EXHIBIT
10.2
SUPPLY OF SERVICES
AGREEMENT
THIS SUPPLY
OF SERVICES AGREEMENT (the “ Agreement ”) is
entered into with effect from 1 st July
2009 the “ Effective Date ”, between Flex Fuels
Energy, Inc a Nevada corporation c/o Office of CSC Services of
Nevada Inc, Resident Agent for Flex Fuels Energy Inc, 502 E John
Street, Carson City, Nevada, 89706, USA (the “ Company
”), and Thomas Barr, of 46 Chobham Road, Ottershaw, Surrey
KT16 0NN, United Kingdom, whereby Thomas Barr (“the
Contractor”) agrees to provide certain services (“the
Services”) to the Company. The Parties to this Agreement are
the Company and Thomas Barr.
NOW, THEREFORE , in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and
for other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
: Definitions and
Interpretations
For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise
requires, the following terms shall have the following respective
meanings:
“ Base Fee ” shall have the
meaning specified in Section 3.1.
“ Board of Directors ” shall
mean the Board of Directors of the Company.
“ Cause ” shall have the
meaning specified in Section 4.3.
“ Company ” will also include
its subsidiaries, parents and affiliates where it is reasonably
logical the use of the word would include such other entities, and
include any successor to its business and/or substantially all its
assets which executes and delivers the Agreement as provided for in
Section 7.4 or which otherwise becomes bound by all terms and
provisions of this Agreement by operation of law.
“ Confidential Information ”
shall have the meaning specified in Section 5.1(a).
“ Disability ” shall mean a
physical or mental condition of one of the Contractors that, in the
good faith judgment of not less than a majority of the Board of
Directors, prevents that individual from being able to perform the
services required under this Agreement. If any dispute arises as to
whether a Disability has occurred, or whether a Disability has
ceased and the Contractor is able to resume duties, then such
dispute shall be referred to a licensed physician mutually agreed
upon by the Contractor and the Company, which physician will not be
any of the Contractor’s regular physicians. The
Contractor shall submit to such examinations and provide
information as such physician may request and the determination of
such physician as to the Contractor's physical or mental condition
shall be binding and conclusive on the parties. The
Company shall pay the cost of any such physician and
examination.
“ Dispute ” shall have the
meaning specified in Article VI.
“ Exchange Act ” shall
mean the Securities Exchange Act of 1934, as amended.
“ Expiration Date ” shall
have the meaning specified in Section 2.2.
“ Notice of Termination ”
shall mean a notice purporting to terminate this Agreement in
accordance with Section 4.1, 4.2 or 4.3.
“ Person ” shall mean and
include an individual, a Partnership, a joint venture, a
corporation, a trust and an unincorporated organization.
“ Incentive Fee ” shall have
the meaning specified in Section 3.2.
“ Term ” shall have the
meaning specified in Section 2.2.
“ Termination Date ” shall
mean the termination date specified in a Notice of Termination
delivered in accordance with this Agreement.
(a) In this Agreement,
unless a clear contrary intention appears, (i) the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision, (ii) reference to any Article or
Section, means such Article or Section hereof, (iii) the words
“including” (and with correlative meaning
“include”) means including, without limiting the
generality of any description preceding such term, and (iv) where
any provision of this Agreement refers to action to be taken by
either party, or which such party is prohibited from taking, such
provision shall be applicable whether such action is taken directly
or indirectly by such party.
(b) For the avoidance
of doubt this Agreement refers to the provision of certain services
to be provided by the Contractor.
(c) The Article and
Section headings herein are for convenience only and shall not
affect the construction hereof.
(d) For the avoidance
of doubt it is specifically agreed between the Parties that nothing
in this agreement shall be construed as inferring any employment
rights and obligations between the Company and/or any of its
subsidiaries and associates and the Contractor and, as a result,
the Company shall have no obligation or right to make any
withholding tax deductions, unless required to do so by law. The
Contractor warrants and represents to The Company that it shall be
solely responsible for any income, social security or other
taxation liabilities that are payable on the compensation referred
to herein. The Company agrees that it or any subsidiary that
benefits from the service provided by Contractor will pay VAT, if
any, that is payable or is subsequently deemed to be payable on
invoices raised by the Contractor, even if such VAT is not
initially included in invoices by virtue of the Parties
understanding that the service provided are not subject to VAT
because they are effectively exported and therefore believes to be
zero rated.
ARTICLE
II
: Services, Compensation
etc.
The Company agrees to contract with the
Contractor to provide the Services of the Contractor as further
described herein and the Contractor agrees to provide such
services.
Unless sooner terminated pursuant to Article IV,
the term of this Agreement (the “ Term ”) shall
end on 30 th
June, 2010, subject to extension as
herein provided. The Term will be automatically extended
by an additional twelve (12) months unless one party gives written
notice to the other at least 6 months before the then effective
Expiration Date indicating that the party does not extend Term of
the Agreement. If the Term is extended, then the
Expiration Date will be automatically extended by a corresponding
twelve (12) months. The right not to extend the Term and
corresponding Expiration Date is separate from the right to give a
Notice of Termination herein.
