Exhibit 4.2
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT (this "Agreement"), dated
as of October 17, 2001, between Blue Star Coffee, Inc., a
Nevada corporation (the "Company"), and Xxxxxxx Xxxxx
("Consultant"), an individual.
WITNESSETH:
WHEREAS, Company desires to retain Consultant to consult and
advise the Company, and Consultant is willing to provide
such services:
NOW, THEREFORE, in consideration of the mutual undertakings
contained herein, the parties agree as follows:
Consulting Arrangement. The Company hereby engages
Consultant as an independent contractor and not as an
employee, to render consulting services to the Company as
hereinafter provided and Consultant hereby accepts such
engagement for a period commencing on October 17, 2001 and
ending on the October 14, 2002. Consultant agrees that
Consultant will not have any authority to bind or act on
behalf of the Company. Consultant shall at all times be an
independent contractor hereunder, rather than an agent,
coventurer, employee or representative of the Company. The
Company hereby acknowledges and agrees that Consultant may
engage directly or indirectly in other businesses and
ventures and shall not be required to perform any services
under this Agreement when, or for such periods in which, the
rendering of such services shall unduly interfere with such
other businesses and ventures, providing that such
undertakings do not completely preempt Consultant's
availability during the term of this Agreement. Neither
Consultant nor his employees will be considered by reason of
the provisions of this Agreement or otherwise as being an
employee of the Company or as being entitled to participate
in any health insurance, medical, pension, bonus or similar
employee benefit plans sponsored by the Company for its
employees. Consultant shall report all earnings under this
Agreement in the manner appropriate to its status as an
independent contractor and shall file all necessary reports
and pay all taxes with respect to such payments.
Services
1. Subject to the terms and conditions of this Agreement,
the Company hereby engages the Consultant, and Consultant
hereby accepts the engagement, to provide advice, analysis
and recommendations (the "Services") to the Company with
respect to the following:
A. Identifying prospective strategic partners and strategic
alliances;
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B. Corporate planning, strategy and negotiations with
potential strategic business partners and/or other general
business consulting needs as expressed by Client;
C. Business development and business advertising, including
coordinating live events;
D. Due diligence processes and capital structures and filing
issues;
E. Business strategies;
F. Corporate imaging advertising including print, online and
multimedia mediums;
G. Development of business compensation policies;
H. Periodic reporting as to developments concerning the
industry which may be relevant or of interest or concern to
the Client or the Client's business;
I. Developing and managing Strategic Planning issues;
J. Providing Project Management services for various
projects;
K. Assisting in the management of other outsource vendors;
L. Online content development and coordination for the
Client's web presence;
M. Provide management consulting services including:
analyzing historical operational performance, reviewing
operational performance of the Company on a monthly basis,
making recommendations to enhance the operational
efficiency.
N. Consulting on alternatives to enhance operational growth
of the Company;
O. Coordinating corporate administrative activities.
During the term of this Agreement, Consultant shall render
such consulting services as the Company from time to time
reasonably requests, which services shall include but not be
limited to those rendered by Consultant to Company prior to
the date hereof; provided that:
(a) To the extent practicable such services shall be
furnished only at such time and places as are mutually
satisfactory to the Company and Consultant; and
(b) Consultant shall devote as much time as needed in
performing such services and shall not be required to
perform any services hereunder while Consultant is on
vacation or suffering from an illness.
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P. Services expressly prohibited by the Client under the
terms of this Agreement include:
. Reorganizations, mergers, divestitures, and due
diligence studies;
. Capital sources and the formation of financial
transactions;
. Banking methods and systems;
. Guidance and assistance in available
alternatives to maximize shareholder value;
. Periodic preparation and distribution of
research reports and information to the
broker/dealer and investment banking community;
. Press Release preparation and distribution.
2. Compensation and Expenses. For the Services provided by
the Consultant, the Company (i) shall compensate the
Consultant by delivering to the Consultant, not later than
October 17, 2001, two hundred thirty thousand
(230,000) shares of the common stock of the Company ("Common
Stock") that is Freely Tradeable (as hereinafter defined).
