Exhibit 10.1
SERVICE AGREEMENT
THIS AGREEMENT (the “Agreement”) is made and
entered into this 6th day of September, 2005, by and between
ELITE FINANCIAL COMMUNICATIONS GROUP, LLC, located at 605
Crescent Executive Court, Suite 124, Lake Mary, Florida 32746,
(hereinafter referred to as “ELITE”) and VITACUBE
SYSTEMS HOLDINGS, INC., located at 480 South Holly Street
Denver, Colorado 80246, (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
a)
ELITE will review and analyze
various aspects of the Company’s goals and make
recommendations on feasibility and achievement of desired
goals.
b)
Through its 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.
c)
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.
d)
ELITE will feature the Company on
the Internet via ELITE’s home web site (www.efcg.net) 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.
e)
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.
f)
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 provide monthly clippings of those articles/mentions featuring
the Company.
g)
At the Company’s request,
strive to obtain the Company analyst coverage and/or investment
banking sponsorship.
h)
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.
i)
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.
j)
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.
4)
ELITE’S
COMPENSATION
a)
$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 5% of the outstanding
amount until the payment is received by ELITE.
b)
ELITE would be entitled to receive a
warrant to purchase up to 100,000 common shares of the
Company’s common stock, exercisable as follows:
i)
25,000 shares exercisable at $2.00
per share, which shall vest immediately upon execution of this
Agreement;
ii)
25,000 shares exercisable at $2.00
per share, which shall vest on the 91 st day following
execution of this Agreement;
iii)
25,000 shares exercisable at $4.50
per share, which shall vest on the 181 st day following
execution of this Agreement; and
iv)
25,000 shares exercisable at $6.00
per share, which shall vest on the 271 st day following
execution of this Agreement.
c)
The Company shall agree to issue
ELITE piggyback registration rights for the common shares
underlying the option/warrant listed above (“underlying
shares”), whereby these shares will be registered for resale
by ELITE on the first applicable Registration Statement filed by
the Company with the U.S. Securities & Exchange
Commission. The 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. In the event the Company
elects early termination of this Agreement, as defined in
Section 2 herein, all restricted shares and underlying shares
that have not reached their issue or vesting dates will be deemed
null and void.
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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:
a)
Travel expenses, including but not
limited to transportation, lodging and food expenses, when such
travel is conducted on behalf of the Company.
b)
Seminars, expositions, money and
investment conferences.
c)
Radio and television time and print
media advertising costs, when/if applicable.
d)
Subcontract fees and costs incurred
in preparation of independent third party research reports, when/if
applicable.
e)
Cost of on-site due diligence
meetings, if applicable.
f)
Printing and publication costs of
brochures and marketing materials, which are not supplied by the
Company.
g)
Corporate web site development
costs.
h)
Print
