ENGAGEMENT AGREEMENT
THIS AGREEMENT is made this 29TH day of NOVEMBER, 2004 between ACS HOLDINGS,
INC., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, hereinafter known as
"Client" and KMA Capital Partners, Ltd., hereinafter known as "Advisor".
WHEREAS, Client desires to retain Advisor under the terms and conditions set
forth herein to provide various advisory services to Client and Advisor desires
to provide those services to Client.
NOW THEREFORE, in consideration of the mutual terms and conditions contained
herein, the parties hereto agree as follows:
1. Advisory Services to be Provided
Client hereby retains Advisor to consult with and advise Client regarding its
business, business plan and contemplated business operations and, in particular,
to provide those services set forth on the attached Exhibit A. Advisor shall
advise the Client using its best efforts and shall assist the Client in
preparing any materials that may be required in conjunction with any services
provided.
Advisor has the right to refuse to perform any other services for Client other
than those specifically set forth herein.
If required, Advisor will assist the Client in obtaining the services of any
engineers, appraisers, attorneys, accountants or other professionals. The Client
understands that any fee arrangements between the Client and such professionals
shall be entered into between the Client and the professionals. Advisor shall
not be responsible for the payment of those fees nor are those fees included in
the fees payable to Advisor hereunder.
Client acknowledges that the employees of Advisor are not necessarily licensed
attorneys or certified public accountants and, therefore, may not be authorized
to provide legal or accounting advice.
Advisor will determine the method, details, and means of performing those
services requested in Exhibit A.
Advisor may, at the Advisors' own expense, employ such assistants as Advisor
deems necessary to perform the services required of Advisor by this Agreement.
Advisor assumes full and sole responsibility for the payment of all compensation
and expenses of these assistants and for all state and federal withholding taxes
which may be applicable.
Advisor shall perform the services required by this Agreement at any place or
location, and at such times, as Advisor shall determine. Advisor will supply all
equipment and supplies required to perform the services under this Agreement.
Advisor is not obliged to purchase or rent any equipment, supplies or services
from the Client.
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2. Independent Contractor Status of Advisor
It is the express intention of the parties that in providing its services to the
Client hereunder, Advisor is acting as an independent contractor and not as
employee, agent, joint venture or partner of the Client. Nothing in this
Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between Client and Advisor or any employee
or agent of Advisor. This Agreement is not exclusive. Advisor shall retain the
right to perform services for other clients during the term of this Agreement.
Advisor has no authority to bind or speak for the Client except as may be
specifically requested and authorized in writing by the Client.
Because Advisor is not an employee of Client, Advisor shall be responsible for
and shall fully discharge all federal, state and local taxes that may be due
with respect to any payments made by Client to Advisor hereunder. Client will
not withhold any taxes or unemployment or worker's compensation insurance
contributions from Advisor's payments. All American clients shall be responsible
for preparing and filing Form 1099 and other documents required by US Federal or
State tax agencies as a consequence of payments made to Advisor.
3. Compensation to be paid to Advisor
In consideration of the services performed by Advisor as shown in Exhibit A, the
Client agrees to pay Advisor the fees and payments specified in Exhibit B and
any expenses listed in Section 4. Advisor shall submit invoices for all services
rendered to the Client on a twice-monthly basis. The Client agrees to pay
Advisor's invoices within 7 days of receipt, except as may be specified in
Exhibit B. Any invoices not paid in full when due will bear interest at the rate
of 15% per annum.
4. Payment of Advisor's Expenses
Client shall be responsible for all costs and expenses incidental to the
performance of services for the Client, as set forth in Exhibit A, each attached
hereto, including but not limited to, printing, postage, all costs of necessary
equipment incurred by Advisor, all fees, fines, licenses, bonds or taxes
required of or imposed against Advisor, any authorized travel and all other of
Advisor's costs of doing business.
The Client shall not be responsible for any expenses incurred by Advisor in
performing services for Client with exception of such expenses as are agreed to
by the Client, in advance.
