CONSULTING SERVICES AGREEMENT
Exhibit
99.1
This
Agreement (the Agreement), dated as of the
2nd
day of May, 2008
BETWEEN:
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(2)
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The
ARM Partnership, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxx X0X 0XX, Xxxxxx Xxxxxxx
(the Consultant).
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WHEREAS:
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(A)
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The
Client has appointed the Consultant to provide the services and scope of
work as detailed in Schedule A (the Services)
and
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(B)
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The
Consultant, having represented to the Client that it has the required
professional skills and technical resources have agreed to provide the
Services on the terms and conditions set forth in this
Agreement.
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1
GENERAL PROVISIONS
1.1 Definitions
Unless
the context otherwise requires, the following terms whenever used in this
Agreement have the following meanings:
Agreement means, this
Agreement, including the Schedules hereto, as the same may be varied,
supplemented or modified from time to time;
Applicable Law means the laws
and any other instruments having the force of law in England as they may be
issued and come in force from time to time;
Client means Flex Fuels
Energy, Inc.;
Effective Date has the meaning
given to it in Clause 2.1;
Parties mean both the Client
and the Consultant;
Party means the Client or the
Consultant, as the case may be;
Scope of Services has the
meaning given to it in Schedule A Part (i);
Start Date has the meaning
given in Clause 2.1;
Third Party means any person
or entity other than the Client or the Consultant.
1.2 Relation
between the Parties
Nothing
contained herein shall be construed as establishing a relation of master and
servant or of agent and principal as between the Client and the
Consultant.
1.3 Law
Governing Agreement
This
Agreement, its meaning and interpretation, and the relation between the Parties
shall be governed by the Applicable Law.
1.4 Language
This
Agreement has been executed in the English language, which shall be the binding
and controlling language for all matters relating to the meaning or
interpretation of this Agreement.
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1.5 Headings
The
headings shall not limit, alter or affect the meaning of this Agreement.
References to Clauses and Schedules are references to clauses and appendices in
and of this Agreement.
1.6 Location
The
Services specified in Schedule A hereto shall be performed at the principal
place of business of the Consultant at the premises of the Client and at such
other locations as the Client may reasonably request.
1.7 Authorised
Representatives
Any
action required or permitted to be taken, and any document required or permitted
to be executed under this Agreement, in the case of the Consultant may be taken
or executed on behalf of the Consultant or their designated representatives and
in the case of the Client may be taken or executed or on behalf of the Client or
his designated representative, as the case may be from time to time, by those
named representatives set out in Clause 14.
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2
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COMMENCEMENT,
COMPLETION, MODIFICATION AND TERMINATION OF
AGREEMENT
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2.1 Effectiveness of
Agreement
This
Agreement shall come into force and effect on 2nd May
2008 (the Effective
Date). The Consultant shall commence the Services on 2nd May
2008 (the Start
Date). The Client hereby undertakes to pay the Consultant the
fees and reimburse expenditures incurred in respect of the Services provided
from the Start Date, in accordance with and subject to the terms of Schedule
B.
2.2 Expiration of
Agreement
Unless
terminated earlier for cause or pursuant to Clause 2.6, this Agreement shall
continue until either party gives written notice of intention to terminate. Such
written notice shall be for a period which shall in no circumstance be less than
three months.
2.3 Entire Agreement and Conflict
This
Agreement contains all covenants, obligations, undertakings and provisions
agreed to by the Parties. No agent or representative of either Party
has authority to make, and the Parties shall not be bound by or be liable for,
any statement, representation, promise or agreement not set forth
herein.
2.4 Modification
Modification
of the terms and conditions of this Agreement, including any modification of the
scope of the Services, may only be made by written agreement between the Parties
and shall not be effective until the consent of the Consultant and the Client
has been obtained.
