna will
notify clients of account status, prior to incurring excess time charges, for
Client's approval of the excess charges.
If it appears that Antenna is not making the minimum monthly fee, then Antenna
will work with Client to adjust workload, priorities and/or fees.
Monthly retainer fee of $9,000 to be revisited upon close of Series A Funding
Round.
Antenna Group Client Services Agreement for
Ecology Coatings, Inc. March 1, 2005
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