Exhibit
10.2
SERVICES
AGREEMENT
This
Services Agreement (the “Agreement”) is entered into this 7th
day of
September, 2007 between Mobius Risk Group, LLC; a Texas Limited Liability
Company having its principal place of business at Three Riverway, Suite 1700,
Houston, Texas, 77056 (“Mobius”) and Medical Discoveries, Inc. (the “Company”);
a Utah Corporation having its principal place of business at 1338 South Foothill
Drive # 266, Salt Lake City, Utah 84108.
WHEREAS
the Company desires obtaining certain professional services more particularly
described herein from Mobius and, to this end, engaging the services of
Mobius;
AND
WHEREAS the parties seek to enter into a formal Services Agreement which
will
include final terms and conditions set forth in a definitive
agreement;
AND
WHEREAS the parties set forth here in writing the basis of their relationship
to
clearly affect the supply and purchase of such services;
NOW
THEREFORE in consideration of the premises and of the mutual covenants
hereinafter set forth and other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, the parties mutually agree as
follows:
Scope
of Work
The
Company is currently engaged in and developing a business to grow, produce,
manufacture, and sell seed oils; including but not necessarily limited to
seed
oil produced from the seed of the Jatropha plant (Jatropha
Curcas),
for the
purpose of providing feedstock oil intended for the production of methyl
ester,
otherwise known as biodiesel, as either a fuel or industrial solvent; along
with
other related byproduct commodities including seed meal and plant-based
biomass.
In
support of the Company’s stated objectives, Mobius will perform the following
tasks:
| 1. |
Trait
Selection & Propagation Research Program.
On behalf of the Company, Mobius will manage and supervise
a research and
development (R&D) program contracted by the Company and conducted by
the University of Texas Pan American (UTPA) regarding location,
characterization, and optimal economic propagation of the Jatropha
Curcas
species. The research and development program will be aimed
at achieving
the following tasks:
|
| a. |
Location
of native Mexican, Caribbean & Central American stands of Jatropha for
the purpose of harvesting and collecting seeds and stems for
R&D and
bulk collection
purposes,
|
|
b.
|
Identification
of national and international 3rd-party
sources of Jatropha seed & stem samples and the acquisition of said
samples for R&D and bulk collection
purposes,
|
|
c.
|
Consulting
assistance in the Company’s rapid seed & specimen collection and
planting in Texas, Mexico, the Caribbean and Central
America production
nurseries, and
|
| d. |
Initiation
and completion of greenhouse & field studies aimed at assessing and
augmenting,
|
|
i.
|
Seedling
maturation rates,
|
|
ii.
|
Seed
production rates, and
|
|
iii.
|
Seed
oil content
|
| 2. |
Growing
Operations Start-Up Program.
Mobius will manage and supervise the creation, planning, construction,
and
start-up of plant nurseries and seed production plantations
in two
geographical areas that may include either South Texas, the
Yucatan
Peninsula of Mexico (Merida), the Caribbean or Central America.
The
specific two geographic areas of operations will be selected
by the
Company. Nursery operations are intended to support the start-up
of two
(2) plantations of approximately 1,000-Hectares (Ha) each.
Mobius will
manage and supervise activities in the selected geographic
areas, as well
as the contractors and consultants selected and contracted
by the Company
to perform the following
tasks:
|
|
a.
|
Growing
Operations – Nursery
Start-Up
|
|
i.
|
Identification
of potential plant nursery sites and assistance with final
site
selections, and;
|
|
ii.
|
Preparation
and documentation of plant nursery site designs & logistics plans,
and;
|
|
iii.
|
Nursery
sites land clearing and construction & operations set-ups,
and;
|
|
iv.
|
Harvesting
of native Jatropha bulk seeds and stems and transferring to
and planting
at nurseries, and;
|
|
v.
|
Negotiating,
purchasing, and transferring 3rd party bulk seeds & stem stock and
transferring to and planting at nurseries,
and;
|
|
vi.
|
Management
of nursery operations from start-up through transfer of established
seedlings or cuttings to production
fields.
|
|
b.
|
Growing
Operations – Nursery-to-Farm
Operations
|
|
i.
|
Identification
& location of potential sites for production scale farms with
final
site selections, and;
|
|
ii.
|
Preparation
and documentation of planting, cultivation, and harvesting
strategies,
including a logistics plan for transferring seeds to a central
collection
and seed oil production site,
and;
|
|
iii.
|
Selection
of farm sites and negotiation of land leases/purchases and/or
farm
contracts, and;
|
|
iv.
