EXHIBIT 10.1
[LIFESTREAM LOGO]
CONSULTING AGREEMENT
THIS AGREEMENT, made this _14_ day of __April__, 2006, between XXXXXXXXXXX X.
XXXX (herein "Consultant"), and LIFESTREAM TECHNOLOGIES, INC., a Nevada
corporation, with offices at 000 X. Xxxxxxxxxx Xxxx, Xxxxxxxx 0000, Xxxxx X,
Xxxx Xxxxx, XX 00000 (herein "Company").
1. Lifestream Technologies, Inc. (the "Company") agrees to hire you, Xxxxxxxxxxx
Xxxx (the "Consultant") to assist the Company is in the business of developing
and marketing its Cholesterol test device and other related products for both
consumers and professionals. Your agreement shall be for a fixed period
beginning April 14, 2006, and ending April 13, 2009.
2. Consultant will report to the Board of Directors and work directly with
senior management and function in a business development role and carry out all
necessary tasks for the success of the Company. Your duties as a consultant
shall be to head up Strategic Financing and oversight of Product Development,
with strategic responsibilities in corporate financing and oversight of the
Company's product offering, as well as other services that may be deemed
material to further business development pursuant to the business plan adopted
by the Board.
Consultant shall at all times be an independent contractor of the Company and,
except as expressly provided or authorized by this Agreement, shall have no
authority to act for or represent the Company. The Consultant shall be
responsible for the timely and professional performance of such services as
contemplated by this Agreement.
The Company recognizes that Consultant now renders and may continue to render
services to other clients, which do not conduct activities similar to those of
the Company. Consultant shall be free to render services and the Company hereby
consents thereto, as long as such service is not for a party who may be directly
or indirectly in competition with the Company and that such service does not
interfere with the services or the time necessary to render services to the
Company. Consultant shall be required to devote all reasonable time and
attention to the performance of his duties under this Agreement. The Consultant
warrants that he has both the ability to fulfill the tasks contemplated and time
to execute these tasks.
3. Your monthly consulting fee shall be $11,500 beginning April 14, 2006 and
will be paid to you each month in two equal payments at the on the first and the
fifteenth of each month. The Company agrees that such consideration shall be
reviewed from time to time and adjusted as conditions may warrant; however, in
no event, shall the consulting fee ever be less than $11,500.00.
4. The Company will pay or reimburse you for all reasonable and necessary
out-of-pocket expenses incurred by you in the performance of your duties under
this Agreement, subject to the presentment of appropriate vouchers in accordance
with the Company's normal policies for expense verification.
5. The Company agrees to retain your services and to pay the amount due during
the Term.
6. You agree that, except as permitted or directed by the Company, you will not,
either during your consulting agreement or thereafter, divulge, furnish, or make
accessible to anyone or use in any way (other than in ordinary course of
business of the Company) any Confidential Information (as defined below). You
acknowledge that the Confidential Information constitutes a unique and valuable
asset of the Company and represents a substantial investment of time and expense
by the Company and its predecessors, and that any disclosure or other use of
such Confidential Information other than for the sole benefit of the Company
would be wrong and would cause irreparable harm to the Company. For purposes of
this Agreement, "Confidential Information" means information not generally known
and proprietary to the Company or to a third party for whom the Company is
performing work, including, without limitation, information concerning any
patents or trade secrets, confidential or secret designs, processes, formulae,
source codes, plans, devises or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of the Company, any
customer or supplier lists of the Company, any confidential secret development
or research work of the Company or any confidential or secret aspects of the
business of the Company. Information shall cease to be Confidential Information
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from and after the date it becomes public information (other than as a result of
your acts or the acts of your representative in violation of this Agreement).
The Company will not, however, be responsible for any claims, losses, damages or
expenses, which are finally judicially determined to have resulted primarily
from the Consultant's bad faith or from the Consultant's gross negligence. The
Company also agrees that neither the Consultant nor any of your affiliates, nor
any officer, director, employee or agent of the Consultant or any of your
affiliates, nor any person controlling the Company or any of your affiliates,
shall be have liability to the Company or in connection with such engagement
except for any such liability for losses, claims, damages, liabilities or
expenses incurred by us that result primarily from your bad faith or gross
negligence. Notwithstanding the foregoing, the Company shall not be obligated to
contribute any amount hereunder that exceeds the amount of fees previously
received by the Consultant pursuant to Consultant's engagement by the Company.
7. This Agreement supersedes all prior agreements and understandings with
respect to your employment with the Company, and all other past or current
financial obligations under any other agreements are null and void.
8. No amendment or modification of this Agreement shall be deemed effective
unless made in writing and signed by both you and the Company. Notices pursuant
to this Agreement should be in writing and shall be deemed given when received
and, if mailed, shall be mailed by United States registered or certified mail,
return receipt requested, postage prepaid. If to the Company, notice should be
addressed to the Chairman of the Board of the Company at the Company's regular
corporate address.
9. This Agreement shall not be assignable, in whole or in part, by you. This
Agreement shall be binding upon, and inure to the benefit of, the Company and
its successors and assignees and upon any person acquiring, by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
Company's assets and business, and the successor shall be substituted for the
Company under this Agreement.
10. Any controversy or claim arising out of or relating to this Agreement (or
the breach thereof) shall be settled by final, binding and non-appealable
arbitration in Coeur d'Alene, Idaho and conducted in accordance
with the rules of the American Arbitration Association (the "Association") then
in effect. The arbitrators shall have no power to award any punitive or
exemplary damages; may construe or interpret but shall not ignore or vary the
terms of this Agreement, and shall be bound by controlling law. Each party shall
bear its own costs, including attorney fees, except that all costs of the
arbitration, including the attorney's fees and costs of the prevailing party
shall be paid by the non-prevailing party if the arbitrator determines that such
party's claims or defenses were not brought in good faith and without reasonable
basis therefore. Such arbitration award shall be enforceable in any court of
competent jurisdiction.
The foregoing agreement shall be in addition to any rights that the Parties or
any indemnified party may have at common law or otherwise, including, but not
limited to, any right to contribution. The Company hereby consents to personal
jurisdiction and service and venue in any court in which any claim that is
subject to this agreement is brought against the Consultant or any other
indemnified party.
If this letter Agreement accurately reflects our understanding and agreement,
please sign the original and return it to me. The copy is for your file.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
CONSULTANT COMPANY
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LIFESTREAM TECHNOLOGIES, INC.
By /s/ Xxxxxxxxxxx X. Xxxx By /s/ Xxxx Xxxxxxx
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Printed Name: Xxxxxxxxxxx X. Xxxx Printed Name: Xxxx Xxxxxxx
Its: President and CFO
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