ADMINISTRATIVE SERVICES AGREEMENT
BY AND BETWEEN
PRE-PAID SOLUTIONS, INC.
AND
PRE-CELL SOLUTIONS, INC.
DATED AS OF SEPTEMBER 1, 1998.
ADMINISTRATIVE SERVICES
THIS ADMINISTRATIVE SERVICES AGREEMENT (THE "AGREEMENT") IS MADE AND
ENTERED INTO AS OF SEPTEMBER 1, 1998 BY and between PRE-PAID SOLUTIONS, INC., a
Florida corporation ("Pre-Paid") and PRE-CELL SOLUTIONS, INC., a Florida
corporation ("Pre-Cell").
WITNESSETH:
WHEREAS, PRE-PAID HAS THE administrative personnel available to assist
Pre-Cell in the conduct of its businesses; and
WHEREAS, Pre-Cell desires to utilize the services and experience of
Pre-Paid in connection with the conduct of their operations; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF ADMINISTRATIVE SERVICES PROVIDER
1.1 APPOINTMENT. Pre-Cell hereby appoints Pre-Paid as its administrative
services provider, and Pre-Paid hereby accepts such appointment by
Pre-Cell to administer its specific business operations and affairs in
accordance with the terms of this Agreement.
1.2 TERM. The term of this Agreement shall begin as of the date hereof and
continue until terminated by written notice from one party to any other
party. Either party to this Agreement may terminate this Agreement by
providing 30 days advanced written notice the other party.
ARTICLE II
POWERS AND DUTIES OF ADMINISTRATIVE SERVICES PROVIDER
2.1 POWERS OF ADMINISTRATIVE SERVICES PROVIDER. Subject to such limitations
as may be imposed by law or this Agreement, Pre-Paid is hereby
authorized to:
(a) provide administrative services and service support for all
operations relating to banking, accounting, legal, financial
controls, corporate tax compliance, tax and regulatory filings
and personnel activities for Pre-Cell, except as specifically
precluded by the terms of this Agreement;
(b) make tax, regulatory and other filings, and to render periodic
and other reports to governmental agencies or bodies having
jurisdiction over the assets or business of Pre-Cell;
(c) open and close all bank accounts, reconcile all accounts of
Pre-Cell, and prepare monthly financial statements of Pre-Cell;
(d) purchase and maintain insurance coverages covering such risks in
such amounts for the benefit of Pre-Cell as Pre-Paid determines
are, from time to time, necessary or appropriate;
(e) conduct litigation and incur legal expenses and, except as set
forth herein, otherwise deal with or settle claims or disputes;
and controversies for and on behalf of Pre-Cell;
(f) take such other action in the ordinary course of Pre-Cell's
businesses not inconsistent with the grant of authority set forth
herein. Pre-Paid shall exercise the authority granted hereunder,
in each case at such times and upon such terms and conditions, as
Pre-Paid deems necessary or appropriate.
2.2 LIMITATION ON POWERS. Notwithstanding the above, without the prior
written authority of the officers or authorized executives of Pre-Cell,
Pre-Paid shall not have the authority or take any action to cause
Pre-Cell to:
(a) sell, lease or otherwise dispose of all or substantially all of
its assets or property;
(b) borrow money, assume, guarantee, or otherwise cause Pre-Cell to
become liable for indebtedness, other than indebtedness to trade
creditors in the ordinary course of business and indebtedness to
Pre-Paid hereunder;
(c) form, contribute or loan cash or property to, any limited or
general partnerships, joint ventures, corporations or similar
arrangements;
(d) expand the business activities in which Pre-Cell is engaged by
acquisition or internal development; or
(e) take any other extraordinary corporate action on behalf of
Pre-Cell.
