EXHIBIT 10.16
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASES
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This Settlement Agreement and Mutual General Releases (the "Agreement") is
made as of August 15, 2007 by and between: (a) Gold Leaf Homes, Inc. a Texas
corporation, ("Gold Leaf"), (b) BlueStar Health, Inc. a Colorado corporation
("BlueStar"), (c) Alfred L. Oglesby ("Oglesby"), (d) Bluestar Acquisition, Inc.
a Texas corporation, ("Bluestar Acq."), and (e) Thomas Redmon ("Redmon"). Each
of the foregoing persons and entities is hereinafter referred to as a "Party"
and all of them collectively as the "Parties."
RECITALS
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This Agreement is made with reference to the following facts and
circumstances:
A. On October 17, 2005, BlueStar, Oglesby, Gold Leaf and Redmon entered
into a Reorganization and Purchase Agreement ("Reorganization Agreement") which
provided for BlueStar's purchase of all of the issued and outstanding capital
stock of Gold Leaf and certain related transactions between various of the
Parties;
B. On February 13, 2006, BlueStar, Bluestar Acquisition, Inc., a wholly
owned subsidiary of BlueStar, Gold Leaf, and Redmon entered into an Asset
Purchase Agreement ("Asset Agreement") and certain related agreements between
and among various of the Parties, which replaced the Reorganization Agreement of
October 15, 2005 and substituted a purchase of the home building assets of Gold
Leaf for the purchase of the stock of Gold Leaf;
C. Subsequent to the execution of the Asset Agreement the Parties
recognized that the purchase of Gold Leaf's assets by BlueStar was impracticable
due to the inability to obtain audited financial statements for Gold Leaf;
D. No assets of Gold Leaf were actually transferred to BlueStar or Bluestar
Acquisition, Inc. pursuant to the Reorganization Agreement or Asset Agreement
and no shares of BlueStar common stock were issued to Gold Leaf or Redmon; and
E. No operations of Gold Leaf were ever conducted under the name BlueStar
or Bluestar Acquisition, Inc., and all Gold Leaf operations were conducted as
they had been prior to execution of the Reorganization Agreement and Asset
Agreement; and
F. Disputes between the Parties related to misrepresentation, fraud and
other claims have arisen related to the Reorganization Agreement, Asset
Agreement, related transaction documents and the actions of the Parties (the
"Transaction Claims"); and
G. This Agreement is entered into solely for the purpose of settlement and
compromise, and each Party hereto expressly acknowledges and agrees that the
Parties hereto have not admitted, and by execution and performance of this
Agreement, do not admit, and in fact expressly deny, any and all liability or
obligation to the other Party, except for those rights and obligations
specifically provided in this Agreement.
TERMS OF AGREEMENT
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NOW, THEREFORE, for and in consideration of the mutual covenants and
representations contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1. Incorporation of Recitals. The Recitals set forth above are incorporated
into and made part of this Agreement, by this reference.
2. Effect and Effective Date of This Agreement. This Agreement shall become
effective and all obligations and claims arising out of the Reorganization
Agreement, Asset Agreement and related transaction agreements ("Transaction
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Documents"), except as otherwise specifically stated as remaining in full force
and effect, and the Transaction Claims, shall be cancelled, rescinded and
terminated upon completion of the following acts: (a) execution of this
Agreement by all Parties hereto; (b) the execution and delivery of the general
releases as provided in Sections 4 herein; (c) the delivery of the promissory
note in the form attached hereto as Exhibits A by Gold Leaf in accordance with
Sections 3 and 5 herein and payments of all amounts due thereunder; (d) the
delivery of the escrow instructions by Redmon in accordance with Sections 3 and
5. The date on which the documents described in Section 3 have been fully
executed and delivered to the other Parties counsel pursuant to Section 3 shall
be referenced herein as the "Effective Date" of this Agreement. If the events
specified in this Section 2 as necessary for this Agreement to become effective
do not occur by August 20, 2007 (unless such date is extended one or more times
by written agreement of all parties, or one or more of the necessary conditions
for effectiveness waived, in writing (i) by Gold Leaf, or its counsel, for all
acts under this Agreement to be performed or fulfilled by BlueStar or (ii) by
BlueStar, or its counsel, for all acts under this Agreement to be performed or
fulfilled by persons other than BlueStar, then (x) this Agreement shall be null
and void ab initio and all Parties restored to their positions as they existed
on the date first written above; (y) all documents and/or other things exchanged
pursuant to this Agreement shall be returned to the respective Party that
executed each; and (z) this Agreement shall not be cited or referred to for any
purpose. If BlueStar or Gold Leaf, as the case may be, elects to waive a
condition otherwise necessary for this Agreement to become effective, such
waiver will only apply to such act being a condition precedent to the
effectiveness of this Agreement and shall not relieve any Party of its
contractual obligation under this Agreement actually to perform such act.
