Indemnity Agreement among Fuel Corporation of America, Tryant, LLC and flexScan, Inc. dated as of August 12, 2005




 

Exhibit 10.2





flexSCAN,
Inc.

27201
Puerta Real, Suite 350

Mission
Viejo, CA 92691





	
      Attention:
	
      Thomas
      Banks, President and CEO







Fuel
Corporation of America

1608
W. 2225 South

Woods
Cross, Utah 84087

 






	
      Re:
	
      
      Indemnity
      Agreement that is Exhibit D to the Agreement and Plan of Merger (“Merger
      Agreement”), among flexSCAN, Inc., a Delaware corporation (“flexSCAN”);
      Fuel Corporation of America, a Nevada corporation (“FCA” or the
      “Company”); and a newly formed Delaware corporation that is a wholly-owned
      subsidiary of FCA (“Merger Sub”), and payment of the sum of $550,000 to
      Tryant LLC, a Delaware limited liability company (“Tryant”)
      






Gentlemen:





In
partial consideration of the closing of the Reorganization Agreement and the
delivery of this Indemnity Agreement, for the sum of $550,000 to be paid by
flexSCAN and/or FCA to Tryant, $25,000 of which has already been deposited into
the Trust Account of Leonard W. Burningham, Esq., counsel for FCA, payable as
follows: $325,000 on the Closing of the Merger Agreement (as defined therein),
which includes the $25,000 presently on deposit in the Trust Account of counsel
for FCA; and $225,000 pursuant to the attached Promissory Note of FCA and
flexSCAN.




Subject
to payment of the foregoing amounts when the same shall become due, Tryant
agrees to pay and indemnify the Company and flexSCAN with respect to any and all
past liabilities of any type or nature whatsoever of the Company existing at or
arising out of any act or occurrence prior to the Closing of the Merger
Agreement and all other related agreements, and which will include but are not
limited to the expenses of the Company related to the Closing of the Merger,
those expenses owed to Tryant for advances, loans or services or any and all
other expenses whatsoever that were incurred prior to Closing.




As
a further condition to the execution and delivery of this Indemnity Agreement,
and as a condition of Tryant to the Closing of the Merger Agreement, FCA and
flexSCAN agree not to effect a reverse split of the outstanding common stock of
FCA (or any successor) for a period of 24 months from the Closing of the Merger
Agreement. The parties hereto agree that in the event of such a reverse split
during such 24 month period, that as liquidated damages and not as a penalty by
reason of the fact that the parties cannot quantify the amount or extent of the
damages that may be suffered by Tryant as a result thereof, that Tryant, only to
the extent that it still owns any of the shares that it owned at the Closing of
the Merger (or its designees if it has made any private transfers of such shares
and only to the extent that such shares are still then owned by such designees),
shall be issued additional fully-paid shares of common stock of FCA in amount
sufficient to bring its holdings back to the pre-reverse split number of shares
owned, without qualification. 























 

Page 2

 



	 	
      Tryant
      also represents:

	 	 	 
	 	
      1.
	
      Tryant
      hereby agrees to indemnify and hold flexSCAN, its officers, directors,
      employees and agents and each person, if any, who controls flexSCAN within
      the meaning of Section 15 of the Securities Act of 1933, as amended (the
      ‘‘Securities Act’’) or Section 20 of the Securities Exchange Act of 1934,
      as amended (the ‘‘Exchange Act’’), the stockholders of flexSCAN and,
      following the Closing, FCA and all of its then officers, directors,
      employees and agents and each person, if any, who then controls FCA within
      the meaning of Section 15 of the Securities Act or Section 20 of the
      Exchange Act, harmless from and against any and all past liabilities of
      any type or nature whatsoever of FCA existing at the Closing or arising
      after the Closing but relating to acts or omissions occurring prior to
      Closing, which includes any and all expenses related to the defense,
      compromise or settlement of any action with respect to such
      liabilities.

	 	 	 	 
	 	
      2.
	
