SERVICES AGREEMENT
Exhibit
10.10
THIS
SERVICES AGREEMENT (the "Agreement") is made and entered into as of June 27,
2008 (the "Effective Date") by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇ Supply ("▇▇. ▇▇▇") and
▇▇▇ Distributing, Inc., a Nevada corporation ("▇▇▇ Distributing").
BACKGROUND
▇▇. ▇▇▇ and ▇▇▇ Distributing wish to
establish an "arms length" agreement for the provision of services to be
provided to ▇▇▇ Distributing by ▇▇. ▇▇▇.
▇▇▇ Distributing is in the business of
distributing organic fertilizer products in eastern Idaho (the “Fertilizer
Distribution Business”).
▇▇▇ Distributing has requested ▇▇. ▇▇▇
to provide certain services related to the operation of the Fertilizer
Distribution Business and ▇▇. ▇▇▇ desires to provide such services to Cox
Distributing during the Term (as defined hereinafter).
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants contained in this Agreement and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Services. During
the term of this Agreement, ▇▇. ▇▇▇ shall be entitled to the use of Cox
Distributing's present facilities, equipment, information systems and files in
order for ▇▇. ▇▇▇ to provide the following services as it relates to the
Fertilizer Distribution Business (the “Services”):
a. Payroll. All
necessary payroll services, including the preparation and filing of Form W-2 for
each employee of the Fertilizer Distribution Business. ▇▇▇
Distributing shall establish a bank account with funds sufficient to make
payments for all amounts paid out to the employees of the Fertilizer
Distribution Business pursuant to this Section 1(a) and such account shall be
funded by Cox Distributing from the revenues generated by the Fertilizer
Distribution Business. ▇▇. ▇▇▇ shall make all information
relating to the payment of such employee payroll available to ▇▇▇ Distributing
upon reasonable request therefore.
b. Accounting
Services. ▇▇. ▇▇▇ agrees to provide Cox Distributing
with accounting and financial assistance in closing the Fertilizer Distribution
Business's books consistent with the fiscal close periods and procedures
established by ▇▇▇ Distributing. ▇▇. ▇▇▇ shall also assist ▇▇▇
Distributing in maintaining financial statements for the Fertilizer Distribution
Business, including preparation by ▇▇. ▇▇▇ of balance sheets, profit and loss
statements and a general ledger, preparing tax returns and whatever additional
accounting and financial services as may reasonably be requested by ▇▇▇
Distributing relating to the Fertilizer Distribution Business.
c. Sales and Customer
Service. ▇▇. ▇▇▇ shall provide all sales and customer service
support for the Fertilizer Distribution Business including, without limitation,
obtaining orders for sales and marketing of products offered by ▇▇▇ Distributing
and the supply of such products in connection with the operation of the
Fertilizer Distribution Business answering customer inquiries, referring return
information and requests to the appropriate personnel and such other functions
as may be reasonably requested by ▇▇▇ Distributing.
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d. Collection of Accounts
Receivable. ▇▇. ▇▇▇ shall collect accounts receivable of ▇▇▇
Distributing in a commercially reasonable manner. ▇▇. ▇▇▇ shall pay
over to Cox Distributing all such Accounts Receivable as specified in Section 1
(e) hereof. ▇▇. ▇▇▇ will make available to Cox Distributing reports
setting forth the amount of Accounts Receivable collected, the persons from whom
such Accounts Receivable have been collected and, if specified by the payor, the
invoice number and date to which such Accounts Receivable are to be
applied. ▇▇. ▇▇▇ further agrees to make all information relating to
the collection of the Accounts Receivable available to ▇▇▇ Distributing upon
reasonable request therefore.
e. Collection
Procedures. ▇▇. ▇▇▇ will collect all payments on invoices
rendered by ▇▇▇ Distributing. ▇▇. ▇▇▇ shall post all funds received
to the corresponding invoice and make any appropriate deduction or adjustment in
accordance with the procedures set forth by ▇▇▇ Distributing. ▇▇. ▇▇▇
shall remit to Cox Distributing all cash collected on invoices, to the extent
they are Accounts Receivable of the Fertilizer Distribution
Business.
f. Payment of Trade
Payables. ▇▇. ▇▇▇ shall fund bank accounts from the revenues
of the Fertilizer Distribution Business the proceeds of which shall be used for
the payment of Cox Distributing's obligations relative to the Fertilizer
Distribution Business such as payroll checks and checks for payment of accounts
payable.
g. Email. ▇▇.
