CONSULTING SERVICES AGREEMENT
CONSULTING SERVICES AGREEMENT (this "Agreement") is entered into as of November
30, 2005 by and between Xxxxxx Financial Corporation (the "Company"), and
Xxxxxxx Xxxxx, (the "Consultant").
RECITALS
A. The Company desires to be assured of the association and services of
Consultant and to avail itself of Consultant's experience, skills,
abilities, knowledge and background and is therefore willing to
engage Consultant upon the terms and conditions set forth herein;
and
B. Consultant agrees to be engaged and retained by the Company upon the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements and obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
1. CONSULTING SERVICES. Consultant shall, on a part-time basis, provide
financial analysis and business development services to the Company
(the "Consulting Services"). Under no circumstances shall the
Consultant provide services relating to obtaining equity financing
for the Company.
2. TERM. The term of this Agreement shall commence as of the date
hereof and shall be effective a period of nine months (the "Term").
This agreement may be extended under the same terms by mutual
agreement between Consultant and the Company.
3. DIRECTION, CONTROL AND COORDINATION. Consultant shall perform the
Consulting Services under the sole direction and with the approval
of the Company's Board of Directors or an officer of the Company to
whom such direction is delegated by resolution of the Board of
Directors.
4. DEDICATION OF RESOURCES. Consultant shall devote such time,
attention and energy as is necessary to perform and discharge the
duties and responsibilities under this Agreement in an efficient,
trustworthy and professional manner.
5. STANDARD OF PERFORMANCE. Consultant shall use its best reasonable
efforts to perform its consulting services as an advisor to the
Company in an efficient, trustworthy and professional manner.
Performance of the Consulting Services shall be determined at the
sole discretion of the Consultant.
6. COMPENSATION. The Company shall pay Consultant $ 340,000 for its
services. The Company may pay Consultant by issuing Xxxxxx Financial
Corporation common stock at an issuance price of $ .30 (the "Common
Stock") in exchange for the Consulting Services. All such shares
shall be tradable without restriction. Under no circumstances shall
any of the Common Stock be returnable, refundable or cancelable by
the Company.
7. KNOWLEDGE OF INVESTMENT AND ITS RISKS. Consultant has knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of Consultant's investment in the
Common Stock. Consultant understands that an investment in the
Company represents a high degree of risk and there is no assurance
that the Company's business or operations will be successful.
Consultant has considered carefully the risks attendant to an
investment in the Company, and that, as a consequence of such risks,
Consultant could lose Consultant's entire investment in the Company.
8. ACCREDITED INVESTOR. The Consultant is an "Accredited Investor," as
that term is defined by Rule 501 of Regulation D promulgated under
the Securities Act.
9. DISCLOSURE. Consultant has reviewed information provided by the
Company in connection with the decision to purchase the Stock,
including Consultant's publicly-available filings with the SEC. The
Company has provided Consultant with all the information that
Consultant has requested in connection with the decision to purchase
the Common Stock. Consultant further represents that Consultant has
had an opportunity to ask questions and receive answers from the
Company regarding the business, properties, prospects and financial
condition of the Company. All such questions have been answered to
the full satisfaction of Consultant.
10. ADDITIONAL COVENANTS. Consultant covenants that it shall not engage
in any activities which are in connection with the offer or sale of
securities of the Company in a capital-raising transaction or
directly or indirectly promote or maintain a market for the
Company's securities.
11. CONFIDENTIAL INFORMATION. Consultant recognizes and acknowledges
that by reason of performance of Consultant's services and duties to
the Company (both during the Term and before or after it) Consultant
has had and will continue to have access to confidential information
of the Company and its affiliates, including, without limitation,
information and knowledge pertaining to products and services
offered, inventions, innovations, designs, ideas, plans, trade
secrets, proprietary information, advertising, distribution and
sales methods and systems, and relationships between the Company and
its affiliates and customers, clients, suppliers and others who have
business dealings with the Company and its affiliates ("Confidential
Information"). Consultant acknowledges that such Confidential
Information is a valuable and unique asset and covenants that it
will not, either during or for three (3) years after the term of
this Agreement, disclose any such Confidential Information to any
person for any reason whatsoever or use such Confidential
Information (except as its duties hereunder may require) without the
prior written authorization of the Company, unless such information
is in the public domain through no fault of the Consultant or except
as may be required by law. Upon the Company's request, the
Consultant will return all tangible materials containing
Confidential Information to the Company.
12. RELATIONSHIP. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the
parties, and may not be construed as an employment agreement. No
officer, employee, agent, servant, or independent contractor of
Consultant nor its affiliates shall at any time be deemed to be an
employee, agent, servant, or broker of the Company for any purpose
whatsoever solely as a result of this Agreement, and Consultant
shall have no right or authority to assume or create any obligation
or liability, express or implied, on the Company's behalf, or to
bind the Company in any manner or thing whatsoever.
13. NOTICES. Any notice required or desired to be given under this
Agreement shall be in writing and shall be deemed given when
personally delivered, sent by an overnight courier service, or sent
by certified or registered mail to the following addresses, or such
other address as to which one party may have notified the other in
such manner:
If to the Company: Xx. Xxxxxxxx Xxxxx
Xxxxxx Financial Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
If to the Consultant: Xx. Xxxxxxx Xxxxx
000 X/ 00xx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
17. APPLICABLE LAW. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the
State of New York.
18. SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any
other provisions of this Agreement.
19. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach by such party. No
waiver shall be valid unless in writing and signed by an authorized
officer of the Company or Consultant.
20. ASSIGNS AND ASSIGNMENT. This Agreement shall extend to, inure to the
benefit of and be binding upon the parties hereto and their
respective permitted successors and assigns; provided, however, that
this Agreement may not be assigned or transferred, in whole or in
part, by the Consultant except with the prior written consent of the
Company.
21. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties with respect to its subject matter. It may not be
changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
22. COUNTERPARTS. This Agreement may be executed by facsimile and in
counterparts each of which shall constitute an original document,
and both of which together shall constitute the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
XXXXXX FINANCIAL CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Xxxxxxx Xxxxx
------------------------------
