MANAGEMENT SERVICES AGREEMENT
Exhibit
10.1
MANAGEMENT
SERVICES AGREEMENT
THIS
MANAGEMENT SERVICES AGREEMENT (“Agreement”)
is
made as of the 9th
day of
January, 2008 (“Effective
Date”)
by and
between [Company A] a Delaware limited liability company (“Company”),
and
Alternative Energy Sources, Inc., a Delaware corporation (“AENS”).
Company and AENS may collectively be referred to as the “Parties”.
WITNESSETH:
WHEREAS,
subject
to the terms and provisions hereof, the Company desires that AENS provide
certain consulting services for the Company and AENS is willing to provide
such
services.
NOW,
THEREFORE,
in
consideration of the foregoing premises, the mutual covenants and other
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
1. Services.
The
Company hereby retains AENS to provide to the Company the services set forth
on
Exhibit
A
attached
hereto and incorporated herein by reference (the “Services”)
and
AENS agrees to provide the Services as set forth herein. AENS will devote the
required time and expertise necessary to complete the assigned services without
limitation. Notwithstanding anything else to the contrary set forth herein,
Company understands and acknowledges that AENS is undergoing a
publicly-announced review of strategic alternatives, which could include,
without limitation, a sale of AENS or the raising of debt or equity capital
and
that AENS would not have entered into this Agreement or agreed to perform the
Services if such actions would jeopardize or adversely impact such review of
strategic alternatives, or limit any alternatives available to AENS. As a
result, in no event shall AENS be obligated to perform any Services or otherwise
take any action that in the reasonable judgment of AENS jeopardizes, conflicts
with or is inconsistent with AENS’s review of strategic alternatives or with any
transaction being contemplated or with the fiduciary duties of AENS officers
and/or directors.
2. Term.
This
Agreement shall commence on the Effective Date and shall continue until
terminated in accordance with Section 4 hereof.
3. Payment
of Fees.
In
consideration for the Services provided by AENS, the Company shall pay to AENS
(i) $125,000 each month during the term hereof (the “Flat
Fee”)
plus
(ii) documented out-of-pocket costs incurred by AENS in performance of the
Services (the “Costs”).
Any
Cost over $1,000 per incurrence will require pre-approval by the Company. The
Flat Fee shall be payable in advance by the Company on the 1st day
of each month beginning February 1, 2008. The period from the date of
execution of the agreement through January 31, 2008 will be paid on a prorata
basis. The Company shall pay the Costs in the month immediately following
incurrence by AENS of such Costs (i.e., Costs
incurred in January are payable in February).
4. Termination.
This
Agreement may be terminated by either party, in its sole option and for any
reason, upon providing written notice of termination. If the Company terminates
the agreement AENS will retain the monthly fee paid for such month. If AENS
terminates the agreement they will return to the Company an amount equal to
the
prorata amount of service days remaining in the month. Such notice shall be
delivered to the other party in accordance with Section 7 hereof.
5. Relationship
of the Parties.
The
Company and AENS affirmatively state that they are not forming a joint venture,
partnership, association or other relationship for tax or any other purposes.
AENS shall perform its obligations under this Agreement as that of an
independent contractor.
6. Indemnification.
The
Company agrees to indemnify and hold harmless AENS and its shareholders,
officers, directors, employees, representatives and agents (collectively, the
“Indemnified
Parties”)
from
and against any and all losses, claims, damages, liabilities, costs and expenses
(including reasonable attorneys’ fees and expenses related to the defense of any
claims), which may be asserted against any of the Indemnified Parties arising
directly or indirectly out of this Agreement.
7. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given (i) when delivered in person or when delivered
by
overnight courier, (ii) on the first business day following receipt when
delivered by telegraphic or other electronic means (including facsimile,
telecopy and telex), or (iii) if mailed, upon the delivery or refusal date
(as
shown on the receipt), if deposited in the United States mail, certified or
registered mail, first-class postage prepaid, return receipt requested, to
the
parties at the following addresses or facsimile numbers:
| If to the Company: |
[Company
A]
[ ]
[ ]
[ ]
|
| If to AENS: |
Alternative
Energy Sources, Inc.
000
Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attn:
Xxxx Xxxxxx
Fax:
000-000-0000
|
Any
party
from time to time may change its address or facsimile number for the purpose
of
receipt of notices to that party by giving a similar notice specifying a new
address or facsimile number to the other notice parties listed above in
accordance with the provisions of this Section 7.
8. Entire
Agreement.
This
Agreement supersedes all prior oral discussions and written agreements between
the parties with respect to the subject matter of this Agreement (including
any
term sheet or similar agreement or document relating to the transactions
contemplated hereby) and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof, excluding any written
agreements between the Parties hereof in existence as of the date hereof.