|
Management
of training, land preparation, and seedling & cutting transplantation
from nurseries to farms,
and;
|
|
v.
|
Oversight
of cultivation and farming operations from initial plantation
start-up
through completed transfer of established seedlings or cuttings
to
production fields (two plantations of 1,000-Ha
each).
|
Term
of Engagement
The
Scope
of Work will begin on or about August __, 2007. The Trait Selection &
Propagation Research and the Growing Operations Start-Up Programs are expected
to proceed for twelve months, or until August __, 2008. The term of this
Agreement, therefore, will proceed for a period of twelve months or until
completion of the Scope of Work, whichever is sooner. The Agreement will
automatically renew for successive periods of six (6) months each, unless
notified by either party at least sixty (60) days prior to the end of the
initial term or any renewal terms. Notwithstanding the foregoing, this Agreement
may be terminated for cause by either party should: (i) the other party
materially breach this Agreement and the other party does not cure such breach
within thirty (30) days after receipt of written notice from the
nonbreaching party, or (ii) due to lack of adequate funding which is not
cured
within thirty (30) days after receipt of written notice from the party desiring
to terminate this Agreement.
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Positions
and Duties
During
the Term, and consistent with the Scope of Work provided above, Mobius shall
utilize commercially reasonable efforts to provide certain staff to serve
in
management and operations roles as requested by the Company, or alternatively,
at Mobius’ election, to provide services as an independent contractor that are
associated with the following roles. These roles may include Chief Operating
Officer, Chief Risk Officer, Vice-President Business Development, Risk Manager,
Project Developer, Project Manager or other staff that Mobius is qualified
to
provide and may be reasonably requested by the Company. During the Term,
Mobius
shall render such administrative, risk and other executive and managerial
services to the Company and its affiliates consistent with Mobius’ positions and
the by-laws of the Company and as the Chief Executive Officer or President
or
the Board of Directors of the Company may from time to time reasonably direct.
Mobius shall also have the right to designate a person to serve on the Board
of
Directors as a director of the Company or such subsidiaries of the Company
as
may from time to time be designated by the Board.
During
the Term, Mobius shall report to the Chief Executive Officer or the President
of
the Company, and shall devote its commercially reasonable efforts to the
business and affairs of the Company. Mobius shall perform its duties,
responsibilities and functions to the Company hereunder to the best of his
abilities in a diligent, trustworthy, professional and efficient manner and
shall comply with the Company’s policies and procedures in all material
respects. In performing its duties and exercising its authority under this
Agreement, Mobius shall support and implement the business and strategic
plans
approved from time to time by the Board of the Company, and directed by the
CEO
or the President of the Company, and shall support and cooperate with the
Company’s efforts to operate in conformity with the business and strategic plans
approved by the Board of the Company.
Fees
and Payment Terms
Mobius
will execute the Scope of Work described above for a fixed monthly retainer
fee
of $45,000 per month. Monthly retainer fees are payable one month in advance
of
services, with the first month’s fee payable upon execution of this Agreement.
Subsequent payments of monthly retainer fees are due and payable on or before
the 20th of the succeeding month.
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Expenses
During
the Services Period, the Company shall reimburse Mobius for all reasonable
pre-approved business expenses incurred during the course of performing its
obligations under this Agreement. “Reimbursable
Expenses”
means all pre-approved reasonable costs and expenses for copy and reproduction,
delivery, travel out of area, mileage, lodging, meals, and other project-related
incidental costs, or
as
otherwise determined beforehand by Company and provided to Mobius in
writing.
Mobius
will exercise its commercially reasonable efforts to minimize project expenses
consistent with its obligations under this Agreement. All Reimbursable Expenses
are payable within 30 days of invoice. Notwithstanding the foregoing, in
no
cases shall Reimbursable Expenses exceed more than $10,000 per month during
the
term of this Agreement, unless agreed to in writing by the Company prior
to the
expenses being incurred.