3. Exchange of Settlement Documents. Executed copies of this Agreement, the
releases by Gold Leaf and Redmon described in Section 2(b) and 4, and the
Promissory Notes and Escrow Instructions described in Section 5 shall be
delivered to counsel for BlueStar, and executed copies of this Agreement and the
releases by BlueStar, Bluestar Acquisition, Inc., and Oglesby shall be delivered
to counsel for Gold Leaf. All of the executed documents shall be held by counsel
for the Parties in escrow, and not released to the Parties until counsel have
confirmed that all required documents have been executed and delivered to the
other Parties counsel.
4. Mutual and General Releases. Except for their respective rights to
enforce the obligations and other terms of this Agreement, and/or to a seek
judicial interpretation of this Agreement:
(a) Simultaneously upon executing this Agreement, BlueStar, Bluestar
Acquisition, Inc., and Oglesby shall separately execute and deliver to counsel
for Gold Leaf and Redmon, as escrow agent, a general release in favor of Gold
Leaf and Redmon and each of their respective Representatives (as defined below),
in the form attached hereto as Exhibit C.
(b) Simultaneously upon executing this Agreement, Gold Leaf and Redmon
shall separately execute and deliver to counsel for BlueStar, Bluestar
Acquisition, Inc. and Oglesby, as escrow agent, a general release in favor of
BlueStar, Bluestar Acquisition, Inc. and Oglesby and their Representatives, in
the form attached hereto as Exhibit D.
(c) Simultaneously upon executing this Agreement, Gold Leaf shall
separately execute and deliver to counsel to BlueStar, as escrow agent,
promissory notes in the form attached hereto as Exhibits A and escrow
instructions as described in Section 5.
(d) The term "Representatives", as used in this Section 4, and elsewhere
in this Agreement, refers to and means, as applicable, all agents, servants,
officers, directors, shareholders, partners, members, employees, contractors,
insurers, guarantors, sureties, affiliates, predecessors, successors, assigns,
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attorneys, accountants, spouse, children, heirs, representatives and all other
persons and entities acting with authority of or otherwise on behalf of the
particular Party.
5. Promissory Notes and Escrow Instructions. Gold Leaf shall execute and
deliver promissory notes in the form attached as Exhibits A in the amount of
$100,000 payable to BlueStar. Gold Leaf and Redmon shall execute a letter of
instruction to The Lebrecht Group, APLC, "Lebrecht" in the form attached as
Exhibit E ("Escrow Instructions".
6. Oglesby Payment/Credit. Oglesby shall make a payment towards or
otherwise reduce the principle balance owed by $65,000 on the liability of Gold
Leaf and Redmon under a promissory note issued by Gold Leaf to a creditor
identified on the promissory note described in Exhibit F ("Obligation"). No
payments shall be made directly to Gold Leaf or Redmon pursuant to this
provision and the means of reducing the Obligation shall be within the
reasonable discretion of Oglesby if acceptable to the creditor. To the extent
Oglesby has not already taken action regarding the Obligation, he shall refrain
from any action related to the Obligation until directed in writing by Gold Leaf
to do so. Once directed by Gold Leaf, Oglesby shall within ten days make a
payment or otherwise reduce the principle balance of the Obligation by $65,000.
7. Indemnification. The representations, warranties and covenants set forth
in this Agreement shall survive and continue after the Effective Date of this
Agreement and the closing of any transaction contemplated herein. Each Party
(the "Breaching Party") shall indemnify and hold harmless every other Party from
any loss, liability, damages, claim and/or expenses (including reasonable
attorney's fees incurred in connection therewith) arising from or relating to
any breach by the Breaching Party of any of the representations, warranties or
covenants made by the Breaching Party in this Agreement.
(a) Gold Leaf and Mr. Redmon shall indemnify and hold BlueStar, Bluestar
Acq. and Oglesby harmless from: a) any costs, debts, expenses or liabilities
associated with the home building activities conducted by Gold Leaf Homes before
Mr. Redmon's resignation as BlueStar's director and president; and b) any other
liabilities incurred by Redmon on behalf of BlueStar during the period Redmon
served as president which are not disclosed and accepted by BlueStar, and
Bluestar Acq. prior to the date of settlement.
(b) BlueStar and Bluestar Acq. shall indemnify and hold Gold Leaf and
Redmon harmless from any expenses or liabilities of BlueStar or Bluestar Acq.,
incurred prior to Mr. Redmon's resignation except those described in Section
7.(b) above.
