CONSULTING AGREEMENT
This Agreement is made and entered into as of this 7th day of March,
2002, by and between The Xxxxxxx Corporation, a Nevada corporation (the
"Company"), and Xxxxxxxxx Financial LLC, a New Jersey limited liability company
(the "Consultant").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Purpose. The Company hereby retains the Consultant during the
term specified in Section 2 hereof to render consulting advice to the Company as
a financial Consultant relating to financial and similar matters and to assist
the Company in the development of interest in the Company and its wholly-owned
subsidiary Xxxxxxx Pharma Inc., upon the terms and conditions as set forth
herein.
2. Term. This Agreement shall be effective for a period of twelve
(12) months commencing as of the date of this Agreement, provided, however, that
this Agreement may be terminated by the Company, in its sole discretion, at any
time.
3. Duties of Consultant. During the term of this Agreement, the
Consultant will provide the Company with such regular and customary consulting
advice as is reasonably requested by the Company, provided that the Consultant
shall not be required to undertake duties not reasonably within the scope of the
consulting advisory service contemplated by this Agreement. In performance of
these duties, the Consultant shall provide the Company with the benefits of its
best judgment and efforts. It is understood and acknowledged by the parties that
Consultant shall be obligated to render advice, upon the request of the Company,
in good faith, but shall not be obligated to spend any specific amount of time
in doing so. The Consultant represents and warrants to the Company that it is
experienced and competent to provide the consulting duties indicated in this
Agreement and that the Company has agreed to enter into this Agreement in
reliance on this representation and warranty. The Consultant's duties may
include, but will not necessarily be limited to:
(a) Dissemination of corporate information regarding the
Company to the investment community at large so long as such corporate
information is pre-approved by the Company in writing.
(b) Rendering advice and assistance in connection with the
preparation of reports to stockholders and press releases so long as such
reports and press releases are pre- approved by the Company in writing.
(c) Assisting in the Company's financial public relations,
including discussions between the Company and the financial community so long as
discussions are pre- approved by the Company in writing.
(d) Rendering advice with regard to internal operations,
including:
(1) advice regarding formation of corporate goals and
their implementation;
(2) advice regarding the financial structure of the
Company and its divisions or subsidiaries or any programs
and projects of such entities;
(3) advice concerning the securing, when necessary and if
possible, of additional financing through banks,
insurance companies and/or other institutions; and
(4) advice regarding corporate organization and
personnel.
(e) Rendering advice with respect to any acquisition program
of the Company to the extent the Company asks the Consultant for advice on this
matter.
(f) Providing introductions to the investment community.
(g) Rendering advice regarding a future public or private
offering of securities of the Company or of any subsidiary.
4. Relationships with Others. The Company acknowledges that the
Consultant and each of its officers, directors and partners are in the business
of providing financial services and consulting advice (of all types contemplated
by this Agreement) to others. Nothing herein contained shall be construed to
limit or restrict the Consultant or its affiliates from rendering such services
or advice to others; provided, however, that to the extent that the Company
indicates to the Consultant that certain information is confidential and/or
proprietary to the Company, the Consultant will not disclose such information to
third parties without the written approval of the Company.
5. Expenses. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all reasonable
out-of-pocket expenses incurred by the Consultant in connection with services
rendered by the Consultant to the Company pursuant to this Agreement, including,
but not limited to, hotel, food and associated expenses and all charges for
travel incurred by the Consultant in connection with services rendered by the
Consultant to the Company pursuant to this Agreement; provided, however that no
expense shall be incurred or be reimbursed by the Company without the prior
written consent of the Company. Expenses payable under this Section 6 shall not
include allocable overhead expenses of the Consultant, including, but not
limited to, attorneys' fees, secretarial charge, rent, etc.
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6. Compensation. As compensation for the services to be rendered by
the Consultant to the Company pursuant to Section 3 hereof, the Company shall
issue warrants to purchase up to 1,000,000 shares of its Common Stock, par value
$.0005 per share, upon the terms and conditions set forth in the Warrant
Agreement of even date herewith and attached hereto as Exhibit A.
7. Limitation Upon the Use of Advice and Services.
(a) The use of the Consultant's name in any report of the
Company, or any release or similar document prepared by or on behalf of the
Company, other than a report solely created and used internally by the Company,
must have the prior written approval of the Consultant unless the Company is
required by law to include the Consultant's name in such report or release, in
which event the Consultant will be furnished with a copy of such other report or
release using the Consultant's name in advance of publication by or on behalf of
the Company.
(b) The Consultant shall not disclose confidential information
which it learns about the Company as a result of its engagement hereunder,
except as such disclosure as may be reasonably required for Consultant to
perform its duties hereunder and which disclosure is pre-approved by the Company
in writing.
(c) During the term of this Agreement, the Consultant shall
not, without the prior written approval of the President of the Company,
directly or indirectly solicit, raid, entice, or induce any person who presently
is, or at any time during the term hereof shall be, an employee, independent
contractor, agent, director or officer of the Company to become employed by the
Consultant.
8. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of the remainder of this Agreement.
9. Miscellaneous.
(a) Any notice or other communication between the parties hereto
shall be sent by certified or registered mail, postage prepaid, or by facsimile:
(i) If to the Company, to:
The Xxxxxxx Corporation
The Kells Building
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Chief Executive Officer
with a copy to:
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Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
(ii) If to the Consultant, to:
Xxxxxxxxx Financial, LLC
0 Xxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Either party may change the foregoing address by notice given
pursuant to this Section 9(a). Such notice or other communication shall be
deemed to be given on the date of mailing or transmissions via facsimile.
(b) This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the Consultant.
(c) This Agreement shall be construed and interpreted in
accordance with the laws of the State of Pennsylvania, without giving effect to
conflicts of laws rules of such states. Each of the parties hereto hereby agree
that any action, proceeding, or claim against it arising out of, or in any way
relating to, this Agreement shall be brought and enforced in the state or
federal courts located in the State of Pennsylvania, and irrevocably submit and
waive any objection to such jurisdiction.
(d) Nothing herein shall constitute Consultant as an employee or
agent of the Company, except to such extent as might hereinafter be agreed upon
for a particular purpose. Except as might hereinafter be expressly agreed,
Consultant shall not have the authority to obligate or commit the Company in any
manner whatsoever.
(e) This Agreement shall not be assignable by any party except
to successors to all or substantially all of the business of either the
Consultant or the Company nor may this Agreement be terminated by either party
for any reason whatsoever without the prior written consent of the other party,
which consent may be arbitrarily withheld by the party whose consent is
required.
(f) This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and may not be modified
or amended except by a writing duly signed by the party against whom enforcement
of the modification or amendment is sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date hereof.
THE XXXXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Chief Executive Officer
XXXXXXXXX FINANCIAL, LLC
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Member
