[EXHIBIT 10.2]
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), is made
effective as of September 19, 2006 (the "Effective Date"), by and
between International Imaging Systems, Inc., a Delaware
corporation (the "Company") and its wholly owned subsidiary,
Advanced Staffing International, Inc., a Florida corporation (the
"Subsidiary") and C. Xxx Xxxxx ("Xxxxx"). The Company and Xxxxx
are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
Whereas, the Company has been informed of a pending proposed
change its control and a pending stock purchase transaction; and
Whereas, the Subsidiary will continue its business
operations after consummation of the stock purchase transaction
as a wholly owned subsidiary of the Company; and
Whereas, upon completion of the stock purchase transaction,
Xxxxx will no longer be incumbent as the President and Chief
Executive Officer of the Company; and
Whereas, in addition to those positions, Xxxxx has, and now
is, President and Chief Executive Officer of the Subsidiary; and
Whereas, following completion of the stock purchase
transaction and the consequent change of control, the Company
desires Xxxxx to continue to manage and operate Advanced Staffing
International, Inc.; and
Whereas, Xxxxx is agreeable to continue to manage and
operate the Subsidiary for the Company; and
Whereas, the Parties have agreed that Xxxxx'x incumbency as
manager and operator of the Subsidiary, shall continue after the
change of control transaction on a consulting basis rather than
in an employer employee relationship; and
Whereas, Xxxxx is agreeable to accept continued engagement
as the manager and operator of the Subsidiary on commission basis
related directly to the Subsidiary's revenues;
Now, Therefore, in consideration of the mutual promises
contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
1. Term. The term of this Agreement (the "Term"), shall
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extend from the Effective Date and shall continue through August
31, 2007.
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2. Obligations.
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Xxxxx'x Services. Xxxxx hereby agrees to manage the
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operations and expansion of the Subsidiary subject to the
Company's Board of Directors in all ways that the Company
reasonably requests during the Term.
3. Confidentiality.
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(a) Xxxxx shall not divulge, disclose, furnish or make
accessible to anyone (other than in the regular course of his
performance of services for the Subsidiary and the Company under
this Agreement) any knowledge, information or documents
concerning the business, operations, plans, products or personnel
of the Subsidiary, unless expressly authorized by the Company in
writing.
(b) Xxxxx shall also keep confidential, and shall not
disclose to any third party without the advance written consent
of the Company any of the Subsidiary's proprietary information,
strategies, techniques or methods.
4. Consulting Fees.
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In consideration of the services to be provided by
Xxxxx pursuant to this Agreement, and the restrictions and
obligations imposed on Xxxxx during and after the Term, the
Subsidiary shall pay Xxxxx a consulting fee (the "Consulting
Fee") which shall amount to __% percent of the Subsidiary's gross
revenues from any source as and when received by the Subsidiary.
5. Expense Reimbursement. During the Term, the Subsidiary
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agrees to reimburse Xxxxx for pre-approved ordinary, necessary
and reasonable travel expenses incurred or expended by him in
connection with his performance of services under this Agreement,
payable within ten (10) days after presentation by Xxxxx of
proper expense statements or vouchers or such other supporting
receipts and documentation as the Subsidiary may reasonably
require.
6. Business Relationship. In furnishing services hereunder,
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Xxxxx is acting as an agent in relation to the Subsidiary. Xxxxx
shall continue to have the right to obligate and bind the
Subsidiary in any manner whatsoever or act in the name of the
Subsidiary. Nothing contained herein shall give, or is intended
to give, any rights of any kind to any third person. No
employment, partnership or joint venture is created by this
Agreement.