2.5 Force Majeure and Suspension
2.5.1 Definition
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(a)
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For
the purposes of this Agreement, Force Majeure means an
event which is beyond the reasonable control of a Party, and which makes a
Party’s performance of its obligations hereunder impossible or impractical
in the circumstances, and includes, but is not limited to, war, riots,
civil disorder, earthquake, fire, explosion, storm, flood or other adverse
weather conditions, strikes, lockouts or other industrial action (except
where such strikes, lockouts or other industrial action are within the
power of the Party invoking Force Majeure to prevent), confiscation or any
other action by the Government or any agencies of the
Government.
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(b)
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Force
Majeure shall not include (i) any event which is caused by the negligence
or intentional action of a Party or such Party’s agents or employees, nor
(ii) any event which a diligent Party could reasonably have been expected
to both (A) take into account at the time of the conclusion of this
Agreement and (B) avoid or overcome in the carrying out of its obligations
hereunder.
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(c)
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Force
Majeure shall not include insufficiency of funds or failure to make any
payment required hereunder.
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2.5.2 No Breach of this
Agreement
The
failure of a Party to fulfil any of its obligations hereunder shall not be
considered to be a breach of, or default under, this Agreement insofar as such
inability arises from an event of Force Majeure, provided that the Party
affected by such an event has taken all reasonable precautions with the
objective of carrying out the terms and conditions of this Agreement to the
extent reasonably possible.
2.5.3 Measures to be
Taken
A Party
affected by an event of Force Majeure shall take all reasonable measures to
remove such Party’s inability to fulfil its obligations hereunder with a minimum
of delay.
A Party
affected by an event of Force Majeure shall notify the other Party of such an
event as soon as possible, and in any event not later than fourteen (14) days
following the occurrence of such event, providing evidence of the nature and
cause of such event, and shall similarly give notice of the restoration of
normal conditions as soon as possible.
The
Parties shall take all reasonable measures to minimise the consequence of any
event of Force Majeure.
2.5.4 Extension of Time
Any
period within which a Party is required, pursuant to this Agreement, to complete
any action or task shall be extended for a period equal to the time during which
such Party was unable to perform such action or task as a result of Force
Majeure.
2.5.5 Payments
During
the period of its inability to perform the Services as a result of an event of
Force Majeure, the Consultant shall be entitled to continue to be paid for any
and all Services provided under the terms of this Agreement as well as to be
reimbursed for additional costs reasonably and necessarily incurred by it during
such period in providing the Services and in reactivating the Services after the
end of such period.
2.5.6 Consultation
Not later
than thirty (30) days after the Consultant, as the result of an event of Force
Majeure, has become unable to perform a material portion of the Services, the
Parties shall consult with each other with a view to agreeing on appropriate
measures to be taken in the circumstances.
2.6 Termination
This
Agreement will terminate at the end of the Term as set out in Clause 2.2 above
or as set out in this Clause 2.6.1.
2.6.1 By the Client
The
Client may, by not less than fifteen (15) days’ written notice of termination to
the Consultant, such notice only to be given after the occurrence of any of the
events specified in paragraphs (a) through (e) of this Clause 2.6.1, terminate
this Agreement:
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(a)
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if
the Consultant fails to remedy a failure in the performance of its
obligations hereunder, as specified in a notice of suspension pursuant to
Clause 2.6.1, within fifteen (15) days of receipt of such notice of
suspension or within such further period as the Client may have
subsequently approved in writing;
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(b)
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if
the Consultant becomes insolvent or bankrupt or enters into any agreements
with its creditors for relief of debt or takes advantage of any law for
the benefit of debtors or goes into liquidation or receivership whether
compulsory or voluntary;
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(c)
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if
the Consultant fails to comply with any final decision reached as a result
of arbitration proceedings pursuant to Clause
13.2;
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(d)
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if
the Consultant submits to the Client a statement which has a material
adverse effect on the rights, obligations or interests of the Client and
which the Consultant knows to be false;
or
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(e)
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if,
as the result of Force Majeure, affecting the Consultant and
the Consultant is unable to perform a material portion of the Services for
a period of not less than sixty (60)
days.
