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.
1
(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.
2
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)).
3
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
------------------ -----------------
Xxxxxxxx Xxxxx Xx XxXxxxxxxx
President &
Chief Executive Officer
4