2.3 DUTIES OF ADMINISTRATIVE SERVICES PROVIDER. Pre-Paid shall manage the
business and affairs of Pre-Cell in the manner in which Pre-Paid deems
necessary or appropriate. Without limiting the generality of the
foregoing, Pre-Paid's duties shall include the following:
(a) to provide, from time to time, executive consultants who will
consult with management of Pre-Cell and Pre-Paid concerning all
aspects of Pre-Cell's business;
(b) to administer the day-to-day business activities of the Pre-Cell
relating to matters concerning personnel, banking, accounting,
legal, financial, corporate tax compliance, tax and regulatory
filings, and such other matters as may be necessary or
appropriate in connection with the day-to-day conduct of
Pre-Cell's Operations;
(c) to render or cause to be rendered accounting, financial controls,
corporate tax compliance, legal, technical, and other services
and perform or cause to be performed other accounting, logistical
and administrative functions for Pre-Cell;
(d) to maintain records of the assets owned by Pre-Cell and books of
account, and to make such records and books of account available
for inspection by the Board of Directors of Pre-Cell during
regular business hours at the principal office of Pre-Cell;
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(e) to prepare, on an annual, quarterly and monthly basis, financial
statements of Pre-Cell and to furnish to the officers, directors
or authorized executives of Pre-Cell such other information and
reports concerning the conduct of the business and affairs of
Pre-Cell as the officers, directors or authorized executives
shall reasonably request;
(f) to render such reports and make such periodic and other filings
as may be required under applicable federal, state and local
laws, rules and regulations; and
(g) to conduct the operations of Pre-Cell in compliance with all
applicable laws, rules and regulations and in accordance with the
terms of this Agreement, and any other applicable agreement,
indenture or other instrument to which Pre-Cell is bound or may
be subject.
2.4 ACTIVITIES. Pre-Cell hereby acknowledges that Pre-Paid has, and shall
be entitled to continue to have, business interests, and engage in
business activities, in addition to those relating to the operations of
Pre-Cell. Pre-Cell further acknowledges and agrees that during and
subsequent to the term hereof, Pre-Paid shall be entitled to have
business interests and conduct business activities which may be in
direct competition with Pre-Cell for its own account and for the
account of others, without having or incurring any obligation to offer
any interest in such businesses, activities or opportunities to
Pre-Cell. Pre-Cell shall not have any rights by virtue of this
Agreement or the relationship created hereby in any such business
interests, activities or opportunities.
ARTICLE III
REIMBURSEMENT; PURCHASES FROM PRE-CELL
3.1 COMPENSATION. In consideration of the performance of the duties set
forth herein, Pre-Cell shall pay to Pre-Paid an administrative service
fee equal to One Thousand Dollars ($1,000) per month. The
administrative service fee shall include all indirect expenses
associated with Pre-Paid's provision of administrative services,
including, without limitation, wages, employee benefits, general and
administrative expenses. Pre-Cell shall pay the administrative service
fee to Pre-Paid, in arrears, no later than the 10th day of each month
during the term of this Agreement.
3.2 DIRECT EXPENSES. Pre-Cell shall reimburse Pre-Paid for all direct
expenses incurred by Pre-Paid on behalf of Pre-Cell in connection with
Pre-Cell's operations under this Agreement. Pre-Cell shall reimburse
Pre-Paid such amounts within 10 days after request from Pre-Paid.
Pre-Cell acknowledges and agrees that Pre-Paid may mark-up the cost of
such products, equipment and other items provided that the prices
charged are competitive with prices Pre-Cell could obtain such products
and equipment from third party vendors.
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ARTICLE IV
LIABILITY OF PRE-PAID; INDEMNIFICATION
4.1 JUDGMENTS IN GOOD FAITH PROPER. Notwithstanding any other provisions
contained herein to the contrary, in no event shall Pre-Cell, nor any
director, officer, employee or shareholder of Pre-Cell make any claim
against Pre-Paid on account of any alleged errors of judgment made in
good faith in connection with the conduct of Pre-Cell's operations
hereunder by Pre-Paid, nor shall Pre-Cell object to any expenditure
made by Pre-Paid in good faith in the course of its or Pre-Cell'
operations or in the settlement of any claim, arising out of the
conduct of Pre-Cell' operations.
4.2 INDEMNIFICATION. Pre-Cell agrees to indemnify and hold harmless
Pre-Paid and its employees, officers, directors, agents and
shareholders (the "Indemnitees") from and against any and all
liabilities, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' and accountants' fees and costs),
deficiencies, judgments, actions, causes of action, proceedings,
demands or claims of whatever nature (collectively, "Damages") arising
from or in any way related to (i) services provided by Pre-Paid
pursuant to this Agreement, or (ii) any accident, injury or damage
whatsoever during the conduct of operations caused to any person or to
the property of any person, occurring on or after the date hereof and
prior to the termination of this Agreement, except to the extent such
Damages are caused by or result from the gross negligence of, or any
willful misconduct or reckless act by Pre-Paid, or its employees,
officers, directors, agents or shareholders. The termination of a
proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that an action or of inaction involves bad faith or willful
misconduct or a reckless act.