7. Representations and Warranties. The Parties hereby
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represent and warrant: (i) that they each have full power and
authority to execute this Agreement individually or on behalf of
the entities they represent and perform their obligations
hereunder; (ii) this Agreement constitutes a valid and binding
obligation of each Party, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy or
insolvency laws or by equitable principles; (iii) that each
entity and individual Party hereto intends to be fully bound by
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the terms hereof; (iv) that each entity and individual Party
hereto has the unfettered right to enter into and perform this
Agreement on the terms and subject to the conditions hereof; and
(v) that neither the execution and delivery of this Agreement nor
the performance of any of their respective obligations hereunder
constitute or will constitute a violation or breach of, or a
default under, any agreement, arrangement or understanding, or
any other restriction of any kind, to which the respective entity
or individual is a Party or by which they are bound.
8. Assignment. This Agreement shall not inure to the
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benefit of and shall not be binding upon the executors,
administrators, successors and legal representatives of Xxxxx,
but shall inure to the benefit of and be binding upon the Company
and its successors and assigns. Xxxxx'x duties and obligations
hereunder are personal to him and cannot be assigned, delegated
or transferred without the express written consent of the
Company. The Company's rights, interest and obligations
hereunder may be assigned or transferred by the Company to, and
shall be assumed by and be binding upon, any successor or assign
of the Company. The term "successor" means, with respect to the
Company, any corporation or other business entity which, by
merger, consolidation, affiliation, purchase of assets, or
otherwise, acquires all or a material part of the assets of the
Company.
9. Indemnification. Xxxxx shall and hereby agrees to
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indemnify and hold harmless the Company and its shareholders,
directors, officers, employees and agents from and against any
and all claims, causes of action, injuries, damages, losses,
costs, expenses, or other liabilities, including reasonable
attorneys' fees, suffered by the Company as a result of or
arising from Xxxxx'x provision of consulting services to the
Company pursuant to this Agreement. The Company shall and hereby
agrees to indemnify and hold harmless Xxxxx from and against any
and all claims, causes of action, injuries, damages, losses,
costs, expenses, or other liabilities, including reasonable
attorneys' fees, arising from or in connection with his services
hereunder absent willful misconduct or gross negligence on his
part.
10. Survival. The provisions of Sections 3, 7 and 9 of
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this Agreement shall survive expiration of the Term. The Parties
recognize, acknowledge and agree that, despite the termination of
this Agreement, any provision of this Agreement may be used in
interpreting, implementing and enforcing the restrictions imposed
and rights created by Paragraphs 3, 7, and 9 of this Agreement.
11. Notices. All notices or other communications to be
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made, given or furnished pursuant to or under this Agreement
(each, a "Notice") shall be in writing and shall be deemed given
or furnished if addressed to the Party intended to receive the
same at the address of such Party as set forth below (i) upon
receipt when personally delivered at such address; (ii) four (4)
business days after the same is deposited in the United States
mail as first class registered or certified mail, return receipt
requested, postage prepaid; (iii) one business day following the
date the Notice is sent via facsimile, provided that the sending
Party receives electronic confirmation that delivery was
successfully completed; or (iv) one (1) business day after the
date of delivery of such Notice to a nationwide, reputable
commercial courier service specifying next day delivery:
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(a) If to Xxxxx:
C. Xxx Xxxxx
0000 X. Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
with a copy by the same means sent simultaneously to:
Xxxxxx X. Xxxxx, Esq.
000 X. 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
(b) If to the Company:
Xxxx Xxxxx, President
International Imaging Systems, Inc.
0000 X. Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
with a copy by the same means sent simultaneously to:
Xxxxxx Xxxxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxx, P.A.
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Any Party may change the address or fax number to which any
Notice is to be delivered to any other address or fax number
within the United States of America by furnishing written Notice
of such change at least fifteen (15) days prior to the effective
date of such change to the other Party in the manner set forth
above, but no such Notice of change shall be effective unless and
until received by such other Party. Rejection or refusal to
accept, or inability to deliver because of changed address or fax
number or because no Notice of changed address or fax number was
given, shall be deemed to be receipt of any such Notice. Any
Notice to an entity shall be deemed to be given on the date
specified in this paragraph, without regard to when such Notice
is delivered by the entity to the individual to whose attention
it is directed and without regard to the fact that proper
delivery may be refused by someone other than the individual to
whose attention it is directed. If a Notice is received by an
entity, the fact that the individual to whose attention it is
directed is no longer at such address or associated with such
entity shall not affect the effectiveness of such Notice.
