EXHIBIT 10.9 CONSULTING AND SERVICES AGREEMENT This Agreement is effective as
of January 1, 2002 BY AND BETWEEN: FS2 Limited registered in England with
number 4102584 whose registered office is at Carlton Tower, 34 St Pauls Street,
Leeds, LS1 2QB United Kingdom ("FS2") AND: Emsley Management Ltd., ...
CONSULTING AND SERVICES AGREEMENT
This Agreement is effective as of January 1, 2002
BY AND BETWEEN:
FS2 Limited registered in England with number 4102584 whose
registered office is at Carlton Tower, 34 St Pauls Street,
Leeds, LS1 2QB United Kingdom ("FS2")
Emsley Management Ltd., through Mr. Roger Emsley, having a
place of business at 2920 64th Street, Delta, Vancouver,
British Columbia ("The Consultant").
The parties hereto agree as follows:
1. Scope of Services
FS2 hereby retains The Consultant and The Consultant agrees to provide FS2 the
services as more fully described at Section 4 herein ("the Services") subject to
all of the terms, conditions and provisions hereof.
1.1 Name of The Consultant's Designated Person
The term of this Agreement shall be from January 1, 2002 to and including
December 31, 2003. The Term of this Agreement may be extended by written
agreement between the parties.
As compensation for the Services rendered by The Consultant under this
Agreement, FS2 shall pay The Consultant in accordance with Schedule 1 attached
hereto and incorporated herein, for undertaking the services described in
Section 4 of this agreement. The Consultant will submit invoices for work
completed each month. All amounts payable hereunder shall be paid within fifteen
(15) days from the date of The Consultant's invoice subject to FS2's complete
satisfaction with the Services. All such compensation shall be payable without
deduction, including no deduction for federal income, social security, or
state/provincial income taxes (the "Taxes"). The Consultant hereby acknowledges
that he is solely responsible for payment of the Taxes to all proper authorities
and holds FS2 harmless for any default by The Consultant to pay same. All such
compensation is exclusive of The Consultant's expenses related to the Services.
[ ] [ ]
4. Description of Services
During the Term of this Agreement The Consultant shall be responsible for
providing consulting and other services to FS2 as follows:
1. Serving as Chief Operating Officer of FS2 and as a member of the Board of
Directors of FS2;
2. Working with the CEO in the development of the corporate strategies and
strategic goals and objectives of FS2;
3. Establishing business plans, operating policies and procedures to attain
the strategic objectives;
4. Maintaining close coordination with the International Air transport
Association in attaining the strategic goals and objectives of FS2.
5. Providing strategic and operational direction to the operating units of
6. Representing FS2 in relations with major customers, suppliers, stakeholders
7. Executing on behalf of FS2 contracts with consultants hired by FS2,
customers, and suppliers;
8. Directing the acquisition and continuing development of key human resources
in the operating units;
9. Validating and monitoring overall progress against the business plan;
10. Attendance as necessary at Board and Management Meetings;
11. Carrying out specific projects and studies as requested by the CEO.
5. Conditions of Services
Throughout the Term of this Agreement, The Consultant shall be based at the
offices of Emsley Management Ltd, but shall also provide Services based out of
the International Air Transport Association offices in Geneva Switzerland, and
at other locations as agreed to by FS2.
In performing the Services, The Consultant shall report in the first instance to
the Chairman of the Board and Chief Executive Officer (CEO) of FS2.
FS2 shall reimburse The Consultant for all reasonable business expenses that
were incurred by him during the performance of the Services hereunder, provided
that any such expenditure shall require FS2's prior written approval. FS2's
obligation to reimburse The Consultant pursuant to this Section shall be subject
to the prompt presentation to FS2 by The Consultant of an itemized account of
such expenditures, together with supporting vouchers, in accordance with FS2's
policies in effect at that time. FS2 will reimburse The Consultant for all
tickets for business travel undertaken during the term of this Agreement and
will reimburse The Consultant for all reasonable hotel and meal expenses related
thereto when away from the offices of Emsley Management Ltd upon prompt
presentation of supporting proof of expenditures.
[ ] [ ]
7. Quality of Work
It is expressly understood by all parties hereto that throughout the Term of
this Agreement, The Consultant shall render his Services conscientiously and
shall devote his best efforts and abilities thereto, in such manner and at all
times during the Term hereof.
The Consultant expressly agrees to perform the Services under this Agreement in
compliance with any applicable laws and regulations and The Consultant assumes
sole responsibility for his actions.
9. Independent Contractor
Throughout the period of this Agreement, the status of The Consultant will be
that of an independent contractor and no relationship of employee/employer will
arise or is intended to be created by this Agreement. All remuneration paid to
The Consultant by FS2 under this Agreement shall be payable without any
deduction, including no deduction for income taxes, social security or any other
taxes or impositions deducted by an employer. The Consultant will be responsible
for any income tax on any payments made to him hereunder and for his own social
security contributions, health, accident and pension plans.
10. Disclosure of Information
The Consultant expressly agrees that all files, records and documents given to
him by FS2 relating in any manner whatsoever to the business of FS2, and all
other files, records and other materials owned by FS2 or used by it in
connection with the conduct of its business remain the property of FS2. All such
records and documents and other materials shall be returned immediately to FS2
upon the termination of this Agreement.