Notwithstanding the foregoing, the terms of those certain non-disclosure
agreements previously or contemporaneously entered into by the Parties hereto,
shall remain in effect.
9. Waiver.
Any
term or condition of this Agreement may be waived at any time by the party
which
is entitled to the benefit thereof. Any such waiver must be in writing and
must
be duly executed by such party. A waiver on one occasion shall not be deemed
to
be a waiver of the same or any other breach, provision or requirement on any
other occasion.
2
10. Amendment.
This
Agreement may be modified or amended only by a written instrument duly executed
by each of the parties hereto.
11. Counterparts
and Facsimile Signatures.
This
Agreement may be executed simultaneously in any number of counterparts, each
of
which shall be deemed an original, but all of which shall constitute one and
the
same instrument. Facsimile signatures on this Agreement shall be deemed to
be
original signatures for all purposes.
12. No
Third Party Beneficiary.
The
terms and provisions of this Agreement are intended solely for the benefit
of
the parties hereto and their respective successors or assigns, and it is not
the
intention of the Parties to confer third party beneficiary rights upon any
other
person.
13. Governing
Law.
This
Agreement shall be governed by the law of the State of Texas, without regard
to
conflict of law rules.
14. Binding
Effect.
This
Agreement shall be binding upon and will inure to the benefit of the parties
and
their respective successors and permitted assigns.
15. Assignment.
Neither
this Agreement nor any right hereunder or part hereof may be assigned by any
party hereto without the prior written consent of the other party
hereto.
16. Headings.
The
headings used in this Agreement have been inserted for convenience and do not
constitute provisions to be construed or interpreted in connection with this
Agreement.
17. Severability;
Invalid Provisions.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, (i) such provisions will be fully severable,
(ii) this Agreement will be construed and enforced as if such illegal, invalid
or unenforceable provision had never comprised a part hereof, (iii) the
remaining provisions of this Agreement will remain in full force and effect
and
will not be affected by the illegal, invalid or unenforceable provision or
by
its severance herefrom; and (iv) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
18. Limitation
on Liability.
AENS
and its shareholders, officers, directors, representatives and employees, shall
not be liable to the Company (or its affiliates) for any special, consequential,
incidental, punitive or exemplary damages (including lost or anticipated
revenues or profits relating to the same) arising from any claim relating to
this Agreement or any of the Services provided hereunder, unless such claim
arises for a breach of confidentiality, whether such claim is based on warranty,
contract, tort (including negligence or strict liability) or otherwise, even
if
an authorized representative is advised of the possibility or likelihood of
the
same. In addition, AENS and its shareholders, officers, directors,
representatives and employees, shall not be liable to the Company (or its
affiliates) for any direct damages arising from any claim relating to this
Agreement or any of the Services provided hereunder or required to be provided
hereunder, except to the extent that such direct damages are caused by the
gross
negligence, fraudulent acts or intentional misconduct of AENS. In no case shall
AENS, or any its shareholders, officers, directors, representatives and
employees, be liable for any amount in excess of the aggregate amount of the
Flat Fee actually paid by the Company under this Agreement, unless such
liability arises from a breach of confidentiality.
3
19. Further
Assurances.
On and
after the date hereof, the Company and AENS will take all appropriate action
and
execute all documents, instruments or conveyances of any kind which may be
reasonably necessary or advisable to carry out any of the provisions
hereof.
20. Waiver
of Jury Trial.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND
THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED
TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY.
THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING
FROM
ANY SOURCE INCLUDING, BUT NOT LIMITED TO, THE CONSTITUTION OF THE UNITED STATES
OR ANY STATE THEREIN, COMMON LAW OR ANY APPLICABLE STATUTE OR REGULATIONS.
EACH
PARTY HERETO ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS
RIGHT
TO DEMAND TRIAL BY JURY.
21. Survival.
The
terms of Sections 3 and 6-21 shall survive the expiration or termination of
this
Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
|
[COMPANY A]
|
||
|
By:
|
/s/President & CEO of Company A
|
|
| Name:
Title: President
& Chief Executive Officer
|
||
|
ALTERNATIVE
ENERGY SOURCES, INC.
|
||
| By: | /s/Xxxx Xxxxxx | |
| Name: Xxxx
Xxxxxx
Title: Chief
Executive Officer
|
||
4
EXHIBIT
A --SERVICES
AENS’s
services shall include the following to the extent reasonably requested by
Company from time to time:
|
·
|
Evaluate
corn procurement strategy;
|
|
·
|
Commercial
contract review and analysis;
|
|
·
|
Risk
management review and analysis;
|
|
·
|
Operations
evaluation;
|
|
·
|
Logistics
assessment (rail, truck, barge and
ship);
|
|
·
|
Due
diligence support
|
|
·
|
Other
items as agreed.
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