BETTER BIODIESEL CORPORATION CONSULTING SERVICES AGREEMENT
Exhibit
10.8
BETTER
BIODIESEL CORPORATION
This
Consulting Services Agreement (the “Agreement”), dated
January___,
2008, is made by and between Cambridge Partners, LLC
(“Cambridge Partners”) (the “Consultant”) and
Better
Biodiesel Inc., a
Colorado corporation (the “Company”). The
Consultant and the Company shall hereafter be referred to individually as a
“Party” and
collectively as the “Parties.”
WHEREAS,
Consultant has extensive background in strategic management;
WHEREAS,
Consultant desires to be engaged by Company to provide strategic management
services to Company subject to the conditions set forth herein;
WHEREAS,
Company desires to engage Consultant to provide the strategic management
services on the terms and subject to the conditions set forth herein; and
NOW,
THEREFORE, in consideration for those services Consultant agrees to provide
to
the Company, the Parties agree as follows:
1.
Services of Consultant.
Consultant
agrees to perform for Company the strategic management services to effect the
implementation of the Company’s revised business plan (the “Services”), upon
such terms and to the extent the parties agree from time to time. The
nature of the Services to be provided shall include, but are not limited to
(the
“Services”):
2.
Consideration.
(a)
In
consideration for the Services rendered to the Company hereunder during the
Term
(defined below), the Company shall irrevocably, pay to Consultant compensation
including two million (2,000,000) shares common stock of the Company. Shares
issued pursuant to the exercise of this Agreement shall be issued for the
benefit of Cambridge Partners, LLC, the organization performing the consulting
Services for the Company. All shares and certificates representing such shares
shall be subject to applicable SEC, federal, state (Blue sky) and local laws
and
additional restrictions set forth herein; and
(b)
Consultant
shall be entitled to “piggy-back” registration rights for (i) the Common Stock
on all registrations of the Company, except for registrations filed on Form
S-4
or Form S-8, or on any demand registrations of any other investor subject to
the
right, however, of the Client and its underwriters to reduce the number of
shares proposed to be registered pro rata in view of market conditions or legal
considerations, pursuant to Rule 415 of the Securities Act, which may limit
the
total number of shares included in a single registration to 30% of the then
issued and outstanding common stock of the Client. The Company shall
bear registration expenses (exclusive of underwriting discounts and commissions)
of all such demands, piggy-backs, and S-3 or SB-2 registrations.
(c)
The
following
legend (or a legend substantially in the following form) shall be placed on
certificates representing the common stock issued pursuant to Section
2(1):
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED OR DISPOSED OF UNLESS (A) THERE IS
AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE UNITED STATES
STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES,
OR (B) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER
OF
THESE SECURITIES (CONCURRED IN BY LEGAL COUNSEL FOR THIS CORPORATION) STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (C) THIS CORPORATION
OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
[COMMENT:Under
a Voting Trust Agreement
such as this one, shareholders transfer their stock certificates to the Trustee
in exchange for voting trust certificates. Meanwhile, the Company transfers
the
shares represented by the certificates to the Trustee in the Company ledger.
RCW
23B.07.300 requires that a duplicate of the Voting Trust Agreement and any
extension thereof be filed with the Company, along with a list of the beneficial
owners of the shares subject to the trust.]
3.
Confidentiality.
Each
party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans, software, technical
processes and formulas, source codes, product designs, sales, costs and other
unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data (“Confidential
Information”). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a source
other than the receiving party, (b) was known to the receiving party as of
the
time of its disclosure, (c) is independently developed by the receiving party,
or (d) is subsequently learned from a third party not under a confidentiality
obligation to the providing party. Confidential Information need not
be marked as confidential at the time of disclosure to receive “Confidential
Information” protection as required herein, rather all information disclosed
that, given the nature of the information or the circumstances surrounding
its
disclosure reasonably should be considered as confidential, shall receive
“Confidential Information” protection.
4.
Non-Competition, Non-Solicitation.
(a) Non-Competition.
Consultant
agrees that he shall not, during the Term and for one year subsequent thereto
directly or indirectly, engage or be interested in any business(es) that is
competitive with the business being conducted by the Company through the
consulting Term, without the express direction or written approval of the
Company.
(b)
Non-Solicitation.
Consultant
agrees that he will not, without the prior written consent of the Company,
for a
period of two years after the termination of employment, directly or indirectly
disturb, entice, or in any other manner persuade, any employee or consultant
of
the Company to discontinue that person’s or firm’s relationship with the Company
if the employee(s) and/or consultant(s) were employed by the Company at any
time
during the twelve (12) month period prior to the termination date.
Consultant
further agrees that he will not, for a period of two (2) years following the
termination of employment, contact or solicit orders, sales or business from
any
customer of the Company’s so as to induce or attempt to induce such customer to
cease doing business with the Company.
5.
Indemnification.
(a)
Company.
The
Company agrees to indemnify, defend, and shall hold harmless Consultant and/or
its agents, and to defend any action brought against said parties with respect
to any claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees to the extent that such action is based upon a claim that:
(i)
is true, (ii) would constitute a breach of any of Company's representations,
warranties, or agreements hereunder, or (iii) arises out of the negligence
or
willful misconduct of Company.
(b)
Consultant.
The
Consultant agrees to indemnify, defend, and shall hold harmless Company, its
directors, employees and agents, and defend any action brought against same
with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of
the
gross negligence or willful misconduct of Consultant.