      In
      case any action shall be commenced involving any person in respect of
      which indemnity may be sought pursuant hereto (the ‘‘Indemnified Party’’),
      the Indemnified Party shall promptly notify Tryant in writing. A delay in
      giving notice shall only relieve Tryant of liability to the extent Tryant
      suffers actual prejudice because of the delay. Tryant shall have the
      right, at its option and expense, to participate in the defense of such a
      proceeding or claim, but not to control the defense, negotiation or
      settlement thereof, which control shall at all times rest with the
      Indemnified Party. The parties hereto agree to cooperate fully with each
      other in connection with the defense, negotiation or settlement of any
      such proceeding or claim.

	 	 	 	 
	 	
      3.
	
      The
      parties agree that all of the representations and warranties contained
      herein shall survive the Closing and continue to be binding regardless of
      any investigation made at any time by any party.

	 	 	 	 
	 	
      4.
	
      At
      any time, and from time to time, each party will execute such additional
      instruments and take such action as may be reasonably requested by the
      other party to carry out the intent and purposes of this
      Agreement.

	 	 	 	 
	 	
      5.
	
      Any
      failure on the part of any party hereto to comply with any of its
      obligations, agreements or conditions hereunder may be waived in writing
      by the party to whom such compliance is owed.

	 	 	 	 
	 	
      6.
	
      All
      notices and other communications hereunder shall be in writing and shall
      be deemed to have been given if delivered in person or sent by prepaid
      first-class registered or certified mail, return receipt requested, as
      follows:




 







2












 

Page 3

 


	 	
       
	
      
      If
      to Tryant:

	
      1608
      W. 2225 South

	 	 	
       
	
      Woods
      Cross, Utah 84087

	 	 	 	 
	 	
       
	
      
      If
      to flexSCAN:

	
      27201
      Puerta Real, Suite 350

	 	 	
       
	
      Mission
      Viejo, CA 92691

	 	 	 	 
	 	
       
	
      
      If
      to FCA:

	
      1608
      West 2225 South

	 	 	
       
	
      Woods
      Cross, Utah 84087

	 	 	 	 
	 	
      7.
	
      This
      Agreement constitutes the entire agreement between the parties and
      supersedes and cancels any other agreement, representation or
      communication, whether oral or written, between the parties hereto
      relating to the transaction contemplated herein or the subject matter
      hereof.

	 	 	 	 
	 	
      8.
	
      This
      Agreement shall be governed by and construed and enforced in accordance
      with the laws of the State of Utah without giving effect to principles of
      conflicts of laws, and any action to enforce the terms and provisions
      hereof may only be brought in the federal and state courts situated in
      Salt Lake County, Utah.

	 	 	 	 
	 	
      9.
	
      This
      Agreement shall inure to the benefit of, and be binding upon, the parties
      hereto and their successors and assigns.

	 	 	 	 
	 	
      10.
	
      This
      Agreement may be executed simultaneously in two or more counterparts, each
      of which shall be deemed an original, but all of which together shall
      constitute one and the same instrument.

	 	 	 	 
	 	
      11.
	
      In
      the event of default hereunder by either party, the prevailing party in
      any proceeding to enforce this Agreement shall be entitled to recover
      attorney’s fees and costs and such other damages as may have been caused
      by the default of the defaulting
party.





 

 


	 	 	 
	 	TRYANT, LLC 
	 
 	 
 	 
 
	Dated: 8/12/2005	By:  	/s/ Jeffrey D. Jenson
	 	
      

    
	 	Jeffrey D. Jenson,
    Manager



 


	 	 	 
	 	FUEL CORPORATION OF
      AMERICA
	 
 	 
 	 
 
	Dated: 8/12/2005	By:  	/s/ Jeffrey D. Jenson
	 	
      

    
	 	Jeffrey D. Jenson,
    President












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Page 4

 


	 	 	 
	 	FLEXSCAN, INC.
	 
 	 
 	 
 
	Dated: 8/11/2005	By:  	/s/ Thomas Banks
	 	
      

    
	 	
      Thomas
      Banks, President and CEO




 

 

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