(a) During the Term of
the Agreement, the Contractor shall provide such professional and
related services as are commensurate with the position of Chief
Executive Officer and to include but not be limited to the
development and execution if the Company plan, financing activities
and market communications. In addition, the Contractor
shall agree that the Contractor shall accept appointment as a
director and/or officer of the Company and its subsidiaries, as
shall be agreed from time to time with the Company, and, as such,
the Contractor shall have the responsibilities and authorities
designated to him by the bylaws of the Company, if stated therein,
and the Board of Directors.
(b) During the Term of
the Agreement, the Contractor shall (i) report to the Board of
Directors and (ii) observe and comply with all lawful policies,
directions and instructions of the Board of Directors and the
Company that are consistent with the provisions of this paragraph
2.3.
(c) During the Term of
the Agreement, the Contractor shall (i) devote his business time,
attention, skill and efforts to the faithful and efficient
performance of the provision of the Services as is reasonably
required, subject always to a maximum average time commitment by
the Contractor of 5 days a week for 46 weeks in any one year (the
“Time Commitment”) .
(d) The Company
acknowledges that the Contractor may occasionally have other
clients and that the Contractor may have other commitments which he
needs to attend to. The Contractor agrees as follows: (i) that his
obligations to provide service to the Company shall take priority
to other commitments and (ii) to not accept any other client that
may create a conflict with services to be provided to the Company
and (iii) to take reasonable steps to resign his role in relation
to any client that may come into conflict with the Company, the
Company acknowledges and accepts that the Contractor’s
existing directorships and relationships as disclosed in Schedule 1
(“Disclosed Relationships”) to this agreement do not
represent an employment conflict and (iv) to accept the decision of
the Board of Directors of the Company as to whether a conflict
situation exists and to draw any client situation to the attention
of the Board of Directors if the Contractor believes that a
conflict does or may arise.
(e) During the
currency of this Agreement, the Contractor shall not knowingly
prejudice, in any material respect, the reputation of the Company
in the fields of business in which it is engaged or with the
investment community or the public at large.
(f) If elected or
appointed thereto, and only for the duration of such elected term
or appointment, the Contractor shall, as an integral part of and to
facilitate the provision of the Services referred to herein, serve
as a director and/or officer of the Company and any of its
subsidiaries and/or in one or more executive positions of any of
such subsidiaries, provided that the Contractor is indemnified for
serving in any and all such capacities on a basis consistent with
that provided by the Company to other directors and executive
officers of the Company or similarly situated executive officers of
any such subsidiaries.
(g) The Contractor
represents that there are no restrictions imposed upon him by any
covenants or agreements arising out of any prior engagement which
materially affect his ability to provide the services set forth in
this Agreement. The Contractor agrees to indemnify and hold the
Company harmless for any judgment and related costs, including
attorney’s fees, which may be entered against the Company as
a result of a breach of any such covenants or violation of any such
restrictions, and agrees that any such breach or violation shall
qualify for “Cause” termination pursuant to Section 4.3
below.
ARTICLE
III
: Fees and
Expenses
(a) For services
rendered by the Contractor under this Agreement, the Company shall
pay to the Contractor a base monthly fee of £7,916 to be paid
at the end of each month in GBP to a bank account nominated by the
Contractor and maintained in his name. The amount is exclusive of
any VAT that is or may be payable.
(b) The Contractor
shall be granted such stock warrants as the Company shall for time
to time agree to grant as further consideration for the Services
and to provide incentive.
(c) The Contractor
shall be entitled to participate in any bonus scheme arrangements
that the Company deems as appropriate to incentivize and reward
exceptional efforts by the Contractor in carrying out his
services.
During the Term, the Parties may agree from time
to time to modify this Agreement so as to engage the Contractor to
provide services over and above those set out in this Agreement
and/or to provide incentive to the Contractor to add exceptional
value such as by virtue of his corporate finance / M&A know-how
and expertise and / or network.
The Company accepts that the Contractor may from
time to time take vacation from his full time client commitments to
the Company (Period of Absence). During such periods the Contractor
shall ensure that adequate base coverage is provided by the
Contractor so as not to prejudice the quality of the overall
service. On no account shall the Contractor take a Period of
Absence other than in accordance with the following: (a) it shall
be within the overall average annual Time Commitment calculation;
(b) it shall only exceed 14 consecutive business days with the
prior agreement of the Board of the Company, which shall not be
unreasonably denied.
3.4 Expense
Reimbursement
The Company
shall reimburse the Contractor for all reasonable travel and other
business expenses incurred by its Contractors in the performance of
the Services. Such expenses shall be submitted monthly in arrears
and the Contractor shall retain and make available for inspection
all supporting vouchers for the duration of the Agreement. Expense
reimbursements shall be made in line with the principles set out in
the Companies policies that apply to its employees as modified by
agreement from time to time made in writing between the
Parties.
4.1 Termination by
the Contractor
The Contractor may, at any time prior to the
Expiration Date, terminate the provision of the Agreement for any
reason by delivering a Notice of Termination to the Board of
Directors. The Notice of Termination shall be effective
not less than three months after the date of the notice and state
the effective Termination Date and if none is specified then the
Termination Date will be three months after the date of the Notice
of Termination. The Termination Date under this
provision may be beyond the Expiration Date.