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2.6.2
By the
Consultant
The
Consultant may, by not less than fifteen (15) days’ written notice to the
Client, such notice to be given after the occurrence of any of the events
specified in paragraphs (a) through (e) of this Clause 2.6.2, terminate this
Agreement:
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(a)
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if
the Client fails to pay any money due to and demanded by the Consultant
pursuant to this Agreement and which is not subject to dispute pursuant to
Clause 8, within thirty (30) days after receiving notice from the
Consultant that such payment is
overdue;
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(b)
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if
the Client fails to remedy a failure in the performance of its obligations
hereunder, as specified in a notice of suspension pursuant to Clause
2.6.2, within thirty (30) days of receipt of such notice of suspension or
within such further period as the Consultant may have subsequently
approved in writing;
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(c)
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if,
as the result of Force Majeure, the Consultant is unable to perform a
material portion of the Services for a period of not less than fifteen
(15) days; or
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(d)
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if
the Client fails to comply with any final decision reached as a result of
arbitration pursuant to Clause
13.2.
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(e)
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if,
as the result of Force Majeure, affecting the Client and the
Client is unable to perform a material portion of the Services for a
period of not less than sixty (60)
days.
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2.6.3 Cessation of Rights and
Obligations
Upon
termination of this Agreement pursuant to Clause 2.6, or upon expiration of this
Agreement pursuant to Clause 2.2, all rights and obligations of the Parties
hereunder shall cease, except (i) such rights and obligations as may have
occurred on or prior to the date of termination or expiration, (ii) the
obligation of confidentiality set forth in Clause 10 and (iii) any right which a
Party may have under the Applicable Law.
2.6.4 Cessation of
Services
Upon
termination of this Agreement by notice of either Party to the other pursuant to
Clause 2.6.1 or 2.6.2, the Consultant shall, upon delivery of such notice, or
pursuant to the completion of the Term in Clause 2.2 take all necessary steps to
bring those aspects of the Services which the Consultant has performed to a
close in a prompt and orderly manner and shall make every reasonable effort to
keep expenditures for this purpose to a minimum.
2.6.5 Payment upon
Termination
Upon
termination of this Agreement pursuant to Clauses 2.6.1 or 2.6.2, and as
applicable Clause 2.2, the Client shall make the following payments to the
Consultant:
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(a)
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all
invoiced amounts in respect of Services performed by the Consultant prior
to the date of termination;
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(b)
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reimbursable
expenditures for expenditure actually incurred prior to the effective date
of termination; and
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(c)
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except
in the case of termination pursuant to paragraphs (a) through (d) of
Clause 2.6.1, reimbursement of any reasonable costs incidental to the
prompt and orderly termination of the Agreement including the cost of the
return travel of the Consultant if not located at the Home
Office.
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2.6.6 Disputes about Events of
Termination
If either
Party disputes whether an event specified in Clause 2.6.1 or in Clause 2.6.2 has
occurred, such Party may, within thirty (30) days after receipt of notice of
termination from the other Party, refer the matter to arbitration pursuant to
Clause 13.2, and this Agreement shall not be terminated on account of such event
except in accordance with the terms of any resulting arbitral
award.
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OBLIGATIONS OF THE CONSULTANT
3.1 General
3.1.1 Standard of
Performance
The
Consultant shall perform the Services and carry out its obligations hereunder
with diligence and efficiency and shall observe sound management and employ
appropriate technology and methods.
3.1.2 Law Governing
Services
The
Consultant shall perform the Services in accordance with the Applicable
Law.
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3.2 Consultant not to Benefit from
Commission, Discounts, etc.
The
remuneration of the Consultant pursuant to Schedule B hereof shall constitute
the Consultant’s sole remuneration in connection with this Agreement or the
Services and the Consultant shall not accept for his own benefit any trade
commission, discount or similar payment in connection with this Agreement or the
Services or in the discharge of its obligations hereunder.
