Exhibit 4.6
Agreement
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Agreement, made as of July 2, 2003 between Consumers Financial Corp.
having its principal place of business located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX, 00000 (the "Corporation"), and Xxxxxxx X. Xxxxx, a private corporate
consultant, whose principal place of business is located at 00000 Xxxxxxx Xxxxx,
Xxxxxxxx, XX 00000.
Whereas, the Corporation wishes to assure itself of the services of the
Consultant for the period provided in this Agreement, and the Consultant is
willing to provide his services to the Corporation for said period under the
terms and conditions hereinafter provided.
Now, therefore, in consideration of the premises and of the mutual
promises and covenants herein contained, the parties hereto agree as follows:
Article I
Engagement
The Corporation agrees to and does hereby engage the Consultant, and
the Consultant agrees to and does hereby accept engagement by the Corporation
for period commencing on the date hereof and ending on December 31, 2003. The
period during which Consultant shall serve in such capacity shall be deemed the
"Engagement Period" and shall hereinafter be referred to as such. The
Corporation also acknowledges that the Consultant has consulted with the
Corporation since February 2003.
Article II
Services
Section 2.1 The Consultant shall render to the Corporation the services
described below, with respect to which the Consultant shall apply his best
efforts and devote such time as shall be reasonably necessary to perform his
duties hereunder and advance the interests of the Corporation. The Consultant
shall report directly to the Chief Executive Officer of the Corporation and to
such persons as the Chief Executive Officer shall direct.
Section 2.2 The services to be rendered by the Consultant to the
Corporation shall consist of (a) developing an in-depth familiarization with the
Corporation's business objectives and bring to its attention potential or actual
opportunities which meet those objectives or logical extensions thereof; (b)
advising the Corporation with respect to its corporate development including
such factors as position in competitive environment, financial performances vs.
competition, strategies, operational viability, etc.; (c) identifying
prospective suitable acquisitions for the Corporation, perform appropriate
diligence investigations with respect thereto, advising the Corporation with
respect to the desirability of pursuing such prospects, and assisting the
Corporation in any negotiations which may ensue therefrom; and (d) introducing
the Corporation to some of its contacts which may have an interest in investing
in the Corporation or any of its potential projects.
Section 2.3 The services to be rendered by the Consultant to the
Corporation shall under no circumstances include (a) any activities which could
be deemed by the Securities and Exchange Commission ("SEC") to constitute
investment banking or any other activities requiring the Consultant to register
as a broker-dealer under the Securities Exchange Act of 1934; (b) any activities
which could be deemed by the SEC to be in connection with the offer or sale of
securities; or (c) any activities which directly or indirectly promote or
maintain a market for the Corporation's securities.
Article III
Compensation
Section 3.1 For the services and duties to be rendered and performed by
the Consultant during the Engagement Period and in consideration of the
Consultant's having entered into this Agreement, the Corporation agrees to issue
to the Consultant 140,000 shares of common stock of the Corporation ("Shares").
The Corporation shall register the Shares on a S-8 registration statement.
The Consultant understands that any Shares he receives will not be
registered under the Securities Act of 1933, as amended (the "Securities Act")
or the securities laws of any state thereof, nor is such registration
contemplated. The Consultant understands and agrees further that the Shares must
be hold and may not be transferred until and unless the Shares are registered
under the Securities Act and the securities laws of any other jurisdiction or an
exemption from registration under the Securities Act and such laws is available.
The Consultant understands that legends stating that the Shares have not been
registered under the Securities Act and the securities laws of any other
jurisdiction and setting out or referring to the restrictions on the
transferability and resale of the Shares will be placed on all documents
evidencing the Shares.
Article IV
Trade Secrets
Consultant agrees that any trade secrets, material non-public
information or any other like information of value relating to the business of
the Corporation or any of its affiliates, including but not limited to,
information relating to pricing, potential transactions, processes, systems,
methods, formulae, patents, patent application, research activities and plans,
contracts, names of potential sellers and brokers, which he has acquired during
his engagement by the Corporation or any of its affiliates or which he may
hereafter acquire during the Engagement Period as the result of any disclosures
to him, or in any other way, shall be regarded as held by the Consultant in a
fiduciary capacity solely for the benefit of the Corporation, its successors or
assigns, and shall not at any time, either during the term of this Agreement or
thereafter, be disclosed, divulged, furnished, or made accessible by the
Consultant to anyone, or be otherwise used by his except in the course of
business of the Corporation or its affiliates. The covenants set forth herein
shall survive the expiration of the Engagement Period and termination of this
Agreement and shall remain in full force and effect regardless of the cause of
such termination.
Article V
Assignment
This Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation under this Agreement. Consultant agrees that if this Agreement is so
assigned, all the terms and conditions of this Agreement shall be between
assignee and himself with the same force and effect as if said Agreement had
been made with such assignee in the first instance. This Agreement shall not be
assigned by the Consultant without the express written consent of the
Corporation.
Article VI
Miscellaneous
Section 6.1 Consultant is and shall at all times be an independent
contractor with respect to the services that it is rendering to Corporation
pursuant to this Agreement and Consultant shall at no times be an affiliate,
employee, agent, partner or representative of Corporation and Consultant shall
not take any action nor in any way hold itself out as such. At no time shall
Consultant have any authority or power to bind the Corporation or to act on
behalf of the Corporation in any manner, including without limitation, making
any direct or indirect representation or covenant by the Corporation to any
third party.
Section 6.2 This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, without reference
to the choice of law principles thereof.
Section 6.3 Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision is unenforceable or invalid under such law, such provision
shall be ineffective only to the extent of such unenforceability or invalidity,
and the remainder of such provision and the balance of this Agreement shall in
such event continue to be binding and in full force and effect.
Section 6.4 This Agreement may be terminated by either party upon
3-days' prior written notice.
IN WITNESS WHEREOF, the parties hereto have executed the above
Agreement as of the day and year first above written:
Consumers Financial Corporation
By: /s/ Xxx Xxxxxx
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Name:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx