EXHIBIT 10.1
CONSULTING AGREEMENT
This AGREEMENT sets forth the terms and conditions upon which PageOne
Business Productions, LLC, a Delaware Limited Liability Company, ("PAGEONE") is
engaged by AmeriStar Corp, a Nevada Corporation, together with any successors
(collectively "AMSTAR") to effect a transaction ("the Transaction") intended to
merge or otherwise combine AMSTAR with a United States reporting company and for
related matters.
1.0 SERVICES PROVIDED.
Following its engagement, PAGEONE and its affiliates will:
1.1. Advise AMSTAR on the structure of the Transaction and actions to be
taken by AMSTAR in preparation for the completion of the Transaction;
1.2. Merge AMSTAR or exchange its stock with or assist in transferring its
assets into a United States reporting company ("the Business Combination"),
which is or will become a reporting company underss.12(g) of the Securities
Exchange Act of 1934 ("xxx 0000 Xxx"), as amended;
1.3. Prepare, assist in preparing or review the agreement for the Business
Combination ("Merger Agreement");
1.4. Prepare and file with the Securities and Exchange Commission a Form 10
or Form 8-K describing the Business Combination with the Company ("the Company"
hereinafter shall mean the United States reporting company following the
Business Combination, unless the context requires otherwise);
1.5. Introduce the Company to one or more market makers for the purpose of
making an orderly and efficient market in the Company's securities;
1.6. Assist the Company with listing its securities on the NASD OTC
Bulletin Board or, if the Company meets such requirements, apply for admission
to quotation of the Company's securities on the NASDAQ Stock Market and/or their
listing on a regional or national stock exchange, if requested by the Company;
1.7. Take any other actions reasonably required of it to complete the
Transaction as contemplated by this agreement.
2.0 BUSINESS COMBINATION.
2.1. PAGEONE will provide, at its expense, a United States corporation with
audited financial statements showing no material assets or liabilities which is
or which PAGEONE will cause to become a reporting company underss.12(g) of the
Securities Exchange Act of 1934 ("the 1934 Act").
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2.2. AMSTAR, at its election, will merge into, exchange its stock with, or
transfer its assets to the United States corporation provided by PAGEONE. Upon
the effective date of the Business Combination, the officers and directors
selected by AMSTAR will become the officers and directors of such United States
corporation. The name of such United States corporation upon the effective date
of or following the Business Combination will be chosen by AMSTAR
2.3. The United States corporation will have authorized capital of
100,000,000 shares of common stock, $.001 par value per share, and
8,000,000shares of preferred stock, $.001 par value per share.
2.4. Upon the effective date of the Business Combination, there will be
issued and outstanding by the Company (i) 1,250,000 common shares issued to
PAGEONE or its designees and (ii) 23,750,000 common shares as designated by
AMSTAR.
3.0 PAYMENTS.
3.1. Subject to Section 5.2, AMSTAR will pay PAGEONE $240,000 for its
services and the services of its affiliates in regard to the Transaction.
Payment of this amount will be made $20,000 monthly commencing on the first day
of the month following the effective date of the Business Combination; provided,
however, that if PAGEONE fails to carry out its obligations hereunder, AMSTAR
need not make any further payments to PAGEONE.
3.2. AMSTAR will not at any time take or allow any action (whether by
reverse stock split or otherwise) which would have the effect of reducing the
absolute number of common shares owned or to be owned by PAGEONE or its designee
under this agreement.
4.0 EXPENSES.
4.1. PAGEONE will bear its expenses incurred in regard to the Transaction,
including, without limitation, travel, telephone, duplication costs, and
postage.
4.2. AMSTAR will pay its own and third-party expenses (other than those of
PAGEONE) including, without limitation, Federal, state and NASDAQ filing fees,
underwriting costs, corporate financial relations, accounting fees, duplicating
costs and other expenses of the Company.
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5.0 AGREEMENT TO COMPLETE TRANSACTIONS.
5.1. AMSTAR agrees that it will timely take all steps necessary to complete
the Transaction to include, without limitation, causing audited financial
statements to be prepared in proper form for AMSTAR; obtaining consents of the
Board of Directors and the shareholders of AMSTAR, as required; causing all
necessary documents to be properly and timely prepared, executed, approved or
ratified, and filed, as appropriate; making timely and fully all required
payments related to the registration and listing of the Company's securities for
public trading, including filing fees; and timely taking all other actions
reasonably required of it to complete the Transactions.