8. Authority to Contract. Each Party hereby respectively represents and
warrants to the others that such Party has the full power, capacity, and
authority to enter into this Agreement; that such Party has not sold, assigned,
or in any manner transferred or relinquished any claims that such Party ever had
against the others to any third party; that this Agreement does not constitute
or create a breach or default under any contract, order or other obligation by
which such Party is bound; and that no other consents, approvals, releases or
settlements are necessary from any other person or entity to make this Agreement
effective, or to release and discharge the other Parties from any of the claims.
9. Advice of Counsel. The Parties each declare and represent that, in
executing this Agreement, each has received legal advice as to their respective
legal rights and obligations, and each hereby certifies that its authorized
Representative signing below has read this entire Agreement and fully
understands all of the provisions that are set forth herein and their binding
legal effect.
10. Investigation. The Parties have each made such investigation of the
facts pertaining to this settlement, this Agreement, and of all the matters
pertaining thereto as they deem necessary.
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11. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties and each of their respective Representatives, including
assigns and successors.
12. Integration. This document contains the entire agreement and
understanding between the Parties hereto concerning the subject matter hereof
and supersedes and replaces any prior negotiations, representations, covenants,
warranties and agreements between the Parties hereto, whether written or oral,
except as may otherwise be expressly provided herein. Each of the Parties
acknowledges that no Party, or any other person, has made any promise,
representation, or warranty, express or implied, not contained in this Agreement
to induce any other Party to execute this Agreement.
13. Governing Law and Venue. This Agreement shall be interpreted in
accordance with and governed in all respects exclusively by the laws of the
State of Texas, without regard to any conflict of law principles. Venue for any
action or proceeding arising from or relating to this Agreement shall be
exclusively in the Federal or State Courts located in Montgomery County, Texas,
and all Parties hereby consent to the exclusive jurisdiction of and venue in
such courts.
14. Attorneys' Fees and Costs. Each Party agrees to bear his, her or its
own respective costs, expenses, attorneys' fees and other disbursements arising
out of and/or connected with the negotiation, drafting, and execution of this
Agreement, with the exception that Bluestar shall pay $2,000 of the fees
incurred by Gold Leaf to K. Gilbert, Esq. following the closing of this
settlement.
15. Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, or neuter, singular or plural, as the identity
of the Parties may require.
16. Counterparts and Facsimiles. Four duplicate originals of this Agreement
will be executed by the Parties so that Gold Leaf, Redmon, BlueStar and Oglesby
will each receive a fully executed original. This Agreement may be executed in
one or more duplicates or counterparts, each of which shall be deemed an
original, and all of which taken together shall constitute a single instrument.
A facsimile signature to this Agreement shall be considered for all purposes an
original signature. The releases shall be original notarized signatures, two
manually executed originals of each release shall be delivered to counsel for
the other parties.
17. Interpretation. The language in all parts of this Agreement shall in
all cases be construed according to its fair meaning and any question of
ambiguity or doubtful interpretation shall not be resolved against the Party who
causes the ambiguity or the uncertainty to exist, or against the drafter of the
Agreement. This Agreement shall be deemed to have been jointly drafted in its
entirety by all Parties hereto.
18. Titles and Captions. The Parties have inserted the underlined section
titles in this Agreement only as a matter of convenience and for ease of
reference. These section titles shall not be referred to in any interpretation
of this Agreement, and they shall not define, limit, extend, or describe the
scope of this Agreement, or the intent of the Parties.
19. Time for Performance. Time is of the essence with respect to any act or
performance hereunder.
20. Escrow Provisions. The following terms and conditions apply wherever
this Agreement refers to delivering or holding any document, money, or other
thing in escrow.
(a) All documents, money or other things delivered or placed into
escrow shall be delivered to counsel for the Party as described below. For the
purposes of notice, notices sent by facsimile shall be sent to the facsimile
numbers below.
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(b) Upon the Effective Date of this Agreement, Gilbert and Hannesson
shall send written notice by fax to the other confirming that the Effective Date
has occurred to:
Keith T. Gilbert, Esq.
Gilbert Group
PO Box 1984
Houston, TX 77251
Fax: 713-444-1409
John D. Hannesson, Esq.
18661 Via Palatino
Irvine, California 92603-3445
Fax: 949-509-9867
(c) Within one (1) business day after the Effective Date of this
Agreement, Gilbert and Hannesson shall release from escrow and deliver executed
copies to the Parties for which they are acting as escrow agents.
(d) If the Effective Date of this Agreement does not occur by August
20, 2007 (or such later date as may be extended pursuant to Section 2(i) or
2(ii) herein), then Gilbert and Hannesson will promptly thereafter return to
each respective Party any documents or other things deposited by such Party into
escrow under this Agreement.
