FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the "Agreement") is entered this
27th. day of September, 2001 by and between M. Xxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx
and Xxxxxxxx Xxxxxx ("Consultants"), individual's, and CFI Mortgage, Inc. (OTC
BB: CFIM) ("Client"), a Delaware corporation, with reference to the following:
Preliminary Statement
A. The Client desires to be assured of the association and services of the
Consultants in order to avail itself of the Consultants experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and is
therefore willing to engage the Consultants upon the terms and conditions set
forth herein. Consultants desire to be assured, and Client desires to assure
Consultants, that, if Consultants associate with Client and allocates its
resources necessary to provide Client with its services as Client requires and
expects, Consultants will be paid the consideration described herein and said
consideration will be nonrefundable, regardless of the circumstances.
B. The Consultants agree to be engaged and retained by the Client and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultants on a non-exclusive basis, and
Consultants hereby accepts the engagement to become financial Consultants to the
Client and to render such advice, consultation, information, and services to the
Directors and/or Officers of the Client regarding general financial and business
matters including, but not limited to:
a. Strategic alliances, mergers and acquisitions;
b. Corporate planning, strategy and negotiations with potential strategic
business partners and/or other general business consulting needs as expressed by
Client;
c. Business development and business advertising;
d. E-Consulting providing business solutions;
e. Structuring and providing alternative sources for accounts receivable,
purchase order and other asset financing.
f. Due diligence processes and Capital structures;
g. Periodic reporting as to developments concerning the general financial
markets and public securities markets and industry which may be relevant or of
interest or concern to the Client or the Client's business.
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties hereto that the aforementioned services
to be provided by Consultants shall not involve any capital raising efforts or
promotion of the Client's securities. It shall be expressly understood that
Consultants shall have no power to bind Client to any contract or obligation or
to transact any business in Client's name or on behalf of Client in any manner.
It is expressly understood and agreed by Client that, in reliance upon Client's
representations, warranties and covenants contained herein, immediately upon
execution and delivery of this Agreement by Client, Consultants are setting
aside and allocating for the benefit of Client valuable resources (including,
without limitation, capital and reservation of work schedules of employees)
required to fulfill Consultants' obligation described in paragraph B.1. hereof.
In doing so, Consultants agree to forebear from undertaking other opportunities
and commitments (that would result in enrichment to Consultants) in order to be
available to provide Client the services contemplated by this Agreement.
2. Term. The term ("Term") of this Agreement shall commence on the date hereof
and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation, including, without
limitation, the obligation of Client to pay the nonrefundable consideration
described in paragraph B.4. hereof.
3. Due Diligence. The Client shall supply and deliver to the Consultants all
information relating to the Client Company's business as may be reasonably
requested by the Consultants to enable the Consultants to make an assessment of
the Client's company and business prospects and provide the consulting services
described in paragraph B.1. hereof.
4. Compensation and Fees. As consideration for Consultants entering into this
Agreement, Client agrees to pay and deliver to Consultants the following
consideration, which consideration is nonrefundable regardless of the
circumstances:
Client shall issue certificates representing an aggregate of one million five
hundred thousand (1,500,000) shares of free trading common stock (the "Shares"),
registered under S-8.
b. The Certificates shall be issued to the Consultants in the following manner:
M. Xxxxxx Xxxxx will receive five hundred thousand (500,000) shares. Xxxxxxx
Xxxxxxxxx will receive five hundred thousand (500,000) shares. Xxxxxxxx
Xxxxxx will receive five hundred thousand (500,000) shares.
The Shares, when issued to Consultants, will be duly authorized, validly issued
and outstanding, fully paid and nonassessable and will not be subject to any
liens or encumbrances.
Securities shall be issued to Consultants in accordance with a mutually
acceptable plan of issuance as to relieve securities or Consultants from
restrictions upon transferability of shares in compliance with applicable
registration provisions or exemptions.
