CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of January 13, 2004 (the
"Agreement"), by and between Winfield Financial Group, Inc., a
Nevada Corporation (the "Company") and Xxxxxxx Xxxxx (the
"Consultant") (a "Party", collectively, the "Parties").
RECITALS
WHEREAS, the Company has requested of Consultant and the
Consultant has agreed to provide certain strategic, financial and
other general corporate consulting services to the Company.
WHEREAS, in connection with and in consideration for such
services, the Company has agreed to compensate Consultant with
common stock of the Company in lieu of cash payment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Parties agree as follows:
1. Services. Consultant agrees to familiarize itself
to the extent it deems appropriate and feasible with the
business, operations, properties, financial condition and
prospects of the Company and to perform and provide, as the
Company reasonably and specifically requests, certain strategic
consulting services to the Company ("Services"). NONE OF THE
SERVICES PROVIDED BY CONSULTANT HEREIN SHALL INVOLVE THE RAISING
OF DEBT OR EQUITY CAPITAL, AND NOTHING IN THIS AGREEMENT SHALL BE
CONSTRUED AS TO OBLIGATE OR REQUIRE THE CONSULTANT TO RAISE DEBT
OR EQUITY CAPITAL.
The Parties hereby confirm and acknowledge that the services
rendered by Consultant hereunder: (a) consist and will consist
of bona fide services rendered and to be rendered to Company, (b)
are not and will not be in connection with the offer or sale of
securities in capital raising transactions, and (c) do not and
will not promote or maintain a market for the securities of
Company.
2. Compensation. (i) In consideration of the
Services to be provided by the Consultant, and in lieu of a cash
payment, the Company agrees to issue to Consultant 325,000 shares
of common stock of the Company.
(ii) The Company hereby agrees to register the
Shares by filing a Form S-8 Registration Statement covering the
Shares on the of the date of this Agreement. Consultant shall
take any action reasonably requested by the Company in connection
with registration or qualification of the Shares under federal or
state securities laws
(iii) It is expressly understood and agreed
that in connection with the Services to be performed by the
Consultant, the Consultant shall be solely responsible for any
and all taxes arising from the consulting fees paid to the
Consultant hereinafter.
3. Term. Consultant's engagement shall be for a period
commencing January 13, 2004 and ending on the December 31, 2004.
4. Information. The Company shall furnish Consultant
such information as Consultant reasonably requests in connection
with the performance of its services hereunder (all such
information so furnished is referred to herein as the
"Information"). The Company understands and agrees that
Consultant, in performing its services hereunder, will use and
rely upon the Information as well as publicly available
information regarding the Company and any potential partners and
that Consultant shall not assume responsibility for independent
verification of any information, whether publicly available or
otherwise furnished to it, concerning the Company or any
potential partner, including, without limitation, any financial
information, forecasts or projections, considered by Consultant
in connection with the rendering of its services. Accordingly,
Consultant shall be entitled to assume and rely upon the accuracy
and completeness of all such information and is not required to
conduct a physical inspection of any of the properties or assets,
or to prepare or obtain any independent evaluation or appraisal
of any of the assets or liabilities, of the Company or any
potential partner. With respect to any financial forecasts and
projections made available to Consultant by the Company or any
potential partners and used by Consultant in its analysis,
Consultant shall be entitled to assume that such forecasts and
projections have been reasonably prepared on bases reflecting the
best currently available estimates and judgments of the
management of the Company or any potential partner, as the case
may be, as to the matters covered thereby.
5. Timely Appraisals. The Company hereby agrees to use
its commercially reasonable efforts to keep Consultant up to date
and apprised of all business, market and legal developments
related to the Company and its operations and management.
Accordingly:
(i) the Company shall provide
Consultant with copies of all amendments, revisions and
changes to its business and marketing plans, bylaws, articles
of incorporation, private placement memoranda, key contracts,
employment and consulting agreements and other operational
agreements;
(ii) the Company shall promptly notify
Consultant of all new contracts agreements, joint ventures or
filings with any state, federal or local administrative agency,
including without limitation the SEC, NASD or any state
agency, and shall provide all related documents, including
copies of the exact documents filed, to Consultant, including
without limitation, all annual reports, quarterly reports and
notices of change of events, and registration statements
filed with the SEC and any state agency, directly to Consultant;
(iii) the Company shall also provide
directly to Consultant current financial statements, including
balance sheets, income statements, cash flows and all other
documents provided or generated by the Company in the normal
course of its business and requested by Consultant from time to
time; and
(iv) Consultant shall keep all documents
and information supplied to it hereunder confidential.
