BETTER BIODIESEL, INC. CONSULTING SERVICES AGREEMENT
Exhibit
10.11
This
Consulting Services Agreement (the “Agreement”), dated
January ___, 2008, is made by and between ▇▇▇▇.▇▇, LLC a Pennsylvania
limited liability company (“▇▇▇▇.▇▇”) (the “Consultant”), and
Better
Biodiesel, Inc.,
a Colorado corporation (the “Company”). The
Consultant and the Company shall hereafter be referred to individually as a
“Party” and
collectively as the “Parties.”
WHEREAS,
Consultant has extensive background in financial services
and
consulting;
WHEREAS,
Consultant desires to be engaged by Company to provide relations management
services to Company subject to the conditions set forth herein; and
WHEREAS,
Company desires to engage Consultant to provide the services in its area of
knowledge and expertise on the terms and subject to the conditions set forth
herein.
NOW,
THEREFORE, in consideration for those services Consultant agrees to provide
to
the Company, the Parties agree as follows:
1.
Services of Consultant.
During
the Term (as defined below) of this Agreement, Consultant agrees to perform
for
Company the following services, based on the terms of this Agreement and to
the
extent the Parties agree from time to time (the “Services”):
(a)
Identify
catalysts and value propositions as they relate to the Company’s
growth strategy;
(b)
Facilitate
the establishment of press releases to relay growth strategy to the financial
community;
(c)
Author
and
distribute an investment profile for the Company on Consultant’s website,
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, including a summary of the Company, its market, investment
catalysts, stock profile and recent news;
(d) Investor relations;
(e)
Schedule
and
facilitate strategic shareholder calls with the management of the
Company;
(f)
Coordinate
opt-in e-mail notifications; and
(g)
Evaluate
progress of the communications campaign and provide an updated investor
relations plan at 120-day intervals.
2.
Consideration.
(a)
In
consideration for the Services rendered to the Company hereunder during the
Term
of this Agreement by Consultant and Consultant’s covenants hereunder, the
Company shall irrevocably, pay Consultant compensation including
(1)One
hundred thousand (100,000) shares of restricted common stock of the Company
(the
“Common
Stock”). Shares issued pursuant to the exercise of this
Agreement shall be issued in the name of ▇▇▇▇.▇▇ LLC. All shares and
certificates representing such shares shall be subject to applicable SEC,
federal, state (Blue sky) and local laws and additional restrictions set forth
herein; and
(2)The
Company shall issue to the Consultant a ten (10) year cashless warrant to
purchase three hundred thousand (300,000) shares of Common Stock, in the form
attached hereto as Exhibit A (the “Warrant”). The
Warrant shall be exercisable by Consultant (or its assignee) at an exercise
price of One Dollar ($1.00) per share. The right to exercise the
Warrant shall expire on the date that is ten (10) years following the date
of
execution of this Agreement;
(b)
Consultant
shall be entitled to “piggy-back” registration rights for (i) the Common Stock
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.
(c)
The
following
legend (or a legend substantially in the following form) shall be placed on
certificates representing the common stock issued:
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.
3.
Confidentiality.
Each
party agrees that during the course of this Agreement, information that is
confidential or of a proprietary nature may be disclosed to the other party,
including, but not limited to, product and business plans, software, technical
processes and formulas, source codes, product designs, sales, costs and other
unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data (“Confidential
Information”). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of its
disclosure, or thereafter becomes part of the public domain through a source
other than the receiving party, (b) was known to the receiving party as of
the
time of its disclosure, (c) is independently developed by the receiving party,
or (d) is subsequently learned from a third party not under a confidentiality
obligation to the providing party. Confidential Information need not
be marked as confidential at the time of disclosure to receive “Confidential
Information” protection as required herein, rather all information disclosed
that, given the nature of the information or the circumstances surrounding
its
disclosure reasonably should be considered as confidential, shall receive
“Confidential Information” protection.
4.
Non-Competition, Non-Solicitation.
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(a)
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Non-Competition.
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Consultant
agrees that it shall not, during the Term and for one year subsequent thereto
directly or indirectly, engage or be interested in any business(es) that is
competitive with the business being conducted by the Company through the
consulting Term, without the express direction or written approval of the
Company.
(b)
Non-Solicitation.
Consultant
agrees that it will not, without the prior written consent of the Company,
for a
period of two (2) years after the termination of employment, directly or
indirectly disturb, entice, or in any other manner persuade, any employee or
consultant of the Company to discontinue that person’s or firm’s relationship
with the Company if the employee(s) and/or consultant(s) were employed by the
Company at any time during the twelve (12) month period prior to the termination
date.
Consultant
further agrees that it will not, for a period of two (2) years following the
termination of employment, contact or solicit orders, sales or business from
any
customer of the Company’s so as to induce or attempt to induce such customer to
cease doing business with the Company.
5.
Indemnification.
(a)
Company.
The
Company agrees to indemnify, defend, and shall hold harmless Consultant and/or
its agents, and to defend any action brought against said parties with respect
to any claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees to the extent that such action is based upon a claim that:
(i)
is true, (ii) would constitute a breach of any of Company's representations,
warranties, or agreements hereunder, or (iii) arises out of the negligence
or
willful misconduct of Company.