"Freely Tradeable" means shares that may be sold at any time
by the Consultant free of any contractual or other
restriction on transfer and which have been appropriately
listed or registered for such sale on all securities markets
on any shares of the Common Stock are currently so listed or
registered; and (ii) the Company shall be responsible for
the payment of the reasonable out-of-pocket costs and
expenses of Consultant incurred prior to, or on or after the
date of this Agreement, in connection with its engagement
under this Agreement, including, but not limited to,
reasonable fees and disbursements of counsel for Consultant,
travel and related expenses, document production and
computer database charges. The Company shall reimburse
Consultant for such costs and expenses as they are incurred,
promptly after receipt of a request for reimbursement from
Consultant.
3. Successors and Assigns. This Agreement is binding upon
and inures to the benefit of the Company and its affiliates,
successors and assigns and is binding upon and inures to the
benefit of Consultant and his successors and assigns;
provided that in no event shall Consultant's obligations to
perform the Services be delegated or transferred by
Consultant without the prior written consent of the Company.
4. Term. This Agreement shall commence on the date hereof
and, unless sooner terminated in accordance with the
provisions of Section 6 hereof, shall expire on October 14,
2002. However, the Agreement may be extended by mutual
written consent.
5. Termination. Either the Company or Consultant may
terminate this Agreement for material breach upon at least
thirty (30) days prior written notice specifying the nature
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of the breach, if such breach has not been substantially
cured within the thirty (30) day period.
6. Independent Contractor Relationship. Consultant and the
Company are independent contractors and nothing contained in
this Agreement shall be construed to place them in the
relationship of partners, principal and agent,
employer/employee or joint ventures. Neither party shall
have the power or right to bind or obligate the other party,
nor shall it hold itself out as having such authority.
7. Indemnification. Company shall indemnify and hold
harmless the Consultant from and against any and all losses,
damages, liabilities, reasonable attorney's fees, court
costs and expenses resulting or arising from any third-party
claims, actions, proceedings, investigations, or litigation
relating to or arising from or in connection with this
Agreement, or any act or omission by Company.
8. Notice. For the purpose of this Agreement, notices and
all other communications provided for herein shall be in
writing and shall be deemed to have been duly given (i) when
delivered, if personally delivered, (ii) when sent by
facsimile transmission, when receipt therefore has been duly
received, or (iii) when mailed by United States registered
mail, return receipt requested, postage prepaid, or by
recognized overnight courier, addressed set forth in the
preamble to this Agreement or to such other address as any
party may have furnished to the other in any writing in
accordance herewith, except that notices of change of
address shall be effective only upon receipt.
9. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by
authorized officers of each party. No waiver by either party
hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly
in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be
governed by the internal laws of the State of Nevada. Any
controversy arising under or in relation to this Agreement
shall be settled by binding arbitration in Las Vegas, Nevada
in accordance with the laws of the State of Nevada and the
rules of the American Arbitration Association.
10. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and
the same instrument.
11. Severability. If in any jurisdiction, any provision of
this Agreement or its application to any party or
circumstance is restricted, prohibited or unenforceable,
such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction,
prohibition or unenforceability, without invalidating the
remaining provisions hereof and without affecting the
validity or enforceability of such provision in any other
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jurisdiction or its application to other parties or
circumstances. In addition, if any one or more of the
provisions contained in this Agreement shall for any reason
in any jurisdiction be held to be excessively broad as to
time, duration, geographical scope, activity or subject, it
shall be construed, by limiting and reduction it, so as to
be enforceable to the extent compatible with the applicable
law of such jurisdiction as it shall then appear.
IN WITNESS WHEREOF, this Consulting Agreement has been
executed by the Company and Consultant as of the date first
written above.
Signature of Contractor
Name: Xxxxxxx Xxxxx
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, 00000
Signature: /s/ Xxxxxxx Xxxxx
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Signature of Company
Name: Blue Star Coffee, Inc.
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, 00000
Signature: /s/ Xxx Xxxxx
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