Advisor does not accept responsibility for the payment of any refundable or
non-refundable deposits or prepayment that may be requested by any other service
providers.
5. Indemnification By Advisor
Advisor shall indemnify and hold the Client harmless against any and all
liability imposed or claimed, including attorney's fees and other legal
expenses, arising directly or indirectly from any act or failure of Advisor and
Advisor's assistants, employees or person or damage to any property.
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6. Cooperation to be Provided by Client
The Client agrees to comply with all reasonable requests of Advisor (and provide
access to all related and respected documents) necessary for the performance of
Advisor's duties under this Agreement. Accordingly, the Client agrees, at its
expense, to furnish any authentication, information, documents, certificates,
evidence, title insurance, plans and specifications, financial statements,
projections, appraisals, mortgage insurance, or any other information that
Advisor, or any financing source located by Advisor may require in connection
with this Agreement or the services contemplated hereby. The Client understands
that without full cooperation of the Client, its agents and or assigns, Client
will prevent Advisor from performing in full accordance with this Agreement.
7. Advisor's Reliance Upon Information Provided by Client
The Client affirms that all assertions, statements and representations to be
made or furnished to Advisor hereunder will be true and will be made with intent
and purpose of influencing Advisor to act in accordance with the terms of this
Agreement and to induce financing sources located by Advisor to provide
financing to the Client. It is further understood that Advisor is under no
obligation to verify any matter submitted to Advisor by the Client, and the
truth or veracity of any such matter submitted by Advisor to prospective
financing sources shall be the sole responsibility of the Client. The Client
also agrees to hold Advisor, its officers, directors, employees and agents
harmless from and against any, every and all claims which may hereinafter be
made or asserted against Advisor, its officers, directors, employees or agents
arising out of or resulting from any misrepresentations or omissions of facts by
the Client, its agents or assigns to Advisor or whomsoever. The Client also
agrees to promptly reimburse Advisor for all expenses incurred by Advisor as the
result or any false, incomplete or misleading information provided by the Client
or its agent to Advisor hereunder.
8. Conflicts and Confidentiality
It is understood that this Agreement is not exclusive and that Advisor provides
similar services to other clients. It is agreed, however, that Advisor shall not
provide similar services to any other client that can reasonably be viewed as
conflicting in a direct and material way with Advisor's obligations to the
Client.
Advisor agrees that it shall treat any and all information received from Client
as confidential and shall not release such information nor communicate it to any
third party without the prior permission of Client. Client also agrees to treat
the relationship with Advisor and this Agreement as confidential and not to
disclose it to any third party without the prior permission of Advisor unless
such disclosure is required to be made pursuant to the regulations of a
government agency or a Court of Law.
9. Confidential Information of Advisor
The Client hereby agrees and acknowledges that Advisor's sources and contracts
are the foundation of Advisor's financial services. The Client fully agrees not
to discuss or disclose the identity of any of Advisor's sources to any person
and agrees not to communicate with those sources for any reason whatsoever,
without Advisor's prior agreement. Furthermore, the Client agrees that its
employees, agents or Advisors will not deal with any sources or agents
introduced to Client by Advisor without using Advisor as their intermediary.
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In addition, the Client agrees to contact or transact business with sources
referred to Client by Advisor only with the prior knowledge and consent of
Advisor. This provision shall apply for each and every such contract or
transaction within a period of three (3) years from the date hereof, unless
released by Advisor. The Client shall make this Agreement a part of any request
submitted as a result of Advisor's advice and referral. Any such resultant
services shall not be consummated unless and until the fee to be paid to Advisor
is allocated for payment to Advisor.
10. Equitable Relief
Because Advisor does not have an adequate remedy at law to protect its interest
in its confidential information as described in Sections 8 and 9, including but
not limited to, lists of sources of funds or clients, trade secrets, privileged,
proprietary or confidential information and similar commercial assets, Advisor
shall be entitled to injunctive relief, in addition to such other remedies and
relief that would, in the event of a breach of this Agreement, be available to
Advisor. In the event of such a breach, in addition to any other remedies,
Advisor shall be entitled to receive from Client payment of, or reimbursement
for, its reasonable attorneys' fees and disbursements incurred in enforcing and
such provision.
