CONSULTING AGREEMENT
This
Consulting Agreement (this “Agreement”),
is
made and entered into as of this 13th day of February, 2006 by and between
Bluestar
Health, Inc., a Colorado corporation (“Bluestar”
or
the
“Company”)
and
Xxxxxx
Xxxxxxx,
an
individual (“Xxxxxxx”
or
the
“Consultant”).
RECITALS
WHEREAS,
the Company wishes to engage the consulting services of Consultant;
and
WHEREAS,
Consultant wishes to provide the Company with consulting services.
NOW,
THEREFORE, in consideration of the mutual promises herein contained, the parties
hereto hereby agree as follows:
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1.
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CONSULTING
SERVICES
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The
Company hereby authorizes, appoints and engages the Consultant, and Consultant
agrees to be available to consult with the Company’s officers and directors over
the next twelve (12) months following the date of this Agreement, on projects
agreed to in writing by the parties. The Company may request Consultant to
work
on projects in the following areas (the “Consulting
Services”):
(a) Provide
counsel regarding mergers and acquisitions, recapitalizations, and
restructurings;
(b) Assist
in
getting the Company listed on a national securities exchange, and
(c) Act
as a
liaison between the Company and the lawyers and accountants concerning the
Company’s ongoing obligations as a reporting company;
Throughout
this Agreement, the term “Consultant” shall include any and all employees or
independent contractors of Consultant that performs services for the
Company.
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2.
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TERM
OF AGREEMENT
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This
Agreement shall be in full force and effect as of the date hereof and extend
for
a period of twelve (12) months. At
the
end of the twelve month term, this Agreement will automatically renew for
additional twelve (12) month periods with the COMPANY paying CONSULTANT the
same
compensation as the initial twelve (12) month period unless this Agreement
is
terminated by COMPANY upon thirty (30) days written notice before the end of
any
twelve (12) month period.
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3.
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COMPENSATION
TO CONSULTANT
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(a) The
Consultant’s compensation for the Consulting Services shall be One Million
(1,000,000) shares of common stock (the “Shares”) of the Company that will be
registered on a Form S-8 and issued to the Consultant no later than thirty
(30)
days (the “Compensation Delivery Date”) after the closing of the transactions
contemplated by that certain Asset Purchase Agreement dated February 9, 2006
by
and between Bluestar, on the one hand, and Gold Leaf Homes, Inc., a Texas
corporation (“Gold Leaf”), and Xxx Xxxxxx, the sole shareholder of Gold Leaf, on
the other hand.
If
the
Consultant does not receive the Shares on or before the Compensation Delivery
Date, the Consultant shall be entitled to elect to receive from the Company
either (i) the Shares or (ii) Seven Hundred Fifty Thousand Dollars ($750,000)
(the “Cash Payment”) in lieu of the Shares. The Cash Payment shall be secured by
a security interest in all of the assets of the Company.
(b) If
the
Company lists securities on a national securities exchange, including the NASDAQ
Small Cap Market, during the term of this Agreement, the Company shall issue
Two
Million (2,000,000) shares of common stock (the “Bonus Shares”) of the Company
that will be registered on a Form S-8 and issued to the Consultant no later
than
thirty (30) days (the “Bonus Delivery Date”) after the Company’s securities
become listed.
Consultant
understands that NO DEDUCTION FOR FEDERAL, STATE OR OTHER GOVERNMENTAL
SUBDIVISION TAXES OR CHARGES OF ANY TYPE WILL BE MADE FROM THE AMOUNT DUE
CONSULTANT UNDER THE TERMS OF THIS AGREEMENT. CONSULTANT FULLY AND COMPLETELY
UNDERSTANDS THAT IT IS SOLELY AND TOTALLY RESPONSIBLE FOR THE PAYMENT OF ALL
SUCH TAXES OR CHARGES. At the end of the calendar year, Consultant shall receive
a Form 1099 notifying the Internal Revenue Service of all compensation paid
to
Consultant by the Company.
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4.
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CONFIDENTIALITY
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Consultant
will maintain in confidence and will not, directly or indirectly, disclose
or
use, either during or after the term of this Agreement, any proprietary
information or confidential information or know-how belonging to the Company,
whether or not it is in written or permanent form, except to the extent
necessary to perform the services under this Agreement. On termination of
Consultant’s services to the Company, or at the request of the Company before
termination, Consultant shall deliver to the Company all material in
Consultant’s possession relating to the Company’s business. The obligations
concerning proprietary information extend to information belonging to customers
and suppliers of the Company about whom the Consultant may have gained knowledge
as a result of performing services for the Company.
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5.
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TERMINATION
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The
Company shall have the right to terminate this Agreement at any time in the
event of the death, bankruptcy, insolvency, or assignment for the benefit of
creditors of the Consultant. Consultant shall have the right to terminate this
Agreement at any time if the Company fails to comply with the terms of this
Agreement, including without limitation its responsibilities for compensation
as
set forth in this Agreement. Other than as described herein, this Agreement
can
only be terminated in a writing signed by both parties.
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6.