Notices may be given on behalf of any Party by such Party's
attorneys.
12. Governing Law; Venue. This Agreement shall be governed
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by and construed in accordance with the laws of the State of
Florida, without regard to the principles of conflicts of law.
Any lawsuit or other legal proceeding relating to this Agreement
or the enforcement of any provision of this Agreement (including,
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but not limited to, actions for injunctive or equitable relief)
shall be brought or otherwise commenced only in the State or
Federal Courts located in the State of Florida, County of
Broward, and each Party expressly and irrevocably consents and
submits to the exclusive jurisdiction and venue of such courts
over that Party in connection with any legal proceeding properly
brought or commenced in accordance with this Section.
13. Injunctive Relief. The Parties hereto agree that the
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terms, covenants and restrictions of this Agreement relate to
special, unique and extraordinary matters and that such terms,
covenants and restrictions are reasonable as to the business
interests and confidential and proprietary information covered,
and that Xxxxx'x compliance with such terms, covenants and
restrictions is necessary to protect the business and goodwill of
the Company and the Subsidiary. The Parties further agree that
the damages that will be suffered by the Company as a result of
any breach or violation of any of the terms, covenants or
restrictions imposed by this Agreement would be irreparable and
difficult, if not impossible, to ascertain. Accordingly, the
Parties agree that, in the event of a breach, attempted breach,
or prospective breach by Xxxxx of any of the terms, covenants or
restrictions imposed by this Agreement, the Company and the
Subsidiary shall be entitled to obtain immediate temporary,
preliminary and permanent injunctive relief by any court of
competent jurisdiction to enforce, or determine the
enforceability of, the terms of this Agreement and enjoin any
activity which would violate any of the terms, covenants or
restrictions imposed by this Agreement. Xxxxx acknowledges and
agrees that the level of compensation paid to him during the Term
is anticipated to include amounts sufficient to constitute
adequate consideration both for the services to be rendered by
him to the Subsidiary as well as for his covenants and
commitments under this Agreement.
14. Independence of Action. Each Party enters into this
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Agreement freely, voluntarily, and in good faith.
15. Interpretation Of Agreement. The Parties to this
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Agreement acknowledge and agree that (a) this Agreement and its
reduction to final written form are the result of good faith
negotiations between the Parties; (b) the Parties have carefully
reviewed and examined this Agreement before executing it; and (c)
any statute or rule of construction that ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
16. Enforceability. If any provision of this Agreement is
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found or declared by a court of competent jurisdiction to be void
or unenforceable, the remaining provisions of this Agreement
shall continue in full force and effect and the Parties shall
endeavor in good faith to modify the void or unenforceable
provision to carry out the original intent of the Parties in a
legally enforceable manner.
17. Headings. The paragraph headings of this Agreement are
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not a substantive part of this Agreement and shall not limit or
restrict this Agreement in any way.
18. Counterparts. This Agreement may be executed in
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counterparts, one by each Party, with the same effect as if all
Parties hereto had signed the same document. This Agreement and
any amendments hereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and
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respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were
the original signed version thereof delivered in person. No
Party hereto shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement
or instrument was transmitted or communicated through the use of
a facsimile machine as a defense to the formation of a contract
and each such Party forever waives any such defense.
In Witness Whereof, the Parties have executed and entered
into this Agreement as of the date first above written.
INTERNATIONAL IMAGING SYSTEMS, INC.
for itself and for its wholly owned
Subsidiary, Advanced Staffing
International, Inc.
(Seal) By: /s/ C. Xxx Xxxxx
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Name: C. Xxx Xxxxx
Title: President
WITNESS:
Name:
/s/ C. Xxx Xxxxx
---------------------------------
Name: C. Xxx Xxxxx
WITNESS:
Name:
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