EXHIBIT 10.58
ADMINISTRATIVE SERVICES AGREEMENT
This Agreement is made and entered into on this 1st day of January, 2005
by and between GelStat DTLL ("GelStat"), a Minnesota corporation, its affiliates
and DTLL, Inc. ("DTLL"), a Minnesota corporation, and its affiliates;
WITNESSETH THAT:
WHEREAS, GelStat currently owns approximately 94% of the issued and
outstanding capital stock of DTLL; and
WHEREAS, GelStat has the capacity to provide certain administrative
support and consulting services to DTLL in connection with its business; and
WHEREAS, DTLL desires to obtain such support services from GelStat and
GelStat desires to render such services to DTLL, all subject to the terms and
conditions hereinafter set forth; and
WHEREAS, DTLL and GelStat desire to share and use each other's resources
when practical;
NOW, THEREFORE, in consideration of the premises and the terms and
conditions hereinafter set forth, DTLL and GelStat do hereby agree as follows:
1. Appointment of GelStat. DTLL hereby retains GelStat for the purpose of
obtaining the services described herein for the benefit of DTLL and GelStat
hereby agrees to provide such services, all subject to the terms and conditions
described herein.
2. Term. The term of the Agreement commenced as of January 1, 2005 and
shall continue until terminated as herein provided.
3. Services Provided by GelStat. During the entire term of this Agreement,
GelStat shall provide to DTLL the following services in such amounts and in such
manner as shall be reasonably required to permit DTLL to conduct its business:
a. Office Facilities. GelStat agrees to provide DTLL with the
following office facilities:
i. Reasonable use of GelStat's office facility as designated
by GelStat. GelStat shall have the right to adopt, modify or rescind
reasonable rules governing the use of the office facility. GelStat
shall have the right, upon reasonable 90-day advance notice to DTLL,
to relocate DTLL.
ii. Telephone lines and telephone switchboard service in
common with GelStat.
iii. Use of GelStat's office equipment and miscellaneous
general office supplies.
iv. Secretarial assistance.
b. Accounting and Bookkeeping. On-going ledger maintenance and
preparation of required monthly and other periodic reports.
c. Preparation and Filing of SEC Reports. Preparation and filing of
required periodic reports with the Securities and Exchange Commission
d. Personnel. Access to professional and administrative staff
appropriate for the tasks described in b. and c., above.
e. Third party services. Facilities and services of persons other
than GelStat used by or for the benefit of DTLL will be billed to and paid
directly by DTLL.
f. Service fee. GelStat will provide the services and personnel for
a monthly fee of $25,000, subject to review by DTLL on request, but not
more often than twice in any 12-month period. That determination may be
reviewed by a representative of DTLL on request but not more than twice in
any 12-month period. GelStat invoices will be due and payable upon
receipt.
f. Disclaimer. DTLL acknowledges and agrees that DTLL is solely
responsible for managing its business and obtaining all services necessary
to operate its business in an efficient and compliant manner. DTLL further
acknowledges that DTLL shall be solely responsible for the payment of all
of the costs and expenses of obtaining all goods and services (except for
those to be provided by GelStat under this Agreement) which DTLL desires
in connection with the operation of its business, including, but not
limited to, all compensation payments to DTLL's employees, all
advertising, promotion and entertainment expenses with respect to its
business, all accounts payable to insurance companies and other trade
creditors of DTLL and every other item of cost or expense paid or insured
by DTLL in connection with the business. DTLL also acknowledges that
GelStat shall not be liable for any obligations or liabilities of DTLL
owed to third parties of any kind or nature.
