EXHIBIT 10.13
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement"), is made and entered into as of
this 30th day of June, 2007 by and between BlueStar Health, Inc., a Colorado
corporation ("BlueStar" or the "Company") and Xxxxxxx X. Xxxxxxxxx, an
individual ("Greenwood" 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.
WHEREAS, Consultant has been engaged by the Company previously under a
Consulting Agreement dated July 1, 2006 between the Company and ALO Investments,
LLC for which the Consultant has not received agreed upon compensation or
documented expense reimbursement.
FURTHER, both parties agree the accumulated unpaid compensation and expense
reimbursement shall carryover and will be due and payable to Consultant on the
same terms as stated in this agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto hereby agree as follows:
1. CONSULTING SERVICES
The Company hereby authorizes, appoints and engages the Consultant, and
Consultant agrees to be available to initially act as the sole Company officer
and director over the next eighteen (18) months retroactive from July 1, 2006
following the date of this Agreement; or, until such time as the Company
completes a merger or otherwise successfully combines with a going concern at
which time Consultant will take on a role mutually agreed to by all parties at
that time. The Company will expect Consultant to perform general and specific
duties listed below:
(a) Explore and select merger and acquisition, re-capitalization, and
restructuring option for the Company;
(b) Assist in getting the Company listed on a national securities exchange,
and
(c) Act as a liaison between the Company and the regulators, creditors,
shareholders, lawyers and accountants concerning the Company's ongoing
obligations as a reporting company;
(d) Duties:
(i) Serve as sole director and Chairman of the Board of BlueStar
Health, Inc. until such time as BlueStar has merged with another
business.
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(ii) Serve as President, Treasurer, and Secretary of BlueStar of
BlueStar Health, Inc. until such time as BlueStar has merged
with another business.
(iii) Take actions required to bring BlueStar Health, Inc. into
compliance with all regulatory filings including but not limited
to SEC financial filings, State Franchise filings, Federal taxes
and the NASD.
(iv) Search, identify and merge with a business that upon execution
of its business plan will add value to BlueStar shareholders.
Throughout this Agreement, the term "Consultant" shall include any and all
employees or independent contractors of Consultant that performs services for
the Company.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect as of the date hereof
retroactive from July 1, 2006 and extend for a period of eighteen (18) months.
At the end of the original term, this Agreement will automatically renew for
additional twelve (12) month periods with the COMPANY paying CONSULTANT the same
compensation as the initial eighteen (18) month period unless this Agreement is
terminated by COMPANY upon thirty (30) days written notice before the end of any
then current contract period.
3. COMPENSATION TO CONSULTANT
The Consultant's compensation for the Consulting Services shall be:
(a) Monthly fee of $15,000. The fee shall be accrued by the company but payable
in shares of BlueStar Health, Inc. (XXXX.XX: BLSH) following completion of
all then due SEC financial filings
(b) Success fee of One Million (1,000,000) shares of BlueStar Health, Inc.
common stock will be paid to consultant upon successful completion of a
successful merger or other form of business combination with an operating
company.
(c) Payment of fees described in Section 3(a) and (b) above, will be in shares
of common stock (the "Shares") of BlueStar Health 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 registration of the Company
with the Securities and Exchange Commission ("SEC")
4. EXPENSE REIMBURSEMENT
Company agrees to reimburse Consultant reasonable expenses related to
travel, lodging, and business supplies which the Consultant shall provide
documentation evidencing expenses incurred. Consultant will be subject to and
agrees to use Company's written expense policy. Expenses will be accrued by the
Company when submitted and payable in cash when funds are available or on the
same terms Consultant is to receive payment for fees earned as set out in
Section 3(a) above.
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5. CONFIDENTIALITY
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.
6. EVENT OF DEFAULT
If the Consultant does not receive the Shares identified in 3(a) and (b)
above 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) Two
Hundred Thousand Dollars ($200,000) (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.
7. TERMINATION
The Company shall have the right to terminate this Agreement upon 90 days
written notice. The Company agrees that should such an event occur Company will
delivered all accrued to date shares (for fees described in 3(a) above and all
outstanding expenses submitted by the Consultant plus a severance payment of One
Hundred Thousand Dollars ($100,000). 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.
8. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
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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9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
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.
10. INDEPENDENT CONTRACTOR
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.
11. NOTICES
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.
If to the Company: BlueStar Health, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
Facsimile No.: (000) 000-0000
If to Consultant: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
12. ASSIGNMENT
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.
13. CHOICE OF LAW AND VENUE
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
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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 Fort Bend,
State of Texas.
14. ENTIRE AGREEMENT
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.
15. SEVERABILITY
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.
16. CAPTIONS
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.
17. COUNTERPARTS
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.
18. MODIFICATION
No change, modification, addition, or amendment to this Agreement shall be
valid unless in writing and signed by all parties hereto.
19. ATTORNEYS FEES
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.
"Company" "Consultant"
BlueStar Health, Inc.
A Colorado corporation
By: _____________________________ By: ______________________________
Xxxxxxx X. Xxxxxxxxx, President Xxxxxxx X. Xxxxxxxxx
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