11. Term
This Agreement will continue in effect until 29 November 2005, unless earlier
terminated in accordance with the provisions of Section 12 of this Agreement.
Sections 3, 4, 8 and 9 shall survive the termination of this Agreement.
12. Termination
This Agreement shall terminate automatically on the occurrence of any of the
following events;
bankruptcy or insolvency of either party;
sale of the business of either party; or
death of either party.
Should either party breach any of the material provisions of this Agreement,
which breach shall not be cured within ten days after notice of that breach
given by the other party, the non-breaching party may terminate this Agreement
by giving written notification of termination to the breaching party.
Should Client fail to pay Advisor all or any part of the compensation set forth
in Section 3 of this Agreement on the date due, Advisor, at the Advisor's
option, may terminate this Agreement if the failure is not remedied by Client
within 10 days from the payment due date.
13. Standard Terms, Conditions and Exhibits
The Parties agree that Exhibit C attached hereto on Standard Terms and
Conditions are deemed part of this Agreement for all purposes as though fully
set forth herein. Further, the Parties agree and acknowledge that any other
Exhibits or Schedules that are made a part of this Agreement or provided in
connections with this Agreement are deemed to be a part of this Agreement for
all purposes.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
WITNESS:
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KMA CAPITAL PARTNERS, LTD.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
General Partner
Its Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ IV
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Company: ACS Holdings, Inc.
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By: ▇▇▇▇▇ ▇▇▇▇▇
Its: Interim CEO
Its Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ph: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
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Exhibit A
Initial Specific Services to be Provided by Advisor (indicated by "X"):
__X__ 1. Strategic Planning Advisory Services
Advisor will provide strategy planning services for corporate
development of ACS Holdings, Inc. These services will include: a
general evaluation of the business, its business plan, financials and
proformas; consulting with client to help determine ultimate objectives
and environmental constraints; structure, schedule and conduct strategy
planning conference; proposing specific means of achieving objectives;
other related services Advisor determines are necessary to effect a
successful transaction; and consolidate results in an overall company
strategic management document.
Available Upon Request:
Crisis Management
__X__ 2. Financing Advisory Services
Advisor will provide financial advisory services to structure financing
for ACS Holdings, Inc. These services will include: document
preparation, including revision of any existing/in use private
placement documents (if necessary); providing support in due diligence
preparation and disclosure; targeting, conferencing with and
introduction of underwriter(s) and negotiation of terms of engagement
for financing; and other related services Advisor determines are
necessary to effect a successful transaction.
Available Upon Request:
Commercial Real Estate
Purchase Order Financing
Receivables Factoring
Equipment Leasing
Corporate Workout
__X__ 3. Mergers and Acquisitions Advisory Services
Advisor will conduct comprehensive search for join venture, merger, or
acquisition targets or prospective buyers for liquidation of specific
businesses of ACS Holdings, Inc. These services will include:
identification of acquisition criteria and a preliminary review target
companies or prospective buyers; advising client with regard to most
suitable targets and/or buyers; pursuit of selected candidates to
determine probability and type of transaction that may be concluded;
conduct negotiations to conclusion; and other related services Advisor
determines are necessary to effect a successful transaction.
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4. Financial Media and Publication Services (Media products are
provided in conjunction with the above listed services.)
Advisor will prepare and distribute financial media and publications
identifying and portraying ACS Holdings, Inc.
_N/A_ a) Postcard Brief: 4.25x5.5 postcard including brief company
profile including ticker symbol, contact information and
website (if available). (Lead time for the direct mail pieces
is no less than two (2) weeks.)