(c)
Notice.
In
claiming any indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim, which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense, and
all negotiations relative to the settlement of any such claim. Any settlement
intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6.
Termination and Renewal.
(a)
Term.
This
Agreement shall become effective on the date first written above and terminate
twelve (12) months thereafter, unless terminated sooner in accordance with
Section 8(b), below (the “Term”). Unless
otherwise agreed upon in writing by Consultant and Company, this Agreement
shall
not automatically renew beyond its term.
(b)
Termination.
Either
party may terminate this Agreement upon thirty (30) calendar days written
notice, if the other party materially breaches any of its representations,
warranties or obligations under this Agreement. Except as may be otherwise
provided in this Agreement, such breach by either party will result in the
other
party being responsible to reimburse the non-defaulting party for all costs
incurred directly as a result of the breach of this Agreement, and shall be
subject to such damages as may be allowed by law including all attorneys' fees
and costs of enforcing this Agreement.
(c)
Termination and Payment.
Upon
any
termination or expiration of this Agreement, Company shall pay all unpaid and
outstanding fees, through the effective date of termination or expiration of
this Agreement. And upon such termination, Consultant shall provide and deliver
to Company any and all outstanding Services due through the effective date
of
this Agreement.
7.
Remedies
Should
Consultant at anytime materially
breach any of terms outlined in this Agreement, Company shall have the right
to
seek remedies, including but not limited to: i) a temporary restraining order
and permanent injunction; ii) liquidated damages; iii) cancellation of the
interests underlying the stock certificates.
8.
Miscellaneous.
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a)
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Independent
Contractor.
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Consultant
shall render all Services hereunder as an independent contractor and shall
not
hold himself out as an agent of Company. Nothing herein shall be construed
to
create or confer upon Consultant the right to make contracts or commitments
for
or on behalf of Company.
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b)
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Right
to Hire Sub-Consultants
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The
Parties agree that Consultant shall be authorized to hire sub-consultants only
with pre-notification and approval by the Company.
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c)
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Right
to Incur Expenses
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The
Parties agree that Consultant shall be entitled to reimbursement for ordinary
i.e. press releases and extraordinary expenses only with pre-notification and
approval by the Company before the expenses are incurred.
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d)
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Negative
Covenants
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Consultant
hereby covenants that at no
time will he provide any service that directly or indirectly promotes or
maintains a market for the Company’s securities nor act as a conduit for
distributing securities to the general public. Moreover, Consultant
will not provide certain services including but not limited to: acting as a
broker or dealer or arrange or effect mergers or circulate research to broaden
or sustain a market price.
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e)
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Rights
Cumulative; Waivers.
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The
rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or variation
in writing. Any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any other
such
right. Any defective or partial exercise of any of such rights shall
not preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of any
party shall in any way preclude such party from exercising any such right or
constitute a suspension or any variation of any such right.
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f)
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Benefit;
Successors Bound.
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This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
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g)
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Entire
Agreement.
|
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representations,
oral or written, express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth in this
Agreement. Any such negotiations, promises, or understandings shall
not be used to interpret or constitute this Agreement.
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h)
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Assignment.
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Neither
this Agreement nor any other benefit to accrue hereunder shall be assigned
or
transferred by either party, either in whole or in part, without the written
consent of the other party, and any purported assignment in violation hereof
shall be void.
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i)
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Amendment.
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This
Agreement may be amended only by an instrument in writing executed by all the
parties hereto.
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j)
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Severability.
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Each
part
of this Agreement is intended to be severable. In the event that any
provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and as
so
severed or modified, this Agreement shall continue in full force and
effect.
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k)
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Section
Headings.
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The
Section headings in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
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l)
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Construction.
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Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
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m)
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Further
Assurances.
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In
addition to the instruments and documents to be made, executed and delivered
pursuant to this Agreement, the parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
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n)
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Notices.
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Any
notice which is required or desired under this Agreement shall be given in
writing and may be sent by personal delivery or by mail (either (i) United
States mail, postage prepaid, or (ii) Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
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If
to Company:
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Better
Biodiesel Inc.
C/O
Xxxxx Xxxx
000
Xxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx,
XX
00000
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If
to Consultant:
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---------------------------------------
---------------------------------------
---------------------------------------
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o)
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Governing
Law.
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This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of Florida without reference to its conflicts of laws rules or
principles. Each of the parties consents to the exclusive
jurisdiction of the federal courts of the State of Florida in connection with
any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum non coveniens, to the
bringing of any such proceeding in such jurisdictions.
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p)
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Consents.
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The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of such party.
Unless
provided otherwise within this Agreement, it is acknowledged by the Company
that: (i) the Consultant has consulted its own counsel on all aspects of this
Agreement; and (ii) the Company has not made any representations to the
Consultant to induce it to enter into this Agreement.
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q)
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Survival
of Provisions.
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The
provisions contained in paragraphs 3, 4, 5 and 8(b) of this Agreement shall
survive the termination of this Agreement.
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r)
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Execution
in Counterparts.
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This
Agreement may be executed via facsimile and in any number of counterparts,
each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
have
agreed to and accepted the terms herein on the date written above.
CLIENT:
BETTER
BIODIESEL INC..
By:
Xxxxx X.
Xxxx
Its:
Director
Authorized Officer
CONSULTANT:
CAMBRDIGE
PARTNERS, LLC
By:___________________________
[Print
Name]
Its:_____________________
