Exhibit 4.4
XXXXXXX XXXXX
000 X. Xxxxxxx Xxxx, Xxxxx
Xxx Xxxxx, Xxxxxx, 00000
FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the
"Agreement") is entered this 17th day of October, 2001 by
and between XXXXXXX XXXXX ("Consultant"), a Nevada
individual, and BLUE STAR COFFEE, INC. (OTC BB:BSCF)
("Client"), a Nevada , with reference to the following:
RECITALS
A. The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the
Consultant's experience, skills, abilities, knowledge, and
background to facilitate long range strategic planning, and
to advise the Client in business and/or financial matters
and is therefore willing to engage the Consultant upon the
terms and conditions set forth herein.
B. The Consultant agrees to be engaged and retained by the
Client and upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
1. ENGAGEMENT. Client hereby engages Consultant on a non-
exclusive basis, and Consultant hereby accepts the
engagement to become a financial consultant to the Client
and to render such advice, consultation, information, and
services to the Directors and/or Officers of the Client
regarding general financial and business matters including,
but not limited to:
A. Reorganizations, mergers, divestitures, and due diligence
studies;
B. Capital sources and the formation of financial
transactions;
C. Banking methods and systems;
D. Guidance and assistance in available alternatives to
maximize shareholder value;
E. Periodic preparation and distribution of research reports
and information to the broker/dealer and investment banking
community.
F. Press Release preparation and distribution.
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It shall be expressly understood that Consultant shall have
no power to bind Client to any contract or obligation or to
transact any business in Client's name or on behalf of
Client in any manner and Client is not obligated to accept
any recommendations or close any transactions submitted by
the Consultant.
2. TERM. The term ("Term") of this Agreement shall commence
on the date hereof and continue for twelve (12) months. The
Agreement may be extended upon agreement by both parties,
unless or until the Agreement is terminated. Either party
may cancel this Agreement upon five days written notice in
the event either party violates any material provision of
this Agreement and fails to cure such violation within five
(5) days of written notification of such violation from the
other party. Such cancellation shall not excuse the breach
or non-performance by the other party or relieve the
breaching party of its obligation incurred prior to the date
of cancellation (see item 10 "Notices").
3. DUE DILIGENCE. The Client shall supply and deliver to the
Consultant all information relating to the Client Company's
business as may be reasonably requested by the Consultant to
enable the Consultant to make an assessment of the Company
and its business prospects and provide the Consulting
Services.
4. COMPENSATION AND FEES. As consideration for Consultant
entering into this Agreement, Client and Consultant shall
agree that the Client shall issue certificates representing
an aggregate of twenty-five thousand (25,000) shares of common
stock (the "Shares"). The shares issued to the Consultant on
the date hereof shall have the status of "restricted"
securities as the term is defined by Rule 144 under the
Securities Act of 1933, as amended. These shares are non-
cancelable and shall have piggyback registration rights upon
the first SEC registration filed by the Client.
The Shares, when issued to Consultant, will be duly
authorized, validly issued and outstanding, fully paid and
nonassessable and will not be subject to any liens or
encumbrances.
Securities shall be issued to Consultant in accordance with
a mutually acceptable plan of issuance as to relieve
securities or Consultant from restrictions upon
transferability of shares in compliance with applicable
registration provisions or exemptions.
5. REPRESENTATIONS, WARRANTS AND COVENANTS. The Client
represents, warrants and covenants to the Consultant as
follows:
A. The Client has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the
transactions which are provided for herein. The execution of
this Agreement by the Client and its delivery to the
Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and
authorized by all necessary action by the Client's Board of
Directors and no
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further authorization shall be necessary on the part of the
Client for the performance and consummation by the Client of
the transactions which are contemplated by this Agreement.
B. The business and operations of the Client have been and
are being conducted in all material respects in accordance
with all applicable laws, rules and regulations of all
authorities which affect the Client or its properties,
assets, businesses or prospects. The performance of this
Agreement shall not result in any breach of, or constitute a
default under, or result in the imposition of any lien or
encumbrance upon any property of the Client or cause an
acceleration under any arrangement, agreement or other
instrument to which the Client is a party or by which any of
its assets are bound. The Client has performed in all
respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to
the terms of any such agreement, contract or commitment.
6. EXCLUSIVITY; PERFORMANCE; CONFIDENTIALITY. The services
of Consultant hereunder shall not be exclusive, and
Consultant and its agents may perform similar or different
services for other persons or entities whether or not they
are competitors of Client. The Consultant agrees that it
will, at all times, faithfully and in a professional manner
perform all of the duties that may be reasonably required of
the Consultant pursuant to the terms of this Agreement.
Consultant shall be required to expend only such time as is
necessary to service Client in a commercially reasonable
manner. The Consultant does not guarantee that its efforts
will have any impact upon the Company's business or that
there will be any specific result or improvement from the
Consultant's efforts. Consultant acknowledges and agrees
that confidential and valuable information proprietary to
Client and obtained during its engagement by the Client,
shall not be, directly or indirectly, disclosed without the
prior express written consent of the Client, unless and
until such information is otherwise known to the public
generally or is not otherwise secret and confidential.
7. INDEPENDENT CONTRACTOR. In its performance hereunder,
Consultant and its agents shall be an independent
contractor. Consultant shall complete the services required
hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant
and which shall not be subject to the control or supervision
of Client, except as to the results of the work. Client
acknowledges that nothing in this Agreement shall be
construed to require Consultant to provide services to
Client at any specific time, or in any specific place or
manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as
required with respect to compensation paid to an employee.
8. ARBITRATION AND FEES. Any controversy or claim arising
out of or relating to this Agreement, or breach thereof, may
be resolved by mutual agreement; or if not, shall be settled
in accordance with the Arbitration rules of the American
Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall
be enforceable as a judgment in any court of competent
jurisdiction. The prevailing party in such arbitration or
other proceeding shall be entitled, in addition to such
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other relief as many be granted, to a reasonable sum as and
for attorney's fees in such arbitration or other proceeding
which may be determined by the arbitrator or other officer
in such proceeding. If collection is required for any
payment not made when due, the creditor shall collect
statutory interest and the cost of collection, including
attorney's fees whether or not court action is required for
enforcement.
9. NOTICES. Any notice or other communication required or
permitted hereunder must be in writing and sent by either
(i) certified mail, postage prepaid, return receipt
requested and First Class mail, (ii) overnight delivery with
confirmation of delivery, or (iii) facsimile transmission
with an original mailed by first class mail, postage
prepaid, addressed as follows:
If to the Client: Blue Star Coffee, Inc.
Attention: Xxx Xxxxx
000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
If to Consultant: Xxxxxxx Xxxxx
000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx, 00000
or in each case to such other address as shall have last
been furnished by like notice. If mailing is impossible due
to an absence of postal service, and other methods of
sending notice are not otherwise available, notice shall be
hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the
date so mailed or delivered, as the case may be; provided,
however, that any notice sent by facsimile shall be deemed
to have been given as of the date sent by facsimile if a
copy of such notice is also mailed by first class mail on
the date sent by facsimile; if the date of mailing is not
the same as the date of sending by facsimile, then the date
of mailing by first class mail shall be deemed to be the
date upon which notice given.
10. MISCELLANEOUS. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver
of any other provision and no waiver shall constitute a
continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No
supplement, modification, or amendment of this Agreement
shall be binding unless executed in writing by all parties.
This Agreement constitutes the entire agreement between the
parties and supersedes any prior agreements or negotiations.
There are no third party beneficiaries of this Agreement.
11. COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have entered into
this Agreement on the date first written above.
"Client"
Signature: /s/ Xxx Xxxxx
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Print with Title: Xxx Xxxxx, President, CEO
Company: Blue Star Coffee, Inc.
"Consultant"
Signature: /s/ Xxxxxxx Xxxxx
--------------------------------
Print with Title: Xxxxxxx Xxxxx
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