Duration -
Quantity -
_N/A_ b) Investor Fact Sheet/Company Newsletter: An 8.5x11 document
giving the generic basics on the client company. It does not
include analyst opinion or valuation. This item may be
e-mailed, faxed, or mailed in a #10 envelope or via
self-mailer. (Lead time for the direct mail pieces is no less
than two (2) weeks.)
Duration -
Format -
Quantity -
_N/A_ c) Corporate Report: Two page 8.5x11 document including
company highlights, stock information and performance, plus an
analyst's opinion. This item may be mailed in a #10 envelope
or via self-mailer. (Lead time for the direct mail pieces is
no less than two (2) weeks.)
_N/A_ d) CEO/CFO Interview: A set of 15 - 20 questions which the CEO
or CFO of a featured company answers edited into the form of a
media/publicity document highlighting the company, its status,
and initiatives planned and underway. This item, typically
accompanying either the Investor Fact Sheet/Company Newsletter
or Corporate Report may be mailed in a #10 envelope or via
self-mailer. (Lead time for the direct mail pieces is no less
than two (2) weeks.)
_N/A_ e) Sector Report (Available Upon Request ONLY per individual
quote; billed separately): A two to four page 8.5x11
compilation of research reports produces on the top 24 or so
corporation in a particular sector. It is done in black and
white on slick paper. It is used as a basis of comparison for
other clients/prospects on which we are doing reports.
[This section continued on following page.]
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FINANCIAL MEDIA AND PUBLICATION SERVICE REQUIREMENTS
ACS HOLDINGS, INC., or its agent, has completed, as required, the
attached checklist before a final proposal will be executed.
In utilizing our services, ACS HOLDINGS, INC will need to maintain
consistent press releases throughout the duration of the media
distribution. ACS HOLDINGS, INC will be required to provide KMA Capital
Partners, Ltd. will the nature of these releases before they are
issued.
ACS HOLDINGS, INC will be required to make a website available to the
financial community to coincide with the distribution of media. At a
minimum, the site should contain the following: company description,
company contact, company location, company phone number, company e-mail
address.
_N/A_ 5. Technology Review: Available Upon Request per individual quote (billed
separately).
_N/A_ 6. Website Development: Available Upon Request per individual quote
(billed separately).
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Exhibit B
Engagement Fees:
All engagement fees to KMA CAPITAL PARTNERS, LTD. for services to be
rendered, as specified in Exhibit A.
Strategic Planning, Financing and Mergers and Acquisitions
For financing and merger and acquisition services, Client
shall pay:
$125,000 per month in cash or 144 (Restricted) stock*
(ACSJ).
All stock shall be transferred to an account designated by KMA
Capital Partners, Ltd.
SEE SUCCESS FEES BELOW.
Financial Media and Publications
KMA Capital Partners, Ltd. requires that all clients prepay
these services. Clients may chose to prepay fees in cash, cash
and free trading common stock*, or all free trading common
stock*.
Cash payments shall be in the form of a wire transfer to an
account designated by KMA Capital Partners, Ltd. Account
information will be available upon the execution of this
Agreement.
All free trading common stock shall be transferred to an
account designated by KMA Capital Partners, Ltd. Account
information will be available upon the execution of this
Agreement.
The total cost of services checked in Exhibit A are $_N/A_ per
month.
Liquidity may be a factor in stock transactions. KMA Capital Partners,
Ltd. reserves the right to adjust the number of shares issued for
services.
Success Fees:
1. In lieu of ENGAGEMENT FEES normally charged for services involving
raising capital, acquiring companies or assets, merging with other
businesses, selling businesses or similar transactions, the client
shall reward KMA Capital Partners, Ltd. the following:
a. 3% finder's fee on any capital raised; and
b. 3% on any acquisitions negotiated and closed by KMA Capital
Partners, Ltd. Said 3% to be paid in cash or free trading
stock.