5.2. In the event that at any time AMSTAR determines not to continue with
the Transaction, PAGEONE hereby grants to AMSTAR the right to buyout the
interest of PAGEONE in this agreement on the terms contained herein, in which
case PAGEONE agrees not to seek specific enforcement of this agreement. In the
event that AMSTAR elects not to continue with the Transaction (or if AMSTAR does
not timely take all such steps and do all such things as may be reasonably
required of it to complete the Transaction) PAGEONE will be entitled to (i)
retain the securities in AMSTAR acquired or to be acquired by PAGEONE or its
affiliates under this agreement as though the Business Combination had occurred
and (ii) receive in full all payments to be due to it or its affiliates through
and upon completion of the Transaction as though those events had occurred;
provided, however, that PAGEONE will not be entitled to retain any AMSTAR
securities, nor receive any payment under this paragraph if the failure to
complete the Transaction is due solely to the actions or failure to act by
PAGEONE or its affiliates. Upon payment of the buyout fee provided for herein,
all obligations of the parties under this agreement will cease except for
obligations which expressly or by their nature survive termination.
5.3. PAGEONE represents and warrants that it will timely take all steps
reasonable and necessary to complete the Transaction and to cause the securities
of the Company to trade in the United States secondary market..
6.0 PERFORMANCE OF SERVICES BY OTHERS.
From time to time, the achievement of certain results desired by the
Company, including the promotion of interest in its public securities, may be
enhanced by the services of other parties. These parties may include
consultants, advertising agencies, financial analysts and similar persons who
may, directly or indirectly, assist in creating interest in the Company's
securities. All compensation, costs and expenses of such parties, if engaged by
the Company, will be borne by it.
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7.0 ACTIONS AND UNDERSTANDINGS FOLLOWING THE BUSINESS COMBINATION.
7.1. AMSTAR understands the obligations and responsibilities that will
arise in regard to its becoming a reporting company and the trading of its
securities in the public market. AMSTAR understands that in order to achieve the
greatest market interest in its securities it, its officers and its directors,
all or some, will be required to continuously interact with the financial
community. This interaction will include, without limitation, timely filing of
reports under the 1934 Act, including audited financial statements; annual
reports to shareholders and shareholder meetings; issuing periodic press
releases, when appropriate; and meetings and discussions with existing and
prospective brokers, market makers, investment bankers and institutions.
7.2. AMSTAR understands that the completion of the Transactions will not,
in itself, result in capital investment in the Company. The public status of the
Company and its introduction to market makers and others in the financial
community may result in investment interest. However, investment interest will
depend upon the success of the Company, market conditions and other factors over
which neither PAGEONE, nor its affiliates, have any control.
7.3. AMSTAR understands that the ultimate judgment of the financial
community of the investment merits of the Company will depend upon the Company's
ability to successfully carry out its business plans and operations, to operate
at a profit and similar business considerations. AMSTAR represents in good faith
that it currently has no reason to believe that it will not be able to complete
the Transactions and to achieve its business objectives.
8.0 COMPLIANCE WITH SECURITIES LAW.
Now and following the Business Combination, as applicable, AMSTAR
represents and warrants that:
8.1. AMSTAR and its affiliates will at all times observe and comply with
Federal and State securities laws, rules and regulations incident to the
issuance and trading of the securities of the Company.
8.2. AMSTAR and its affiliates will furnish all information and documents
concerning it and its affiliates required for the preparation and filing of a
Form 8-K and/or Form 10-KSB by the Company and will assure that such information
is complete and accurate and does not contain any material misstatement or omit
any material information. Toward that end and in order to permit PAGEONE or its
designees to assist in the preparation of Form 8K and/or Form 10-KSB, AMSTAR and
its affiliates will timely provide all requested information and documents,
including officers' and directors' questionnaires.
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8.3. AMSTAR and its affiliates will not at any time knowingly engage in any
activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within its
control to prohibit any officer, director, other affiliate, agent or employee
from engaging in such conduct.
8.4. The Company will not at any time issue securities registered on Form
S-8 or issued pursuant to Regulation S of the General Rules and Regulations of
the Securities and Exchange Commission without (i) prior written notification to
PAGEONE and (ii) a written opinion of qualified counsel that the issuance of
such securities will violate any law, rule, or regulation under the Securities
Act of 1933 or the Securities Exchange Act of 1934.
8.5. For not less than thirty-six (36) months following execution of this
agreement, the Company will timely make all required Federal, state and other
filings necessary to allow the public trading of the Company's securities and,
if the Company's securities are then quoted on the NASDAQ Stock Market or listed
on any regional or national exchange, will take all actions necessary to
maintain such status for the Company's securities.