(b)
Consultant.
The
Consultant agrees to indemnify, defend, and shall hold harmless Company, its
directors, employees and agents, and defend any action brought against same
with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of
the
gross negligence or willful misconduct of Consultant.
(c)
Notice.
In
claiming any indemnification hereunder, the indemnified party shall promptly
provide the indemnifying party with written notice of any claim, which the
indemnified party believes falls within the scope of the foregoing paragraphs.
The indemnified party may, at its expense, assist in the defense if it so
chooses, provided that the indemnifying party shall control such defense, and
all negotiations relative to the settlement of any such claim. Any settlement
intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6.
Termination and Renewal.
(a)
Term.
This
Agreement shall become effective on the date first written above and terminate
twelve (12) months thereafter, unless terminated sooner in accordance with
Section 6(b), below (the “Term”). Unless
otherwise agreed upon in writing by Consultant and Company, this Agreement
shall
not automatically renew beyond its term.
(b)
Termination.
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 the other 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.
(c)
Termination and Payment.
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.
7.
Remedies
Should
Consultant at anytime materially
breach any of terms outlined in this Agreement, Company shall have the right
to
seek remedies, including but not limited to: i) a temporary restraining order
and permanent injunction; ii) liquidated damages; iii) cancellation of the
interests underlying the stock certificates.
8.
Miscellaneous.
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a)
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Independent
Contractor.
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Consultant
shall render all Services hereunder as an independent contractor and shall
not
hold himself out as an agent of Company. Nothing herein shall be construed
to
create or confer upon Consultant the right to make contracts or commitments
for
or on behalf of Company.
b)
Right to Hire Sub-Consultants
The
Parties agree that Consultant shall be authorized to hire sub-consultants only
with pre-notification and approval by the Company.
c)
Right to Incur Expenses
The
Parties agree that Consultant shall be entitled to reimbursement for ordinary
i.e. press releases and extraordinary expenses only with pre-notification and
approval by the Company before the expenses are incurred.
d)
Negative Covenants
Consultant
hereby covenants that at no
time will he provide any service that directly or indirectly promotes or
maintains a market for the Company’s securities nor act as a conduit for
distributing securities to the general public. Moreover, Consultant
will not provide certain services including but not limited to: acting as a
broker or dealer or arrange or effect mergers or circulate research to broaden
or sustain a market price.
e)
Rights Cumulative; Waivers.
The
rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or variation
in writing. Any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any other
such
right. Any defective or partial exercise of any of such rights shall
not preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of any
party shall in any way preclude such party from exercising any such right or
constitute a suspension or any variation of any such right.
f)
Benefit; Successors Bound.
This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
g)
Entire Agreement.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representations,
oral or written, express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth in this
Agreement. Any such negotiations, promises, or understandings shall
not be used to interpret or constitute this Agreement.
h)
Assignment.
Neither
this Agreement nor any other benefit to accrue hereunder shall be assigned
or
transferred by either party, either in whole or in part, without the written
consent of the other party, and any purported assignment in violation hereof
shall be void.
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i)
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Amendment.
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This
Agreement may be amended only by an instrument in writing executed by all the
parties hereto.
j)
Severability.
Each
part
of this Agreement is intended to be severable. In the event that any
provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and as
so
severed or modified, this Agreement shall continue in full force and
effect.
k)
Section Headings.
The
Section headings in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
l)
Construction.
Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
m)
Further Assurances.
In
addition to the instruments and documents to be made, executed and delivered
pursuant to this Agreement, the parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
n)
Notices.
Any
notice which is required or desired under this Agreement shall be given in
writing and may be sent by personal delivery or by mail (either (i) United
States mail, postage prepaid, or (ii) Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
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If
to Company:
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Better
Biodiesel
Inc.
Attn:
▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇
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If
to Consultant:
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▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇.
▇▇▇▇▇,
▇▇
▇▇▇▇▇
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o)
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Governing
Law.
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This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of Washington without reference to its conflicts of laws rules or
principles. Each of the parties consents to the exclusive
jurisdiction of the federal courts of the State of Washington in connection
with
any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum non coveniens, to the
bringing of any such proceeding in such jurisdictions.
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p)
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Consents.
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The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of such party.
Unless
provided otherwise within this Agreement, it is acknowledged by the Company
that: (i) the Consultant has consulted its own counsel on all aspects of this
Agreement; and (ii) the Company has not made any representations to the
Consultant to induce it to enter into this Agreement.
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q)
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Survival
of Provisions.
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The
provisions contained in paragraphs 3, 4, 5, 7 and 8(b) of this Agreement shall
survive the termination of this Agreement.
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r)
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Execution
in Counterparts.
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This
Agreement may be executed via facsimile and in any number of counterparts,
each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
have
agreed to and accepted the terms herein on the date written above.
CLIENT:
By:
▇▇▇▇▇ ▇.
▇▇▇▇
Its: Director
CONSULTANT:
▇▇▇▇.▇▇,
LLC
By:
▇▇▇▇▇
▇▇▇▇▇▇▇
Its: Managing
Member