EXHIBIT 4.5
CONSULTING AGREEMENT
AGREEMENT, effective as of the 1ST day of July, 2002, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 00000
Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxx Xxxxx (the "Consultant"), of
0000 Xxxx XxxXxxxxx Xxxxxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000.
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder relations, and other
projects as may be assigned by Brain Xxxxx, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable
times when and to the extent requested by, and subject to the direction of Xx.
Xxxxx.
3. Reasonable travel and other expenses necessarily incurred by Consultant
to render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive three million (3,000,000) shares (to be adjusted for any
splits, reverse splits, stock consolidations, or similar events occurring
between the date of this Agreement and the date that the shares are issued) of
the common stock of the Company.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be San Diego County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this Agreement
will be the property of the Consultant, subject to the irrevocable right and
license of the Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment of royalties.
Such rights and license will be exclusive during the term of this Agreement, and
any extensions or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic content of materials
created by the Consultant under this Agreement (as opposed to the form or format
of such materials) will be, and hereby are, deemed to be "works made for hire"
and will be the exclusive property of the Company. Each party agrees to execute
such documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims
or damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Imaging Technologies Corporation
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxx
Xxxxx Xxxxx Xxxxx Xxxxx
Chief Executive Officer