The Consultant shall not disclose or appropriate to his own use, or to the use
of any third party, at any time during or subsequent to the Term of this
Agreement, any confidential information and trade secrets of FS2 including,
without limiting the foregoing, any privileged commercial information of FS2 or
any of FS2's affiliates or subsidiaries including, but not limited to,
information pertaining to customer lists, services, methods, processes, prices,
profits, contract terms or operating procedures, unless authorized to do so by
FS2. All such manuals, letters, notes, notebooks, reports and all other
materials of a secret or confidential nature shall be returned immediately to
FS2 upon the termination of this Agreement. FS2 shall have the right to obtain
injunctive relief, without bond, for violation of the terms of this Section 10.
The terms of this Section 10 shall survive the expiration of this Agreement.
11. Ownership and Intellectual Property Rights
All records and documents, whether in hard copy, diskette, or in other media,
given to The Consultant, by FS2 relating to this Agreement remain the property
[ ] [ ]
12. Early Termination
12.1 This Agreement may terminate prior to the end of the Term:
(a) by mutual written agreement between the parties;
(b) upon six months' prior written notice by either party after the first
eighteen months of the Term, in which case it is understood that FS2
will only pay for services rendered to the date of termination; or
(c) by FS2, in the event of death, disability or other incapacity
resulting in the inability of The Consultant to perform the duties set
forth herein. In the event of termination under this Section 12.1(c),
the termination shall be effective as of the date of notice of
12.2 FS2 shall have the option to terminate this Agreement for cause,
immediately upon notice to The Consultant, upon the occurrence of any of
the following events:
(a) The Consultant materially breaches any of the terms or provisions of
this Agreement and (if the breach is capable of remedy) The Consultant
has failed to remedy within 45 days after receipt of written notice
giving particulars of the breach.
(b) The Consultant habitually neglects his duties as contemplated under
Termination for cause shall be without prejudice to any of FS2's other rights or
recourses against The Consultant.
This Agreement may not be assigned by The Consultant without the prior written
approval of FS2.
14. Modification of Agreement
This Agreement may be modified by the parties hereto only by a written
supplemental agreement executed by both parties.
[ ] [ ]
Except as expressly provided elsewhere in the Agreement, any notice or other
communication to the other party shall be in writing and shall be sent by
facsimile with a copy by prepaid priority mail to the facsimile numbers and
addresses indicated below;
34 St Pauls Street, Leeds,
Fax: 44 (0)113 244 6680
For The Consultant:
Emsley Management Ltd.
2920 64th Street
Delta, British Columbia, Canada, V4L 2N7
Tel: +1 (604) 946 0737
Fax: +1 (604) 946 7250
Such notice or other communication shall be deemed received on the next business
day (in the jurisdiction of the recipient) following its transmission by
facsimile. The parties may change their addresses or facsimile numbers by notice
to the other party.
Words importing the singular shall include the plural and vice versa.
The failure by either party at any time to require performance by the other
party of any of its obligations shall not affect the other party's rights to
require such performance at any time thereafter. A waiver by either party of a
breach or specific delay shall not be taken or held to be a waiver of any
subsequent breach or delay.
The headings of Sections are for convenience only and shall not be used to
interpret provisions of this Agreement or otherwise affect the substantive
If any part, term, or provision of this Agreement shall be held illegal,
unenforceable, or in conflict with any law of a government having jurisdiction
over this Agreement, the validity of the remaining portions or provisions of the
Agreement shall not be affected thereby and shall remain in force. In the
exceptional case where suppression would empty the whole Agreement of its
substance the whole Agreement may be terminated.
[ ] [ ]
18. Force Majeure
The performance of this Agreement by either party is subject to acts of God,
war, government regulations, disaster, strikes, civil disorders, curtailment of
transportation facilities, or other emergencies making it impractical,
inadvisable, illegal or impossible for either party to perform its obligations.
It is accepted that this Agreement may be terminated without penalty for any one
or more of the foregoing reasons by written notice from one party to the other.
19. Governing Law and Arbitration
This Agreement shall be governed by the laws of the United Kingdom.
Should any difference or dispute arise between the parties concerning their
respective rights, duties or liabilities under this Agreement, such difference
or dispute shall be exclusively and finally settled by arbitration under the ICC
Rules of Arbitration.
20. Entire Agreement
This Agreement contains the entire contract between the parties with respect to
the subject matter hereof and supersedes all prior agreements and understandings
between the parties concerning the subject matter hereof.
This Agreement will be signed in duplicate by the parties, FS2 and The
Consultant, each party retaining one signed copy.
In WITNESS HEREOF, the parties have executed the Agreement as on the day and
year of this Agreement.
FS2 LIMITED EMSLEY MANAGEMENT LTD.
Signed: Signed: /s/ Roger Emsley
Roger Emsley, Director
[ ] [ ]
Schedule 1 Compensation
FS2 and the Consultant hereby agree the following terms and conditions and rate
of payment for the Services under the Consulting and Services Agreement:
1. The sum of $US 12,000.00 per month to be paid monthly in arrears upon
presentation of invoice.
2. Payment to commence as of the effective date of this agreement, but
waived for the calendar year 2002 and as long as the Consultant is
under a separate contract with the International Air Transport
3. All fees to be paid in US Dollars and wire transferred at the expense
of FS2 to a bank account nominated by the Consultant.
[ ] [ ]