2. For services to be rendered in accordance with this Engagement
Agreement with ACS HOLDINGS, INC., KMA Capital Partners, Ltd. also
requires the following:
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a. Options/Warrants - 1) 500,000 @ $.125 $62,500
2) 500,000 @ $.250 $125,000
3) 1,000,000 @ $.375 $375,000
4) 1,500,000 @ $.500 $750,000
5) 1,500,000 @ $.75 $1,125,000
----------
$2,437,500
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Exhibit C
Standard Terms and Conditions
Time. Time is of the essence in this Agreement and the transactions contemplated
by it.
Good faith and fair dealing. The parties agree this Agreement imposes an implied
duty of good faith and fair dealing on all the respective obligations of the
Parties.
Headings. The headings of Articles and paragraphs contained in this Agreement
are for convenience of reference only and shall not be considered in construing
this Agreement.
Modification and Waiver. This Agreement constitutes the entire Agreement between
the Parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
Parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all of the Parties. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver constitute
a continuing waiver. No waiver shall be binding unless executed in writing by
the party making the waiver.
Counterparts & Facsimile. This Agreement and Exhibit may be executed
simultaneously in one or more counter-parts or by facsimile, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Rights of Parties. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the Parties to it and their respective heirs, legal
representatives, successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons not a party to this Agreement, nor shall any provision give any such
third persons any right of subrogation or action over against any party to this
Agreement.
Assignment. The Parties shall not assign or transfer their respective
obligations under this Agreement. This Agreement shall be binding on, and shall
inure to the benefit of, the Parties to it and their respective heirs, legal
representatives, successors and permitted assigns, and any of their respective
companies, subsidiaries, entities, agents, associates, partners, directors,
officers, employees, and representatives.
Severability. To the extent any provision of this Agreement shall be determined
by a court of competent jurisdiction to be invalid or unenforceable, such
provision shall be deleted from this Agreement, and the validity and
enforceability of the remainder of such provision and of this Agreement shall be
unaffected.
Attorneys' Fees. If legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of any alleged
dispute, breach, default, or misrepresentation, in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorney's fees and other costs
incurred, including expert witness fees, in that action or proceeding, in
addition to any other relief to which it or they may be entitled.
Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Florida without regard to its principles of
conflicts of laws.
Force Majeure. No party to this Agreement shall be responsible to the other
party for nonperformance or delay in performance of the terms or conditions of
this Agreement due to acts of God, acts of governments, war, riots, strikes,
accidents in transportation, or other causes beyond the reasonable control of
such party.
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Authority. Both Parties acknowledge that by execution of this Agreement they
have the right, power, legal capacity, and authority to enter into, and perform
their respective obligations under this Agreement, and no approvals or consents
of any persons other than the Parties are necessary in connection with this
Agreement. The execution and delivery of this Agreement has been individually
consented to in writing by all the disclosed individuals of each Party.
No Conflict with Prior Agreements. Both Parties acknowledge, warrant and agree
that the execution of this Agreement, the consummation of the transactions
contemplated herein, and compliance with the terms of this Agreement, do not and
will not, conflict with, or constitute a default under any indenture, mortgage,
deed of trust or other agreement (oral or written) or instrument to which the
Parties are now a party, or the articles, (and any amendments thereto) or bylaws
of Parties, or any law, order, rule or regulations, injunction, or decree or any
government agency or court, domestic or foreign, having jurisdiction over the
Parties or their respective businesses or properties.
Entire Agreement. This Agreement supersedes any and all agreements, either oral
or written, between the parties hereto with respect to the rendering of services
by Advisor to the Client and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to the Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any parties, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
Agreement shall be valid or binding. Any modification of this Agreement will be
effective only if it is in writing and signed by both parties.
Notices. Any notices to be given hereunder by either party to the other may be
effected either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addresses set forth below, but each party may
change the address by written notice in accordance with this Section. Notice
delivered personally will be deemed communicated as of actual receipt; mailed
notices will be deemed communicated as of three days after mailing.
If to: KMA CAPITAL PARTNERS, LTD.
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Partner
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ IV
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to: ACS Holdings, Inc.
-
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President/CEO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
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