6. Representations and Warranties. The Consultant
hereby represents and warrants to the Company that:
(i) he has full legal capacity to enter into this
Agreement and to provide the Services hereunder without violation
or conflict with any other agreement or instrument to which the
Consultant is a party or may be bound;
(ii) in the course of performing the Services
hereunder, the Consultant will not infringe the patent, trademark
or copyright (collectively, "Intellectual Property") of any third
party;
(iii) the execution, delivery and performance
of this Agreement does not and will not conflict with, violate or
breach its constituent documents or any agreement (including,
without limitation, any other distribution agreement), decree,
order or judgment or any law or regulation to which it is a party
or subject or by which it or any of its properties or assets is
bound.
7. Relationship of the Parties. The Consultant shall be
an independent contractor and the Consultant shall not be
considered in any manner an employee of the Company and the
relationship of the Company and the Consultant shall not in any
manner create an employer-employee relationship between the
parties.
8. Reliance on Others. The Company confirms that it will
rely on its own counsel, accountants and other similar expert
advisors for legal, accounting, tax and other similar advice.
9. No Rights in Shareholders, etc. The Company recognizes
that Consultant has been engaged only by the Company, and that
the Company's engagement of Consultant is not deemed to be on
behalf of and is not intended to confer rights upon any
shareholder, partner or other owner of the Company or any other
person not a party hereto as against Consultant or any of its
affiliates or any of their respective directors, officers,
agents, employees or representatives. Unless otherwise expressly
agreed, no one other than the Company is authorized to rely upon
the Company's engagement of Consultant or any statements, advice,
opinions or conduct by Consultant. Without limiting the
foregoing, any opinions or advice rendered to the Company's Board
of Directors or management in the course of the Company's
engagement of Consultant are for the purpose of assisting the
Board or management, as the case may be, in evaluating the
Transaction and do not constitute a recommendation to any
shareholder of the Company concerning action that such
shareholder might or should take in connection with the
Transaction. Consultant's role herein is that of an independent
contractor; nothing herein is intended to create or shall be
construed as creating a fiduciary relationship between the
Company and Consultant.
10. No Waiver. The failure of any of the parties hereto
to enforce any provision hereof on any occasion shall not be
deemed to be a waiver of any preceding or succeeding breach of
such provision or of any other provision.
11. Entire Agreement. This Agreement constitutes the
entire Agreement and understanding of the parties hereto.
12. Amendments. No amendment, modification or
waiver of any provision herein shall be effective unless in
writing, executed by each of the parties hereto.
13. Governing Law; Jurisdiction. This Agreement shall be
construed, interpreted and enforced in accordance with and shall
be governed by the laws of the State of Nevada applicable to
agreements made and to be performed entirely therein. In the
event that either Party hereto shall take legal action to enforce
any of the provisions of this Agreement, the Parties agree that
the exclusive jurisdiction for such legal action shall be the
state courts of Nevada or the federal courts residing in the
State of Nevada.
14. Binding Effect. This Agreement shall bind and inure
to the benefit of the Parties, their successors and assigns.
15. Notices. Any notice under the provisions of this
Agreement shall be deemed given when received and shall be given
by hand, reputable overnight courier service or by registered or
certified mail, return receipt requested, directed to the
addresses set forth above, unless notice of a new address has
been sent pursuant to the terms of this section.
16. Unenforceability; Severability. If any provision of
this Agreement is found to be void or unenforceable by a court of
competent jurisdiction, the remaining provisions of this
Agreement shall, nevertheless, be binding upon the Parties with
the same force and effect as though the unenforceable part had
been severed and deleted.
17. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE
OR MORE COUNTERPARTS, ALL OF WHICH SHALL BE DEEMED TO BE
DUPLICATE ORIGINALS.
IN WITNESS WHEREOF, the Parties hereto have executed this
instrument the date first above written.
Winfield Financial Group, Inc.
Xxxxxx Xxxxxx, President
CONSULTANT
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