3.3 Liability of the
Consultant
The
Consultant shall be liable to the Client for the performance of the Services in
accordance with the provisions of this Agreement and for any loss suffered by
the Client as a result of a default of the Consultant in such performance,
subject to the following limitations:
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(a)
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the
Consultant shall not be liable for any damage or injury caused by or
arising out of the act, neglect, default or omission of any persons other
than the Consultant; and
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(b)
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the
Consultant shall not be liable for any loss or damage caused by
or arising out of circumstances over which the Consultant had no
control.
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The
aggregate liability of the Consultant to the Client under this Agreement will
not exceed an amount equivalent to the value of the Services.
4
REIMBURSEMENT FOR EXPENSES
The
Consultant shall be reimbursed for all expenses incurred while performing the
Services, provided, that such expenses, to the extent practicable, are incurred
with the knowledge of, and are pre-approved by the
Client. Reimbursable expenses shall include but not be restricted to
direct costs of any travel and associated expenses. Reimbursable
expenses shall include but not be restricted to direct costs of any travel and
associated expenses. Unless pre-authorised air travel shall be economy class.
Reimbursable expenses shall not include the Consultant's office overhead,
computer equipment and other normal routine administrative expenses that the
Consultant incurs in providing the Services. The Consultant shall
include with the invoice for expenses documentation supporting such invoices
expenses. All individual items greater than $US 25.00 and in the
aggregate not greater than $250.00 per month shall be supported by
receipts. In lieu of actual daily hotel and cost of meals and laundry
the Consultant may charge $150.00 per day for each night spent away from
Consultants home base when on the business of the Client.
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SUBMITTAL OF INVOICES
The
Consultant shall submit invoices to the Client as set out in Schedule B, and
such invoices shall be payable within fifteen (15) days of receipt of a correct
invoice by the Client. The Consultant may, at its discretion, invoice
the Client at any time during the assignment for reimbursable expenses and such
invoices shall be payable within 30 days of receipt by the
Client. Interest at UK Bank Base Rate + 4% may be charged on overdue
accounts at the Consultants discretion.
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INDEPENDENT
CONTRACTOR
The
Consultant will act as an independent contractor in the performance of the
duties set forth in this Agreement, and shall have no authority to incur any
obligations or liabilities on behalf of the Client, and shall not be deemed to
be an agent of the Client. The Client shall be solely responsible for
determining the means and methods for performing the Services.
This
Agreement does not oblige the Consultant to provide services exclusively to the
Client always provided that such other services are not provided to a Third
Party considered by Client to be a competitor. For avoidance of doubt
Consultant shall seek approval from Client. Any such approval will
not be unreasonably withheld.
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TAXES
The
Compensation for Services set out in Schedule B, unless otherwise specifically
stated, excludes VAT and all sales taxes, charges and duties chargeable by any
taxing authority having jurisdiction. These charges, including any withholding
taxes, shall be recovered by the Consultant from the Client. For the
avoidance of doubt the Consultant is responsible for his own personal taxation
on the Compensation received and this is not recoverable from the
Client.
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8
CONFIDENTIALITY
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8.1
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In
consideration of the parties providing each other with, or allowing each
other access to, information under this Agreement, it is hereby agreed as
follows:
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(i) The
Consultant agrees to treat as confidential all information furnished to it by
the Client and will not disclose any such information to a Third Party, other
than a Statutory Authority with a right in the applicable law to demand such
disclosure, without the express consent of the Client.
(ii)
Except to the extent as required and necessary for the conduct of its business,
the Client agrees to treat all information and opinions furnished to it by the
Consultant, including presentations, opinions and reports, as confidential and
will not disclose such information to any Third Party, other than a Statutory
Authority with a right in the applicable law to demand such disclosure, without
the prior consent of the Consultant. While the Client may for the
purposes of this exercise use information presented by the Consultant, such
information shall remain the property of the Consultant.