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REPRESENTATIONS
AND WARRANTIES OF
CONSULTANT
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Consultant
represents and warrants to and agrees with the Company that:
(a) This
Agreement has been duly authorized, executed and delivered by Consultant. This
Agreement constitutes the valid, legal and binding obligation of Consultant,
enforceable in accordance with its terms, except as rights to indemnity
hereunder may be limited by applicable federal or state securities laws, and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditor's rights generally;
and
(b) The
consummation of the transactions contemplated hereby will not result in any
breach of the terms or conditions of, or constitute a default under, any
agreement or other instrument to which Consultant is a party, or violate any
order, applicable to Consultant, of any court or federal or state regulatory
body or administrative agency having jurisdiction over Consultant or over any
of
its property, and will not conflict with or violate the terms of Consultant’s
current employment or any other arrangements to which Consultant is a
party.
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7.
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE
COMPANY
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The
Company hereby represents, warrants, covenants to and agrees with Consultant
that:
This
Agreement has been duly authorized, and executed by the Company and is a binding
obligation of the Company, enforceable in accordance with its terms, except
as
rights to indemnity hereunder may be limited by applicable federal or state
securities laws, except in each case as such enforceability may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting creditor's
rights generally.
The
Company hereby agrees to pay the following expenses of Consultant:
(a) Office
overhead. The Company shall pay $6,000 per month to Consultant from April 1,
2006 through the remainder of the term of this Agreement for office space and
operational expenses, paid in stock or cash at 100% of the closing bid price
on
the date due at Consultant’s election.
(b) Healthcare
benefits. The Company shall pay for complete healthcare benefits for Consultant
and Consultant’s family for a period of twenty four (24)
months.
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(c) Business
expenses. The Company shall pay Consultant in advance for all reasonable
business expenses, including, but not limited to, a $5,000 budget for each
traveling engagement. In the event a traveling engagement is extended, the
Company shall cover additional reasonable expenses.
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8.
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INDEPENDENT
CONTRACTOR
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Both
the
Company and the Consultant agree that the Consultant will act as an independent
contractor in the performance of his duties under this Agreement. Nothing
contained in this Agreement shall be construed to imply that Consultant, or
any
employee, agent or other authorized representative of Consultant, is a partner,
joint venturer, agent, officer or employee of the Company. Neither party hereto
shall have any authority to bind the other in any respect vis a vis any third
party, it being intended that each shall remain an independent contractor and
responsible only for its own actions.
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9.
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NOTICES
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Any
notice, request, demand, or other communication given pursuant to the terms
of
this Agreement shall be deemed given upon delivery, and may only be delivered
or
sent via hand delivery, facsimile, or by overnight courier, correctly addressed
to the addresses of the parties indicated below or at such other address as
such
party shall in writing have advised the other party.
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If
to the Company:
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Bluestar
Health, Inc.
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00000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
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Xxxxx
Xxxx, XX, 00000
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Attn:
President
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Facsimile
No.: (000) 000-0000
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If
to Consultant:
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Xxxxxx
Xxxxxxx
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Facsimile
(___)
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10.
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ASSIGNMENT
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This
contract shall inure to the benefit of the parties hereto, their heirs,
administrators and successors in interest. This Agreement shall not be
assignable by either party hereto without the prior written consent of the
other.
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11.
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CHOICE
OF LAW AND VENUE
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This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Texas including all
matters of construction, validity, performance, and enforcement and without
giving effect to the principles of conflict of laws. Any action brought by
any
party hereto shall be brought within the County of Xxxxxx, State of
Texas.
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12.
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ENTIRE
AGREEMENT
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Except
as
provided herein, this Agreement, including exhibits, contains the entire
agreement of the parties, and supersedes all existing negotiations,
representations, or agreements and all other oral, written, or other
communications between them concerning the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings,
oral
or written, between and among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein.
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13.
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SEVERABILITY
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If
any
provision of this Agreement is unenforceable, invalid, or violates applicable
law, such provision, or unenforceable portion of such provision, shall be deemed
stricken and shall not affect the enforceability of any other provisions of
this
Agreement.
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14.
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CAPTIONS
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The
captions in this Agreement are inserted only as a matter of convenience and
for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Agreement or the relationship of the parties, and shall not affect
this Agreement or the construction of any provisions herein.
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15.
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COUNTERPARTS
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This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall together constitute one and the
same
instrument.
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16.
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MODIFICATION
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No
change, modification, addition, or amendment to this Agreement shall be valid
unless in writing and signed by all parties hereto.
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17.
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ATTORNEYS
FEES
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Except
as
otherwise provided herein, if a dispute should arise between the parties
including, but not limited to arbitration, the prevailing party shall be
reimbursed by the non-prevailing party for all reasonable expenses incurred
in
resolving such dispute, including reasonable attorneys' fees.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the
date
first written above.
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“Company”
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“Consultant”
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Bluestar
Health, Inc.,
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a
Colorado corporation
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxxxx Xxxxxxx
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By: Xxxxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx
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Its: President
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/s/
Xxx Xxxxxx
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By: Xxx
Xxxxxx
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Its: Incoming
President
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