▇▇▇ acknowledges and agrees that he shall be obligated to maintain at his own
cost and expense, an email system relative to the operation of the Fertilizer
Distribution Business.
h. Computer
Systems. ▇▇. ▇▇▇ acknowledges and agrees that he will maintain
and operate the computer and information systems currently being utilized by ▇▇▇
Distributing for sales and inventory reporting and tracking, accounts receivable
and general ledger accounting (the “Computer Systems”). ▇▇▇
Distributing shall be permitted access to and use of the Computer Systems in
order to permit Cox Distributing and/or ▇▇. ▇▇▇ on behalf of ▇▇▇ Distributing to
close ▇▇▇ Distributing's books, to record sales transactions, collect accounts
receivables, process customer orders, process purchase orders, maintain
inventory and to maintain ▇▇▇ Distributing's general ledger.
i. Data and Communication
Services. ▇▇. ▇▇▇ shall provide all communication services,
including, but not limited to, maintenance of the data communication lines and
system, telephone system and other like services required for the Fertilizer
Distribution Business.
j. Employee
Benefits. ▇▇. ▇▇▇ will be responsible for the administration
of all existing health and welfare benefit plans offered to ▇▇▇ Distributing
employees, if any.
2. Payments. In
addition to any specific reimbursement or other obligation of ▇▇▇ Distributing
set forth herein, during the term hereof, Cox Distributing shall pay to ▇▇. ▇▇▇
an amount equal to all net revenues of the Fertilizer Distribution Business
after payment of all expenses associated with the operation of such business
including a reserve for payment of future expenses related to the operation of
the business.
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3. Term. ▇▇.
▇▇▇ understands and acknowledges that the term of this Agreement is (i) on an
“at-will” basis, (ii) is for an unspecified duration, and (iii) may be
terminated at any time, with or without cause, and with or without notice, at
▇▇▇ Distributing’s option. In the event of the termination or
expiration of this Agreement, the following provisions shall apply:
a. ▇▇.
▇▇▇ shall cease performing Services and shall submit an invoice for any amounts
which may be due ▇▇. ▇▇▇ under this Agreement as of the date of termination if
there are any funds available from Fertilizer Distribution Business’ operations;
and
b. ▇▇.
▇▇▇ shall deliver to ▇▇▇ Distributing all information related to the operation
of Fertilizer Distribution Business in ▇▇. ▇▇▇’▇ possession or under ▇▇. ▇▇▇’▇
control.
4. Miscellaneous.
a. Assignment. Neither
party shall assign any of its rights or delegate any of its obligations under
this Agreement, without the express prior written consent of the other
party.
b. Amendments. This
Agreement may be amended, modified, or superseded, and any of the terms hereof
may be waived, only by written instrument executed by the parties hereto or in
the case of a waiver, by the party waiving compliance. The failure of
any party at any time to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No
waiver by any party of any term continued in this Agreement shall be deemed or
construed as a further or continuing waiver of any such breach in any subsequent
instance or a waiver of any such breach in any subsequent instance or a waiver
of any breach of any other terms contained in this Agreement.
c. Independent
Contractors. In performing the Services, nothing in this
Agreement shall be construed to create the relationship of employer-employee,
principal-agent or master-servant, either expressed or implied. Further, the
relationship between the Parties is that of contract, ▇▇. ▇▇▇ being an
independent contractor, free from interference or control by ▇▇▇ Distributing in
the performance of the services set forth herein, subject only to the terms of
this Agreement. Neither Cox Distributing nor ▇▇. ▇▇▇ has the authority to bind
or incur any obligation for the other, and each agrees that ▇▇. ▇▇▇ will not
hold itself out to any third party as having, or act toward any third party in
any manner which would suggest that they have, any such authority.
d. Ownership of
Information. ▇▇. ▇▇▇ and ▇▇▇ Distributing agree that all
files, computer programs, tapes, records, materials, data, papers, reports, and
other information relating to the services which were obtained as a result of
its performance of its obligations under this Agreement are vested in and owned
by Cox Distributing. ▇▇. ▇▇▇ agrees to return to ▇▇▇ Distributing all
such property owned by ▇▇▇ Distributing and which is in ▇▇. ▇▇▇’▇ possession
upon termination of this Agreement or at any earlier time immediately upon the
request of ▇▇▇ Distributing. This clause will survive the termination
of this Agreement.
e. Headings. Headings
in this Agreement are for convenience only and shall not be deemed to have any
substantive effect.
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f. Counterparts. This
Agreement may be executed on separate counterparts, each of which will be deemed
an original, which counterparts may be delivered to the other party hereto by
facsimile transmission, and all of which taken together will constitute one and
the same instrument.
f. Severability. If
any term, covenant, condition or provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the provisions hereof shall remain in full force and effect and shall in no way
be affected, impaired or invalidated thereby.
g. Governing
Law. This Agreement shall be governed by, and construed and
interpreted in accordance with the laws of the State of Florida, without regard
to choice of law principles thereof.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.
▇▇▇▇▇▇▇ ▇. ▇▇▇
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇
▇▇▇ Distributing, Inc.
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇
Title:
Chief Executive Officer
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