EXHIBIT 10.1
AMENDMENT TO THE
CONSULTING SERVICES AGREEMENT
This Amendment to the Consulting Services Agreement dated February ___,
1997 ("Amendment") is by and between, WESTMARK GROUP HOLDINGS, INC. ("Company")
and X.X. XXXXXX ("Consultant").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into that certain Consulting Agreement
dated July 25, 1996; and
WHEREAS, the parties wish to amend said Consulting Agreement;
WHEREAS, the Company is in the mortgage lending business; and
WHEREAS, Consultant desires to provide certain consulting services to the
Company; and
WHEREAS, the Company and Consultant desire to set forth in writing the
terms and conditions of their agreement and understanding concerning a one year
consulting arrangement; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, and considerations herein contained, the parties hereto agree as
follows:
1. ENGAGEMENT. Subject to the terms and provisions of this Agreement, the
Company hereby engages Consultant, as an independent contractor, to provide
consulting services ("Services") as set forth in Section 2 below. Consultant
hereby accepts such engagement and shall, during the term of this Agreement,
perform the Services as herein provided.
2. SERVICES. Subject to the terms and conditions of this Agreement, the
term "Services" shall mean providing certain consulting services to the Company
as may be mutually agreed upon by the parties, and attached hereto on Exhibit
"A". Consultant agrees to provide such Services on a non-exclusive basis and as
an independent contractor and not as an employee of the Company. Nothing in this
Agreement shall be construed to prevent Consultant from performing services on
behalf of himself or any person or entity.
3. COMPENSATION. For the Services performed by Consultant for the Company,
the Company will pay Consultant in full by issuing to Consultant an additional
22,000 shares of common stock of the Company, the issuance of which shall be
registered pursuant to a S-8 Registration Statement. Upon an agreed performance
level, said shares shall be issued to X.X. Xxxxxx & Co., Inc.
4. STATUS REPORTS. For the term of this Agreement, at the Company's
written request, Consultant shall prepare and submit to the Company a written
status report describing the status of any and all projects for which Consultant
has provided Services.
5. TERM. The term of this Agreement shall commence on the date hereof and
shall continue in full force and effect for a period of one year from the date
hereof.
6. AUTHORITY. Consultant understands and agrees that under the terms and
provisions of this Agreement, Consultant is not an employee, representative or
agent of the Company or any of its affiliates and therefore has no power or
authority whatsoever to act on behalf of, or bind the Company or any of its
affiliates, with respect to any matter or contract. Furthermore, this Agreement
does not create and shall not be construed to create any joint venture or
partnership relationship between the parties. No officer, employee, agent or
independent contractor of either party or their respective affiliates shall be
deemed at any time to be an employee, servant, agent or contractor of the other
for any purpose whatsoever.
7. CONFIDENTIALITY. In the course of the performance of Consultant's
duties hereunder, Consultant recognizes and acknowledges that Consultant may
have access to certain confidential and proprietary information of the Company
or any of its affiliates. Without the prior written consent of the Company,
Consultant shall not disclose any such confidential or proprietary information
to any person or firm, corporation, association, or other entity for any reason
or purpose whatsoever, and shall not use such information, directly or
indirectly, for Consultant's own behalf or on behalf of any other party.
Consultant agrees and affirms that all such information is the sole property of
the Company and that at the termination and/or expiration of this Agreement, at
the Company's written request, Consultant shall promptly return to the Company
any and all such information so requested by the Company.
The provisions of this Section 7 shall not, however, prohibit
Consultant from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Consultant;
(b) has been furnished or made known to Consultant by third parties
(other than those acting directly or indirectly for or on behalf of
Consultant) as a matter of legal right without restriction on its use or
disclosure;
(c) was in the possession of Consultant prior to obtaining such
information from the Company in connection with the performance of this
Agreement; or
(d) is required to be disclosed by law.
8. MISCELLANEOUS.
(a) ASSIGNMENT. All of the terms, provisions and conditions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
permitted assigns. This Agreement shall not be assigned
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or transferred by either party, nor shall any interest herein be assigned,
transferred, pledged or hypothecated by either party without the prior
written consent of the other party.
(b) APPLICABLE LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida.
(c) ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement
constitutes the entire agreement of the parties hereto and expressly
supersedes all prior and contemporaneous understandings and commitments,
whether written or oral, with respect to the subject matter hereof. No
variations, modifications, changes or extensions of this Agreement or any
other terms hereof shall be binding upon any party hereto unless set forth
in a document duly executed by such party or an authorized agent or such
party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
WESTMARK GROUP HOLDINGS, INC.
By________________________________________
Xxxx Xxxxxxxxxx, President
CONSULTANT
X.X. XXXXXX
By:_________________________________________
Name:_____________________________________
Title:______________________________________
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EXHIBIT A
Consultant shall perform advertising services for the Company.
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