(e) All notices permitted or required by this Agreement shall be sent
either (i) by overnight delivery or (ii) by facsimile with a confirmation copy
sent by certified mail, return receipt requested, to the addresses (and if by
facsimile, to the fax numbers) specified in this Section 17. Any Party may
change its address and/or fax number by serving a written notice to Seegel and
the other Parties as provided in this Section 17. All notices sent pursuant to
this Section 17 shall be deemed delivered on the date hand delivered or faxed.
(f) All Parties acknowledge and agree that Gilbert has served, and may
continue to serve, as attorney for Gold Leaf and Redmon (as well as persons or
entities affiliated with or related to them) and Hannesson has served and may
continue to serve as counsel to BlueStar and Bluestar Acquisition, Inc. Gilbert
and Hannesson serving as escrow agents under this Agreement, and any and all
acts or omissions taken by them as escrow agents, shall not provide any basis or
grounds to disqualify Gilbert or Hannesson from serving as attorneys for their
clients. No Party shall make any application to disqualify or limit Gilbert or
Hannesson from acting as attorneys for their existing clients or any persons or
entity affiliated with or related to such existing clients.
(g) Gilbert and Hannesson shall be exculpated and relieved from any and
all liability, and shall have no liability whatsoever, for any act or omission
taken by them in good faith as escrow agents under this Agreement. Each of the
Parties on their own behalf and on behalf of their Representatives releases and
waives any claims they may have in the future against Gilbert or Hannesson for
any loss, liability, damages, claims or expenses, including, without limitation,
reasonable attorney's fees, arising from or relating to any act or omission
taken by Gilbert or Hannesson in good faith as escrow agents under this
Agreement, including, without limitation, relying on notices or instructions
sent or apparently sent by any Party pursuant to this Agreement. In the event of
any dispute between the Parties respecting any document or other thing in
escrow, the Parties shall not join Gilbert or Hannesson as a party to any action
or proceeding commenced by any of them (except for a claim against Gilbert or
Hannesson that they acted or failed to act in bad faith), but shall instead
merely provide Gilbert or Hannesson with notice of the pendency of such action
or proceeding and copies of any orders, decrees or judgments entered in such
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action or proceeding. In consideration of Gilbert and Hannesson not being joined
as a party to any such action or proceeding, Gilbert and Hannesson agree to
abide by any orders, decrees or judgments rendered by any court of competent
jurisdiction with respect to matters relating to any of the escrow provisions
under this Agreement.
(h) In the event of any dispute between the Parties concerning any
money, document or other thing deposited into escrow under this Agreement,
Gilbert and Hannesson shall have the right, in their sole discretion, but not
the obligation, to retain custody over such document or other thing until they
receive joint written instructions or an order, decree or judgment as provided
in this Section 21 or, alternatively, (b) to deposit such money, document or
other thing that is the subject of the dispute into the possession of a court of
competent jurisdiction. If Gilbert or Hannesson elects to deposit any money,
document or other thing that is the subject of a dispute into the possession of
a court competent jurisdiction, then all obligations under this Agreement shall
cease with respect to any document or other thing so deposited into the
possession of a court of competent jurisdiction.
21. Survival and Indemnity. The representations, warranties and covenants
set forth in this Agreement shall survive and continue after the Effective Date
of this Agreement and the closing of any transaction contemplated herein. Each
Party (the "Breaching Party") shall indemnify and hold harmless every other
Party from any loss, liability, damages, claim and/or expenses (including
reasonable attorney's fees incurred in connection therewith) arising from or
relating to any breach by the Breaching Party of any of the representations,
warranties or covenants made by the Breaching Party in this Agreement.
22. No Third-Party Beneficiaries. No person or entity that is not a
signatory to this Agreement shall have any rights hereunder. There are no
third-party beneficiaries of this Agreement, intended or otherwise, except to
the extent that the general releases that will be exchanged pursuant to this
Agreement will release the Representatives of each respective Party hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
THIS AGREEMENT CONTAINS RELEASES OF CLAIMS. READ
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THIS AGREEMENT CAREFULLY BEFORE SIGNING IT.
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GOLD LEAF HOMES, INC. BLUESTAR HEALTH, INC.
By: /s/ Tom Redmon By: /s/ Richard M. Greenwood
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Tom Redmon, President Richard M. Greenwood,
President
TOM REDMON ALFRED OGLESBY
By: /s/ Tom Redmon By: /s/ Alfred Oglesby
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Tom Redmon Alfred Oglesby
BLUESTAR ACQUISITION, INC.
By: /s/ Alfred Oglesby
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Alfred Oglesby, President
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WITH RESPECT TO SECTION 21 ONLY
AND ONLY AS ESCROW AGENT:
GILBERT GROUP LAW OFFICE OF JOHN D. HANNESSON
By: /s/ By: /s/
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Keith T. Gilbert John D. Hannesson
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