CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement"), is effective as of this 5th day of
October, 2004, between: Phoenix Holdings, LLC (the "Consultant"), with an
address at ________________________
_________________________________________________________________________ and
Xxxxxx Financial Corporation, ("Company"), with offices at 000 Xxxxxxx Xxxxxx,
Xxxxx 00X, Xxxxxx Xxxx, XX 00000
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management advisement, strategic planning and marketing in
connection with its business, together with advisory and consulting related to
shareholder management and public relations; and
WHEREAS, Consultant is qualified to provide the Company with the aforementioned
consulting services and is desirous to perform such services for the Company;
and
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company and wishes to contract with the Consultant regarding the
same believing it to be in its best interest,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render services
to the Company as a consultant upon the terms and conditions hereinafter set
forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this Agreement,
and shall terminate on October 4, 2005, unless earlier terminated in accordance
with paragraph 9 herein or extended as agreed to between the parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to undertake
for and consult with the Company concerning management, marketing, consulting,
strategic planning, corporate organization and structure, financial matters in
connection with the operation of the businesses of the Company, expansion of
services, acquisitions and business opportunities, and shall review and advise
the Company regarding its overall progress, needs and condition. The services of
Consultant shall not be exclusive nor shall Consultant be required to render any
specific number of hours or assign specific personnel to the Company or its
projects. The parties hereto acknowledge and agree that Consultant cannot
guarantee the results or effectiveness of any of the services rendered or to be
rendered by Consultant. Rather, Consultant shall conduct its operations and
provide its services in a professional manner and in accordance with good
industry practice.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning to fully
develop and enhance the Company's assets, general resources, products and
services; and
(b) Advise the Company relative to its operational needs, relating specifically
to past and future corporate transactional and mergers and acquisitions matters.
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(c) Advise the Company in relation to shareholder management and public
relations. Consultant shall be available for advice and counsel to the officers
and directors of the Company at such reasonable and convenient times and places
as may be mutually agreed upon. Except as foresaid, the time, place and manner
of performance of the services hereunder, including the amount of time to be
allocated by Consultant to any specific service, shall be determined at the sole
discretion of Consultant. It is agreed that all the information and materials
produced for the Company shall be the property of Consultant, free and clear of
all claims thereto by the Company, and the Company shall retain no claims of
authorship therein.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis, with all
approved data and information about it, its subsidiaries, its management, its
products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
5. COMPENSATION.
Upon execution of this Agreement and in settlement for its services hereunder,
Consultant shall receive $ 2,500.00 per month for the Term of this Agreement and
the following securities (the "Securities") 500,000 shares of the Company's
common stock. The Company covenants and agrees to use its best efforts to cause
the shares to be registered under the Securities Act of 1933. The Company
further covenants and agrees that within 15 days of the effectiveness of such
registration it will execute a written request to its transfer agent to prepare
and deliver, per Consultant's instructions, one or more stock certificates for
the Company's shares of common stock, in a freely tradable, non legend form.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing representation of the
accuracy of any and all facts, material information and data which it supplies
to Consultant and acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and otherwise
performing its advisory functions. Consultant in the absence of notice in
writing from the Company, will rely on the continuing accuracy of material,
information and data supplied by the Company. The Company agrees to indemnify,
hold harmless and defend Consultant, its agents or employees from any proceeding
or suit which arises out of or is due to the inaccuracy or incompleteness of any
material or information supplied by the Company to Consultant. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. COMPLIANCE WITH SECURITIES LAWS.
The Company understands that any and all compensation outlined in Section 5
shall be paid solely and exclusively as consideration for the aforementioned
consulting efforts made by Consultant on behalf of the Company as an independent
contractor. Consultant is a natural person. Any monies transferred to Company by
Consultant herein is not made with the intent to raise capital or to provide the
Company with capital. Consultant has been engaged to provide the Company with
traditional business, management, technical and operational consulting, and
related business services. Consultant's engagement does not involve the
promotion or marketing of the Company's securities (including it's common
stock), nor does it involve raising money for the Company.
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8. CONFIDENTIALITY
Consultant will not disclose, without the consent of the Company, any financial
or business information concerning the business, affairs and plans of the
Company which Consultant may receive from the Company, provided such information
is plainly marked in writing by the Company as being confidential (the
Confidential Information). Consultant will not be bound by the foregoing
limitation in the event (i) the Confidential Information is otherwise
disseminated and becomes public information, or (ii) Consultant is required to
disclose the Confidential Information pursuant to a subpoena or other judicial
order.
9. MISCELLANEOUS.
Termination: This Agreement shall be terminated immediately upon written notice
for material breach of this Agreement. Upon termination, and fees or expenses
due to Consultant shall become immediately payable. If terminated by Consultant,
Consultant shall return an amount of compensation received (including the
Securities) determined by multiplying the amount of compensation received by a
fraction the numerator being the amount of months the contract was effective for
prior to termination and the denominator being 12.
Modification: This Consulting Agreement sets forth the entire understanding of
the Parties with respect to the subject matter hereof. This Consulting Agreement
may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall be in
writing and shall be mailed or otherwise delivered in person or by facsimile
transmission at the address of such Party set forth above or to such other
address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Agreement is not assignable by either party unless agreed in
writing.
Severability: If any provision of this Consulting Agreement is invalid, illegal,
or unenforceable, the balance of this Consulting Agreement shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of this
Consulting Agreement shall be submitted to arbitration under the rules of the
American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Nassau County, NY. The interpretation and the enforcement of this
Agreement shall be governed by New York Law as applied to residents of the State
of New York relating to contracts executed in and to be performed solely within
the State of New York. In the event any dispute is arbitrated, the prevailing
Party (as determined by the arbiter(s)) shall be entitled to recover that
Party's reasonable attorney's fees incurred (as determined by the arbiter(s)).
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IN WITNESS WHEREOF, this Consulting Agreement has been executed by the Parties
as of the date first above written.
For and on behalf of
Xxxxxx Financial Corporation Phoenix Holdings, LLC.
/s/ Xxxxxxxx Xxxxx /s/ Xx XxXxxxxxxx
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Xxxxxxxx Xxxxx Xx XxXxxxxxxx
President &
Chief Executive Officer
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