8.6. During the term of this agreement, PAGEONE shall have the right to
enforce the provisions of this paragraph and to seek damages for any violation
thereof by the Company.
Now and following the Business Combination, as applicable, PAGEONE
represents and warrants that:
8.7. PAGEONE and its affiliates will at all times observe and comply with
Federal and State securities laws, rules and regulations incident to the
issuance and trading of the securities of the Company.
8.8. PAGEONE and its affiliates will not at any time knowingly engage in
any activity which would constitute a prohibited market manipulation of the
securities of the Company and will take all steps reasonably required within its
control to prohibit any officer, director, other affiliate, agent or employee
from engaging in such conduct.
9.0 NOTICES.
Any notices required or permitted under this agreement shall be deemed to
have been given when delivered in writing by hand, certified mail (return
receipt requested) or commercial courier, such as FedEx, to the following
addresses or to such other addresses as may have been given to each party in the
manner provided for in this paragraph.
In the case of AMSTAR, to:
AmeriStar Corp.
c/o AmeriStar Network, Inc.
000 Xxxxx Xxxx Xxxxx, Xxxxx X-000
Xx. Xxxxxx, XX 00000
To the Attention of its Chairman
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In the case of PAGEONE to
PageOne Business Productions, LLC
000 Xxx xx xx Xxx , Xxxxx X-0
Xxxxxxx Xxxxxxxxx, XX 00000
To the Attention of its Managing Member
10.0 ARBITRATION.
10.1.SCOPE. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the state of California.
10.2. CONSENT TO JURISDICTION, SITUS AND JUDGMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration within the state of California. Any award in
arbitration may be entered in any domestic or foreign court having jurisdiction
over the enforcement of such awards.
10.3.APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the state of California, determined without regard to
its provisions which would otherwise apply to a question of conflict of laws.
10.4.DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion, allow
the parties to make reasonable disclosure and discovery in regard to any matters
which are the subject of the arbitration and to compel compliance with such
disclosure and discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the Federal Rules
of Civil Procedure, as they then exist, as may be modified by the arbitrator
consistent with the desire to simplify the conduct and minimize the expense of
the arbitration.
10.5.RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
10.6.FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable, except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
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10.7.MEASURE OF DAMAGES. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and/or securities issued or to be
issued and no claims shall be made by any party or affiliate for lost profits,
punitive or multiple damages.
10.8.COVENANT NOT TO XXX. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
10.9.INTENTION. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this agreement or any other matter, from whatever cause, based on
whatever law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
10.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
11.0 ASSIGNMENT.
In order to better carry out the Transactions, PAGEONE may assign all or
parts of this agreement provided that the assignee agrees to all the terms and
conditions of this agreement pertaining to such assignment. An assignment will
not relieve PAGEONE of any of its obligations under this agreement.
12.0 CONFIDENTIALITY.
As a result of entering into this agreement AMSTAR will have access to
information which PAGEONE regards as confidential and proprietary regarding
PAGEONE's methods of carrying out the Transactions (collectively the "Business
of PAGEONE"). AMSTAR agrees that it will not, except as reasonably required
pursuant to this Agreement, by law or the rules or regulations of any state or
federal securities commission, use itself, or divulge, furnish, or make
accessible to any person any knowledge, know-how, techniques, or information
with respect to PAGEONE or the Business of PAGEONE without the prior written
agreement of PAGEONE.
13.0 TERMINATION.
PAGEONE may terminate this agreement, without further obligation or
liability, at any time if the Company fails to meet its obligations under this
agreement in a manner which would constitute a material breach.
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14.0 MISCELLANEOUS.
14.1. COVENANT OF FURTHER ASSURANCES. The parties agree to take any further
actions and to execute any further documents which may from time to time be
necessary or appropriate to carry out the purposes of this agreement.
14.2. SCOPE OF AGREEMENT. This agreement constitutes the entire
understanding of the parties. No undertakings, warranties or representations
have been made other than as contained herein, and no party shall assert
otherwise. This agreement may not be changed or amended orally.
14.3. CURRENCY. All references to currency in this agreement are to United
States Dollars.
14.4. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
15.0 EFFECTIVE DATE.
The effective date of this agreement is January 25, 2000.
IN WITNESS WHEREOF, the parties have approved and executed this
agreement.
PageOne Business Productions, LLC
/s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx, Managing Member
AmeriStar Corp.
/s/ O. Xxxxxxx Xxxxxxxx
-------------------------------------
O. Xxxxxxx Xxxxxxxx, Chairman of the Board
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