CONSULTING SERVICES AGREEMENT
Exhibit
10.12
THIS
CONSULTING SERVICES AGREEMENT (the “Agreement”) is entered into on January 18,
2008 between Better Biodiesel,
Inc. (Better Biodiesel), a Colorado corporation, having its
principal place of business at ___________________________________ (“Company”)
and Xxxxx Xxxxx, having a principal address at 00000 Xxxx Xxxxxx Xx., Xxxxxxxxx
XX 00000 (“Consultant”).
WHEREAS,
the Company desires to retain the services of Consultant as described herein
and
Consultant desires to provide such services for the consideration set forth
below and for such other mutual promises and consideration received the Company
and Consultant hereby enter into this Agreement as follows:
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1.
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Services. The
Company retains Consultant to render to the Company the following
services
(the “Services”):
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a)
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Consultant
will provide advisory and consulting services to the Company in
conjunction with the development of the Company’s marketing plan, business
plan and goals.
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b)
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Consultant
shall provide advisory and consulting services alternatives for maximizing
the Company’s exposure to, and penetration of, its target
market.
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c)
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In
consultation with the Company, Consultant shall schedule and arrange
meetings and conferences, in person, by telephone, or other media,
for the
Company’s representatives and such third parties as the Consultant
believes will further the purposes of this Agreement. Said
meetings and conferences shall be with representatives of potential
strategic partners of the Company, marketing and media representatives
and
representatives of investment and banking advisory
services.
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d)
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It
is expressly agreed herein that the Company shall be responsible
for all
reasonable costs and necessary expenses incurred by Consultant, including
travel, mileage, duplicating and communication expenses. The Company
shall
reimburse Consultant for all such expenses with thirty (30) days,
subject
to submission by Consultant of reasonably satisfactory documentation.
Consultant shall be required to receive prior written approval from
the
Company’s Chief Financial Officer or a member of the Board.
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2.
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Compensation. As
consideration for Consultant’s performance of the Services, the Company
agrees to issue to Xxxxx Xxxxx 1,200,000 shares of the Company’s
restricted common stock (the “Shares”). Further, if requested
by Consultant, the Company shall at its sole expense, provide Consultant
with a written legal opinion regarding the tradability of such stock
upon
the termination of the period of restriction. The Company and
Consultant agree to the following:
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(i)
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Consultant
shall be entitled to “piggy-back” registration rights for the Shares 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 Company and its underwriters
to
reduce the number of shares proposed to be registered pro rata in
view of
market conditions. 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;
and
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(ii)
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The
following legend (or a legend substantially in the following form)
shall
be placed on certificates representing the Shares issued pursuant
to this
Section 2:
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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.
Additionally,
the Consultant understands that at the present time Rule 144 promulgated under
the Securities Act may not be relied upon for the resale or distribution of
the
securities issued pursuant to this Section 2, except and unless as to Rule
144(k) should Rule 144(k) become applicable to the Consultant, because the
Company does not file current or periodic reports with the Securities and
Exchange Commission or make information about the Company publicly
available. Moreover, there can be no assurance that the Company will
in the future file such reports or make publicly available such
information.
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3.
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Term
and
Termination. Subject to earlier termination, the term of
this agreement shall begin on the date set forth above and will continue
in full force and effect for a period of twelve (12)
months. Thereafter, the parties may renew this Agreement upon
mutually agreeable terms. Either party may terminate this
Agreement on thirty (30) calendar days written notice, or if prior
to such
action, 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
that 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. 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. Termination by
either party shall not result in the forfeiture by Consultant of
the
Shares or right to a written legal opinion regarding the tradability
of
the Shares.
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4.
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Independent
Contractor
Status. The parties agree and acknowledge that that this
Agreement shall not be construed so as to make either an employee
of the
other and neither party shall hold themselves out as
such. Neither party shall i) have the authority bind the other
to any contract, agreement, nor indenture; ii) be liable to any third
party for the acts of the other; nor iii) accept service of process
for
the other.
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5.
