EXHIBIT 10.15
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 ALO Investments, LLC, a Texas
limited liability company ("ALO" or "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the consulting services of Consultant; and
WHEREAS, Consultant wishes to provide the Company with consulting services.
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, on a
non exclusive basis, and Consultant agrees to make available Xxxxxx X. Xxxxxxx
or a comparable consultant designated by ALO and approved by Bluestar, to
consult with the Company's officers and directors over the twelve (12) months
following the month in which the closing of Bluestar's acquisition of Zeon
Energy, Inc., occurs. The agreement shall automatically be renewed subject to
Section (5) below, for an additional twelve (12) month period if neither party
provides written notice of non-renewal to the other thirty (30) or more days
prior to the anniversary of the Zeon closing. Consultant shall provide
consulting services and advice on projects agreed to in writing by the parties.
The Company may request Consultant to work on projects in the following areas
(the "Consulting Services"):
(a) Provide counsel regarding mergers and acquisitions, business operations
and restructurings;
(b) Assist in raising capital for the Company through the sale of equity to
private or public sales, and assist in arranging debt funding via secured or
unsecured borrowing, and
(c) Act as a liaison between the Company and lawyers and accountants
concerning the Company's ongoing obligations as a reporting company;
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 Closing of the
acquisition of Zeon by Bluestar and extend for a period of twelve (12) months.
At the end of the twelve month term, this Agreement will automatically renew
subject to Section (5) below, for additional twelve (12) month periods with the
COMPANY paying CONSULTANT the same compensation as the initial twelve (12) month
period unless this Agreement is terminated by COMPANY upon thirty (30) days
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written notice before the end of any twelve (12) month period or earlier
pursuant to the termination rights contained in Section 4.
3. COMPENSATION TO CONSULTANT
(a) The Consultant's compensation for the Consulting Services shall be
$15,000 per month, plus reasonable expenses. The fee shall be paid in cash at
the end of each month or may be accrued and payment deferred for up to three
months at a time if the Company's board of directors determines that the Company
would experience cash shortfalls if payment were made. Consultant may elect to
defer payment of monthly fees and to take payment in the form of shares of
common stock (the "Shares") of the Company at a discount equal to 25% from the
market price on the last day of each month. The Shares shall be registered by
the Company
(b) Company shall pay Consultant fees for the successful completion of
capital raising actions directly resulting from Consultants efforts and not from
other third party agents in the following amounts: (i) for any transaction
raising capital through the sale of capital stock a fee equal to ten percent
(10%) of the net of net available proceeds to the Company after other fees,
underwriting, legal and other costs are deducted; (ii) for any transaction
directly resulting from Consultants efforts and not from other third party
agents raising debt funds through a term loan whose principle repayment period
is five (5) years or longer a fee equal to six percent (6%) of the net of net
available proceeds to the Company after other fees, underwriting, legal and
other costs are deducted and (iii) a fee equal to two percent (2%) of the total
credit line available from any borrowing directly resulting from Consultants
efforts and not from other third party agents which has a net annualized
borrowing cost equal to ten point one percent (10.1%) or greater and increasing
to a fee equal to five percent (5%) of the total credit line available from any
borrowing which has a net annualized borrowing cost equal to ten percent (10%)
or less.
(c) Company shall be given a credit against any capital raising or funding
transaction fees for all monthly consulting fees earned by Consultant up to the
closing of each capital raising transaction not already taken into consideration
under previously closed transactions.
(d) Company agrees that should Consultant successfully arrange a
transaction described in 3(b) above prior to the Closing of the acquisition of
Zeon by Bluestar, Company shall pay Consultant a fee for such transaction
according to the terms set out in 3(b) above.
Consultant understands that NO DEDUCTION FOR FEDERAL, STATE OR OTHER
GOVERNMENTAL SUBDIVISION TAXES OR CHARGES OF ANY TYPE WILL BE MADE FROM THE
AMOUNT DUE CONSULTANT UNDER THE TERMS OF THIS AGREEMENT. CONSULTANT FULLY AND
COMPLETELY UNDERSTANDS THAT IT IS SOLELY AND TOTALLY RESPONSIBLE FOR THE PAYMENT
OF ALL SUCH TAXES OR CHARGES. At the end of the calendar year, Consultant shall
receive a Form 1099 notifying the Internal Revenue Service of all compensation
paid to Consultant by the Company.
4. 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
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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.
5. TERMINATION
The Company shall have the right to terminate this Agreement: (i) at any time in
the event of the liquidation, bankruptcy, insolvency, or assignment for the
benefit of creditors of ALO, or Xxxxxx X. Xxxxxxx (individually); and/or (ii) at
any time if Consultant has not directly assisted the Company in closing a
financing or series of financings which result in obtaining net available funds
to the Company of at least $500,000 by the end of the third month following the
Closing of the acquisition of Zeon by Bluestar and $500,000 each quarter
thereafter or $2,000,000 for each twelve month period this Agreement is in
force.
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 the events described herein, this Agreement can only be terminated in
a writing signed by both parties.
6. 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.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby represents, warrants, covenants to and agrees with Consultant
that:
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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.
8. INDEPENDENT CONTRACTOR
Both the Company and the Consultant agree that the Consultant will act as an
independent contractor in the performance of Consultant's duties under this
Agreement. Nothing contained in this Agreement shall be construed to imply that
Consultant, or any employee, agent or other authorized representative of
Consultant, is a partner, joint venturer, agent, officer or employee of the
Company. Neither party hereto shall have any authority to bind the other in any
respect vis a vis any third party, it being intended that each shall remain an
independent contractor and responsible only for its own actions.
9. 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 000
Xxxxx Xxxx, XX, 00000
Attn: President
Facsimile No.: (000) 000-0000
If to Consultant: ALO Investments, LLC
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile (000) 000-0000
10. 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.
11. REGISTRATION OF SHARES
Consultant may request registration of all shares, if any, issued pursuant to
this Agreement at any time after the third month following termination of the
Agreement. If the Company is current in its reporting with the Securities and
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Exchange Commission, under the Exchange Act of 1934 ("34 Act") the Company shall
use reasonable efforts to effect the registration under the Securities Act of
1933 ("33 Act") as soon as practicable, and in any event within sixty (60) days
of receiving Consultant's notice. The Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 11 if
the Chief Executive Officer in consultation with the board of directors of the
Company, determines in good faith that it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed and it
is therefore essential to defer the filing. The Company shall include such
shares on the first available filing and shall have the discretion to select the
form of registration to be utilized and whether to include shares of Xxxxxxx in
a registration of shares offered by the Company or other selling shareholders.
All reasonable expenses (other than underwriting discounts and commissions)
incurred in connection with registrations, filings or qualifications pursuant to
this Section 11, including, without limitation, all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company shall be paid by the Company.
12. 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 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 Xxxxxx, State of Texas.
13 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.
14. 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.
15. 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.
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16. 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.
17. MODIFICATION
No change, modification, addition, or amendment to this Agreement shall be valid
unless in writing and signed by all parties hereto.
18. 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.
N 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., ALO Investments, LLC,
a Colorado corporation a Texas limited liability company
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
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By: Xxxxxxx X. Xxxxxxxxx By: Xxxxxx Xxxxxxx
Its: President Its: Member
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