Confidentiality
Mobius
and Company each recognize that, during the course of the Term, each of them
may
have access to, and that there may be disclosed to them, information of a
proprietary nature owned by the other party, including but not limited to
records, supplier lists and information, pricing information, data, formulae,
design information and specifications, inventions, processes and methods,
which
is of a confidential or trade secret nature, and which has great value to
such
party (the “Confidential Information”). Mobius and Company each acknowledge that
except for this Agreement, and the Services to be provided hereunder, either
party would not have had and would not have access to such Confidential
Information, and Mobius and Company each agree that any and all confidential
knowledge or Confidential Information which may have been or may be obtained
by
or disclosed to them hereunder, including but not limited to the information
hereinabove set forth, will be held confidential by each of them, that each
of
them will use reasonable efforts to conceal the same from any and all other
persons, including but not limited to their competitors. Notwithstanding
anything in this Agreement to the contrary, however, Confidential Information
shall not include information which is (i) in or becomes part of the public
domain other than by disclosure by such party in violation of this Agreement,
(ii) demonstrably known to such party previously without an obligation of
confidentiality, (iii) can be demonstrated by such party to have been
independently developed by such party outside of this Agreement and not
constituting an infringement of any intellectual property rights, trade secrets
or other proprietary interest, or (iv) rightfully obtained by such party
from
third parties without an obligation of confidentiality.
Notwithstanding
anything to the contrary, Mobius shall continue to be the sole and exclusive
owner of its technical know-how and expertise outside of the Scope of Work
set
forth in this Agreement, and may utilize such technical know-how and expertise
for and on behalf of itself or third parties, and the Company shall have
no
claims with respect thereto. The Company shall not utilize any of such technical
know-how or expertise except for its own intended purposes and will not compete
with Mobius in providing the services provided by Mobius hereunder for
compensation for a time period of five (5) years after termination of this
Agreement. The Company shall own all Mobius technical know-how directly related
to the Scope of Work and shall be able to utilize such technical know-how
and
expertise for and on behalf of itself or third parties, and Mobius shall
have no
claims with respect thereto. Mobius shall not utilize any of such technical
know-how or expertise except for its own intended purposes and will not compete
with Company by providing to any third party the services set forth in the
Scope
of Work for a time period of eighteen (18) months after termination of this
Agreement. Mobius shall make prompt written disclosure to Company of all
inventions, improvements, discoveries, copyrightable works, or other
intellectual property, whether or not patentable or copyrightable, which
are
made, conceived, reduced to practice, or developed by Mobius, whether solely
or
jointly with others, during the course of performing consulting services
under
this Agreement or from any information obtained by Mobius in discussions
and
meetings with employees or other consultants of Company. Furthermore, Mobius
hereby assigns, and agrees to assign, all of Mobius' rights, titles, and
interests in such inventions, improvements, discoveries, copyrightable works,
and other intellectual property as it relates to biofuels feedstock research,
development, implementation, transportation and/or processing
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Independent
Contractor
Nothing
contained herein shall be construed as causing the parties to be partners,
co-owners or joint venturers. It is agreed by the parties that Mobius is
an
independent contractor performing services for Company.
Governing
Law
This
Agreement shall be construed according to and governed by the laws of the
State
of Texas. Any disputes under this Agreement shall be tried exclusively in
the
state or federal courts located in Harris County, Texas.
Notices
Any
notice required by this Agreement or given in connection with it, shall be
in
writing and shall be provided to the appropriate party by personal delivery
or
by certified mail, postage prepaid, or recognized overnight delivery
services;
If
to First Party:
Mobius
Risk Group LLC
Three
Riverway, Suite 1700
Houston,
TX 77056
Attention:
Casey Ragsdale
Telefax:
(713) 877-0405
If
to
Second Party:
Medical
Discoveries, Inc.
c/o
Sunhaven Farms
30103
West Gwinn Road
Prosser,
WA 99350
Attention:
Chairman of the Board, David R. Walker
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Final
Agreement
This
Agreement terminates and supersedes all prior understandings or agreements
on
the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
Headings
Headings
used in this Agreement are provided for convenience only and shall not be
used
to construe meaning or intent.
Drafting
In
the
event of any ambiguity in this Agreement, such ambiguity shall not be construed
against the drafter.
Waiver
No
failure or delay on the part of either party in exercising any right, power,
or
remedy hereunder shall operate as a waiver thereof.
Attorneys’
Fees and Costs
If
any
party to this Agreement files a court action to enforce or interpret that
party’s rights under this Agreement or in connection with any matter arising
from this Agreement, then the party deemed to be the prevailing party in
that
action shall be entitled to recover its/his costs of suit, including expert
witness fees, and reasonable attorneys’ fees incurred in connection with that
action.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
THIS
PORTION OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE
PAGES FOLLOW
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Mobius
Risk Group, LLC
|
By:
|
Date:
|
|||
|
Eric
J. Melvin
|
||||
|
Chief
Executive Officer
|
||||
Medical
Discoveries, Inc.
|
By:
|
Date:
|
|||
|
David
R. Walker
|
||||
|
Chairman
of the Board
|
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