Should
either Party desire, and notify the other party in advance, the sub-clauses 8.1
(i) and (ii) also mean that the purpose or existence of the assignment shall be
kept confidential.
The
obligations of the Parties to hold information confidential shall not apply to
such information which at the time of its disclosure is in the public domain, or
subsequently comes into the public domain other than by a breach of this
Agreement; or at the time of its disclosure is in the receiving party's lawful
possession or subsequently is received from another party who is lawfully in
possession thereof and not bound by any obligation of
confidentiality.
The
extent of these confidentiality provisions includes all information included in
any proposal made by the Consultant to the Client and the contents of this
Agreement.
No Party
makes any representation or warranty as to the accuracy, quality or completeness
of any information and no liability to any party or its representatives shall
result from its use.
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OBLIGATIONS OF THE CLIENT
9.1 Change in the Law
If, after
the date of this Agreement, there is any change in law which increases the cost
incurred by the Consultant or decreases the revenue earned by the Consultant in
performing the Services, then the remuneration and reimbursable expenses
otherwise payable to the Consultant under this Agreement shall be adjusted
accordingly such that the Consultant is in the same position in which it would
have been in had such change not occurred.
9.2 Payment
In
consideration of the Services performed by the Consultant under this Agreement,
the Client shall make to the Consultant such payments and in such manner as is
provided by Schedule B.
9.3 Indemnification of the Consultant by
the Client
The
Client shall keep the Consultant, both during and after the term of this
Agreement, fully and effectively indemnified against all losses, damage,
injuries, deaths, expenses, actions, proceedings, costs and claims, including,
but not limited to, legal fees and expenses suffered by the Consultant or any
Third Party where such loss, damage, injury or death is the result of a wrongful
action, negligence or breach of Agreement of the Client or its employees or
agents.
10 OFFICIALS
NOT TO BENEFIT
No monies
or other valuable consideration shall be knowingly used, directly or indirectly,
to influence, improperly or unlawfully any decision or judgement of any official
or any government or of any subdivision, agency or instrument thereof in
connection with the subject matter of the Agreement or in connection with any
contracts or dealings with third parties associated with the Services and which
the Consultant might reasonably have been expected to be aware
of. The Consultant agrees that it shall conduct its activities in
accordance with all applicable laws, rules, orders and regulations of
governmental and regulatory authorities having jurisdiction.
11 NO
CONSEQUENTIAL DAMAGES
Notwithstanding
the provisions of Article 3.3, in no event shall any Party have any liability to
any other Party or its affiliates or subcontractors for any special, indirect,
exemplary, punitive or consequential loss or damage (including damages or claims
in the nature of lost revenue, income, profits or investment opportunities) and
each Party hereby releases and indemnifies the other Party from any such claimed
liability.
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12
SETTLEMENT OF DISPUTES
12.1 Amicable
Settlement
The
Parties shall use their reasonable endeavours to settle amicably all disputes
arising out of or in connection with this Agreement or the interpretation
thereof.
12.2 Right to
Arbitration
Any
dispute between the Parties as to matters rising pursuant to this Agreement
which cannot be settled amicably within ninety (90) days after receipt by one
Party of the other Party’s request for such amicable settlement, shall at the
option of either Party be referred to arbitration of a single arbitrator to be
agreed by the Parties or failing agreement to be nominated by the President of
the Chartered Institute of Arbitrators, London, or his nominee, in accordance
with and subject to the provision of rules for the time being and from time to
time of the London Court of International Arbitration. Such
arbitration shall be held in London, England and the proceedings conducted in
English. The arbitral award shall be final and binding on both
Parties, and the Parties hereby agree to waive, insofar as they are able to, all
rights of appeal in respect of such arbitral award. The performance
of the legal services and obligations under this Agreement shall continue during
the proceedings of arbitration.
13 ASSIGNMENT
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13.1
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None
of the Parties may assign its rights or obligations hereunder without the
prior written consent of the other Party, except that the Client may
assign its rights and obligations hereunder to any affiliate or to any
joint venture or any other entity in which the Client or any affiliate of
either is a participant.