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Confidential
Information. It is agreed by the parties that Consultant
shall have access to, have disclosed to it, or otherwise obtain
Confidential Information about the Company. “Confidential
Information” shall mean
confidential, non-public or other proprietary information including,
without limitation, letters addressed from the Securities and Exchange
Commission to the Company, trade secrets, technical information,
including
algorithms, code, data, designs, documentation, drawings, formulae,
hardware, know-how, ideas, inventions, whether patentable or not,
photographs, plans, procedures, processes, reports, research, samples,
sketches, software, specifications, business information, including
customer and distributor names, marketing information, operations,
plans,
products, financial information, including pricing and other confidential
information that is disclosed under the terms of this Agreement by
the
Company or the Consultant. Consultant shall not disclose to, or
use for the benefit of, any third party, Confidential Information
it
receives without the prior written consent of the
Company. Information shall not be considered Confidential
Information if such information is i) already known to Consultant
at the
time it is obtained, ii) subsequently learned from an independent
third
party; or iii) available publicly.
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6.
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Confidentiality
of
Agreement. The parties shall not disclose to any third
person or entity, any portion of this Agreement except as necessary
for
the Consultant to provide the Services set forth in Section 1
herein. Neither party shall disclose the existence or terms of
this Agreement without first obtaining prior written approval of
the other
party which approval may be withheld by Consultant for any
reason. Neither party shall use the other’s name, logo,
trademarks, or service marks in any advertising, publicity releases,
or
any other materials without that party’s prior written approval, which
shall not be unreasonably withheld by the Company if Consultant determines
such use to be consistent with the performance of its Services described
herein.
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7.
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Best
Efforts. The parties agree that Consultant will utilize
its best efforts to provide the Services set forth in Section 1
above. The Company acknowledges and accepts that Consultant
does not and cannot promise or guarantee that any specific result
can or
will be achieved by the Consultant as a result of its performance
of the
Services set forth herein.
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8.
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Assignment. This
Agreement shall be assigned to and inure to the benefit of, and be
binding
upon, any successor to substantially all of the assets and business
of the
Company as a going concern, whether by merger, consolidation, liquidation
or sale of substantially all of the assets of the Company or
otherwise. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise)
to
all or substantially all of the business and/or assets of the Company
to
assume expressly and agree to perform this Agreement in the same
manner
and to the same extent that the Company would be required to perform
as if
no such succession had taken place; and, as used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any
successor
to its business and/or assets as aforesaid which assumes and agrees
to
perform this Agreement by operation of law, or otherwise; provided
that
for purposes of Section 8 hereof, the term “Company” shall mean the
Company as hereinbefore defined and any such transaction in which
this
Agreement is assigned to a successor may not expand or enlarge the
scope
of restrictions applicable to Consultant pursuant to this
Agreement. Consultant understands and agrees, however, that
this Agreement is exclusive and personal to him only, and, as such,
he
will neither assign nor subcontract all or part of his undertaking(s)
or
obligation(s) under the terms of this
Agreement.
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9.
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Suit/Jurisdiction. The
parties agree that any and all disputes rising out of or relating
to this
Agreement shall be submitted to the American Arbitration Association
(“AAA”) for binding and final resolution in accordance with the rules of
the AAA. The parties further agree that such arbitration shall
take place in Washington, as up to Consultant’s sole
discretion. Notwithstanding the foregoing, the parties shall
each retain the right to seek injunctive or equitable relief for
any
actual or threatened breach of Sections 5 and 6 of this
Agreement. In the event either party exercises its right to
seek injunctive or equitable relief, it shall do so in a court of
competent jurisdiction in the State of Washington or such other
jurisdiction as Consultant in its sole discretion shall
choose. The choice of law shall be the law of the State of
Washington. Without limitation of the foregoing, each party
acknowledges that it hereby waives the right to have disputes rising
out
of or relating to this Agreement resolved by jury
trial.
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10.
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Interpretation
of Agreement. This Agreement shall be interpreted in accordance
plain meaning of its terms and under the laws of the State of
Washington.
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11.
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Contents
of Agreement
and Amendments. This Agreement set forth the entire
agreement of the parties. No amendment or modification to this
Agreement shall be binding unless in writing and signed by both
parties.
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12.
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Counterparts;
Delivery
by Facsimile. This Agreement may be executed 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. Delivery of
this
Agreement may be effected by
facsimile.
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date and year first written above.
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CONSULTANT:
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COMPANY:
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Xxxxx
Xxxxx
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Print
Name
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Print
Name : ______________________
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Title:
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Title:
Chief Executive Officer
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Dated:
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Dated:
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