After careful review and extensive discussions and negotiations between Client
and Consultants and their advisors, Client agrees that, when received by
Consultants, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Client further acknowledges and agrees that said
consideration is earned by Consultants: (1) upon Client's execution and delivery
of the Agreement and prior to the provision of any service hereunder; (2) in
part, by reason of Consultants' agreement to make its resources available to
serve Client and as further described in the Preliminary Statement and elsewhere
herein; and (3) regardless of whether Client seeks to terminate this Agreement
prior to consultants' delivery of any services hereunder. If Client takes any
action to terminate this Agreement or to recover any consideration paid or
delivered by Client to Consultants other than by reason of Consultants' gross
negligence or willful misconduct, Consultants shall be entitled to all available
equitable remedies, consequential and incidental damages and reasonable
attorneys' fees and costs incurred as a result thereof, regardless of whether
suit is filed and regardless of whether Client or Consultants prevail in any
such suit.
5. Representations, Warrants and Covenants. The Client represents, warrants and
covenants the Consultants as follows:
a. The Client has the full authority, right, power and legal capacity to enter
into this Agreement and to consummate the transactions, which are provided for
herein. The execution of this Agreement by the Client and its delivery to the
Consultants, and the consummation by it of the transactions which are
contemplated herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further authorization shall be
necessary on the part of the Client for the performance and consummation by the
Client of the transactions which are contemplated by this Agreement.
b. The business and operations of the Client have been and are being conducted
in all material respects in accordance with all applicable laws, rules and
regulations of all authorities, which affect the Client or its properties,
assets, businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Client or cause
an acceleration under any arrangement, agreement or other instrument to which
the Client is a party or by which any of its assets are bound. The Client has
performed in all respects all of its obligations which are, as of the date of
this Agreement, required to be performed by it pursuant to the terms of any such
agreement, contract or commitment.
6. Exclusivity; Performance; Confidentiality. The services of Consultants
hereunder shall not be exclusive, and Consultants and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultants agree that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultants pursuant to the terms of this Agreement.
Consultants shall be required to expend only such time as is necessary to
service Client in a commercially reasonable manner. The Consultants does not
guarantee that its efforts will have any impact upon the Client's business or
that there will be any specific result or improvement from the Consultants'
efforts. Consultants acknowledges and agree that confidential and valuable
information proprietary to Client and obtained during its engagement by the
Client, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Client, unless and until such information is
otherwise known to the public generally or is not otherwise
secret and confidential.
7. Independent Contractor. In its performance hereunder, Consultants and its
agents shall be an independent contractor. Consultants shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultants and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultants to provide services to Client at any specific time, or in
any specific place or manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. Arbitration and Fees. Any controversy or claim arising out of or relating to
this Agreement, or breach thereof, may be resolved by mutual agreement; or if
not, shall be settled in accordance with the Arbitration rules of the American
Arbitration Association in Irvine, California. Any decision issued therefrom
shall be binding upon the parties and shall be enforceable as a judgment in any
court of competent jurisdiction. The prevailing party in such arbitration or
other proceeding shall be entitled, in addition to such other relief as many be
granted, to a reasonable sum as and for attorney's fees in such arbitration or
other proceeding which may be determined by the arbitrator or other officer in
such proceeding. If collection is required for any payment not made when due,
the creditor shall collect statutory interest and the cost of collection,
including attorney's fees whether or not court action is required for
enforcement. The prevailing party in any such proceeding shall also be entitled
to reasonable attorneys' fees and costs in connection all appeals of any
judgment.
9. Notices. Any notice or other communication required or permitted hereunder
must be in writing and sent by either (i) certified mail, postage prepaid,
return receipt requested and First Class mail; or (ii) overnight delivery with
confirmation of delivery; or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: CFI Mortgage, Inc.
Attention: Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Consultant: Attention: M. Xxxxxx Xxxxx
00000 Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
0000 X. Xxxxxxxx Xxxxxx Xx.
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. Additional Provisions. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision and no
waiver shall constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. No supplement, modification,
or amendment of this Agreement shall be binding unless executed in writing by
all parties. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements or negotiations. There are no third party
beneficiaries of this Agreement. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
11. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Preliminary Statement. The Preliminary Statement is incorporated herein by
this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the
date first written above.
"Client"
--------
CFI Mortgage, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
"Consultants"
By: /s/ M. Xxxxxx Xxxxx
M. Xxxxxx Xxxxx
Consultant
By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Consultant
By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Consultant