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14 NOTICES
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14.1
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Any
notice, request or consent required or permitted to be given or made
pursuant to this Agreement shall be in writing and copied by
email. Any such notice, request or consent shall be deemed to
have been given or made when delivered in person to an authorised
representative of the Party to whom the communication is addressed, or
when sent by registered mail or facsimile or by email to such Party at the
following address:
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For the
Client: Flex
Fuels Energy Inc.
00 Xx
Xxxx Xxx, Xxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx
Attention: Xxxxx
Xxxxxxx
E-Mail: xxxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx
For the
Consultant: The
ARM Partnership
3rd Floor,
00 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, X0X 0XX, Xxxxxx Xxxxxxx
Attention:
Xxxxxx
Xxxxxx
E-Mail:
xxxxxx@xxxxx.xxx
14.2 Notices
will be deemed to be effective as follows:
(a) in
the case of personal delivery or registered mail, on delivery;
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(b)
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in
the case of facsimiles, one business day (being a day on which banks are
open for business in London, excluding weekends and public holidays in the
United Kingdom) following receipt of confirmed transmission
and
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(c)
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in
the case of email when sent.
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14.3
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A
Party may change its address for notice hereunder by giving the other
Party notice of such change pursuant to this Clause
14.
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IN
WITNESS WHEREOF, the Parties hereto caused this Agreement to be executed in one
or more counterparts, attested by the hands of their proper officers duly
authorized in that behalf as of the date first written above.
Flex
Fuels Energy Inc. (the
Client) The
ARM Partnership (the Consultant)
s.
Xxx
Xxxx
s. Xxxxxx Xxxxxx
By: Xxx
Xxxx By:
Xxxxxx Xxxxxx
Title:
Director Title:
Partner
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Schedule
A
Scope
of Services
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i.
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SERVICES
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The
Consultant’s principal activities will be fulfil the office of Chief Financial
Officer not as a board member and to provide Services as may be necessary to
support the Client in connection with oversight of compliance including (i)
ensuring that the internal accounts function prepares financial statements on a
timely and accurate basis in accordance with applicable GAAP and reviewing the
same; (ii) reviewing and helping to prepare regular SEC filings including 8K,
10K and 10Q filings and ensuring that a disciplined timetable is adhered to by
attorneys, auditors and the board, by coordinating the process; and (iii)
dealing with securities counsel and auditors in relation to routine SEC filings
and questions.
Where
additional services are required, outside of the scope of services set out
above, for example providing quasi-executive involvement at board level and
playing a key role in Corporate Finance transactions including due diligence and
transaction compliance reporting, the Consultant reserves the right to determine
the scope of these services in a separate engagement letter, and which may
involve different individuals from within the ARM Partnership.
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ii.
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JOB
DESCRIPTION
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Financial
and Corporate advice and activities relative to the corporate operations,
governance, compliance and related documentation for the Client and fulfilment
of the office of Chief Financial Officer not as a board member.
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iii.
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REPORTING
STRUCTURE
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Reports
to the Chief Executive Officer of the Client.
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Schedule
B
Compensation
for Services
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i.
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Fees
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The
Consultant will charge and be paid a fee of US$5,000 per calendar month (pro
rata for any part month) for the Services as provided by Xxxxxx Xxxxxx or any
other equally qualified person provided by the Consultant and acceptable, in
sole discretion, to the Client.
The
consultant will provide such time as may be determined by the Client on a
priority basis as necessary to perform the Services required.
For any
services performed by any other consultant employed by the Consultant an
appropriate fee will be agreed in advance.
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ii.
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Payment
Terms
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The
Client will pay the fee and expenses in accordance with the terms in Clause 5 of
this Agreement.
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iii.
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The
Consultant will invoice as follows:
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The
Consultant will invoice the client monthly promptly after the end of each
month.
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