4.3 LIMITATION LIABILITY. PRE-PAID SHALL NOT BE LIABLE TO PRE-CELL NOR ANY
PERSON OR ORGANIZATION FOR ANY DEBT, LIABILITY OR OBLIGATION OF
PRE-CELL INCURRED OR CREATED PURSUANT TO THE AUTHORITY GRANTED IN THIS
AGREEMENT OR BY REASON OF ITS DIRECTION OR THE CONDUCT OF PRE-CELL'S
OPERATIONS UNLESS PRE-PAID, BY WRITTEN AGREEMENT, EXPRESSLY ASSUMES OR
GUARANTEES ANY SUCH LIABILITY. PRE-PAID SHALL NOT BE REQUIRED, UNDER
ANY CIRCUMSTANCES, TO GUARANTEE OR ASSUME ANY OBLIGATION OR LIABILITY
OF PRE-CELL. THE BOARD OF DIRECTORS OF PRE-CELL SHALL BE DEEMED TO
CONTROL ALL ASPECTS OF THE MANNER IN WHICH PRE-CELL'S BUSINESS IS
CONDUCTED. PRE-PAID SHALL NOT BE LIABLE, BY VIRTUE OF THE PERFORMANCE
OF ITS DUTIES HEREUNDER, FOR ANY BREACH OF ANY LICENSING OR OTHER
AGREEMENT BETWEEN THE COMPANIES AND ANY OTHER PARTY, OR FOR ANY
LIABILITY FOR ANY TRADEMARK INFRINGEMENT, UNFAIR COMPETITION, PATENT
INFRINGEMENT OR OTHER VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF
ANOTHER PERSON OR ENTITY AS A RESULT OF THE MANNER IN WHICH PRE-CELL'S
BUSINESS IS CONDUCTED, EXCEPT TO THE EXTENT SUCH VIOLATION IS THE
RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PRE-PAID.
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ARTICLE V
MISCELLANEOUS
5.1 INDEPENDENT CONTRACTOR. Nothing herein shall be construed or deemed to
create a joint venture, contract of employment or partnership. All
debts and liabilities to and contracts or agreements with any person or
entity incurred or entered into by Pre-Cell in the operation or conduct
of Pre-Cell's business shall be the debt and liability of Pre-Cell, and
be binding upon, Pre-Cell.
5.2 NOTICES. Any notice, request, consent or communication (collectively a
"Notice") under this Agreement shall be effective only if it is in
writing and (a) personally delivered, (b) sent by a nationally
recognized overnight delivery service, with delivery confirmed, or (d)
telexed or telecopied, with receipt confirmed, addressed to the
addresses indicated on the signature page of this Agreement or to such
other address or addresses as shall be furnished in writing by any
party to the other party. A Notice shall be deemed to have been given
as of the date when (i) personally delivered, (ii) the next day when
delivered during business hours to said overnight delivery service,
properly addressed and prior to such delivery service's cutoff time for
next day delivery, or (iii) when receipt of the telex or telecopy is
confirmed, as the case may be, unless the sending party has actual
knowledge that a Notice was not received by the intended recipient.
5.3 ASSIGNMENT. Either party hereto shall have the right to assign this
Agreement only to (i) any successor assignee of such party that may
result from any merger, consolidation or reorganization, or (ii)
another corporation that acquires all or substantially all of such
party's assets, business and liabilities.
5.4 HEADINGS. Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.5 ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the complete
expression of the agreement between the parties and there are no
promises, representations, or inducements except as herein provided.
The terms and provisions of this Agreement may not be modified,
supplemented or amended except in writing signed by both parties
hereto. All terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and permitted assigns of the parties hereto.
5.6 NO WAIVER. Failure by either party hereto to enforce at any time or for
any period of time any provision or right hereunder shall not
constitute a waiver of such provision or of the right of such party
thereafter to enforce each and every such provision.
5.7 GOVERNING LAW; ATTORNEYS' FEES. This Agreement shall be governed by and
construed and enforced in accordance with the laws of Florida. The
prevailing party in any litigation concerning this Agreement shall be
entitled to reimbursement of its reasonable costs, including legal and
accounting fees, incurred in connection with any such matter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
PRE-PAID SOLUTIONS, INC.
BY: /s/ Thomas E. Biddix
----------------------------
NAME: Thomas E. Biddix
TITLE: CEO
PRE-CELL SOLUTIONS, INC.
BY: /s/ Timothy F. McWilliams
----------------------------
NAME: Timothy F. McWilliams
TITLE: COO
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