4. Termination. This Agreement shall terminate and the obligations and
liabilities of both parties hereunder shall become null and void, except for any
liabilities or claims which shall have accrued or arisen prior to the effective
date of termination, as provided herein.
a. Automatic Termination. This Agreement shall automatically
terminate if:
i. Any proceedings in bankruptcy, insolvency or reorganization
shall be instituted by or against either party pursuant to any
federal or state law now or hereinafter enacted, or any receiver or
trustee shall be appointed for all or any portion of the business or
property of either party, and such proceedings shall not be
dismissed within sixty (60) days from the date of filing.
b. Termination of Agreement. Either party may terminate this
Agreement by giving ninety (90) days' advance written notice of
termination to the other party.
c. Indemnification. DTLL and GelStat agree to indemnify and hold
each other harmless from and against any and all claims, actions, demands,
expenses and judgments including, but not limited to, reasonable
attorneys' fees and costs, suffered or incurred by, and arising out of or
resulting from the acts and omissions of their respective agents and
employees, but only if such act or omission is attributable to gross
negligence. Each party shall promptly, but no more than ten (10) days
following receipt of notice of any claim or, in the case of a legal
proceeding, no more than five (5) days following actual notice to such
party of such proceeding, give notice to the other party of any loss,
liability, claim, damage or expense which by the terms of this paragraph
is the other party's obligation to indemnify against, and such
indemnifying party shall have the right to contest and defend any action
brought against the party to be indemnified, and shall have the right to
contest and defend any such action in the name of the other at its own
expense. If the indemnifying party fails to notify the other party of its
assumption of the defense of any such action within ten (10) days of the
giving of such notice by the party to be indemnified, then the party to be
indemnified shall have the right to take any such action as it deems
appropriate to defend, contest, settle or compromise any such action or
assessment and claim indemnification as provided herein. The failure of
the party to be indemnified to notify the other of any claim for which it
is entitled to indemnify hereunder shall not impair, limit or affect the
indemnification provided herein so long as the ability of the indemnifying
party to contest, defend or dispute such claim has not been materially or
adversely affected.
5. Supervision of Employees. DTLL and GelStat acknowledge and agree that
each shall be solely responsible for hiring, promoting, discharging,
disciplining and supervising their respective employees and that DTLL shall not
have the right to direct or supervise any of GelStat's employees except as
provided in this Agreement or without the prior written consent of GelStat.
6. Miscellaneous.
a. Each party agrees to comply with all applicable laws, rules and
regulations.
b. Any notice required or permitted hereunder shall be in writing
and shall be deemed given when personally delivered to their respective
chief executive officers or, in their absence, to any other officer of
either party. In the event that personal service cannot be obtained upon
an officer of a party, then notice to either party shall be sent by
certified mail, return receipt requested, as follows:
To GelStat: GelStat Corporation
0000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
To DTLL: DTLL, Inc
0000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Either party may change the addresses to which written notices shall
be sent by mail by giving proper notice of such change to the other party.
Any notice given by mail as aforesaid shall be deemed give to the
addressee two (2) business days following the date of mailing regardless
of the date the same is actually received by the addressee.
c. This Agreement may only be amended by written instrument executed
by DTLL and GelStat.
d. The law of the State of Minnesota shall exclusively apply to the
construction and interpretation of the Agreement. Each individual who has
executed this Agreement of behalf of a corporation represents and warrants
that he is duly authorized to execute and deliver this Agreement on behalf
of such corporation and that this Agreement is a valid and binding
obligation of such corporation in accordance with its terms.
e. If any portion of this Agreement, or portion thereof, or the
application thereof to any person or circumstance shall, to any extent, be
held by a court of competent jurisdiction to be invalid or enforceable,
the remainder of this Agreement shall not be affected there by and each
provision of the remainder of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
f. This Agreement and the terms, conditions and covenants herein
contained shall inure to the benefit of and be binding upon the respective
parties hereto and their respective successors and assigns.
g. Any default by DTLL (under any other Agreement that DTLL has with
GelStat) shall also be considered a default under this Agreement.
h. This Agreement supersedes and replaces any prior Agreements
between the parties hereto regarding the subject matter of this Agreement.
IN WITNESS OF, the undersigned have executed this Agreement as of the day
and year first above written.
GELSTAT CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
DTLL, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, M.D.,
Chief Executive Officer
