PROFESSIONAL CONSULTING AGREEMENT
THIS PROFESSIONAL CONSULTING AGREEMENT is made this ______ day of December 1998,
by and between Xxxxx Xxxxxxx ("Consultant"), and Imaging Diagnostic Systems,
Inc. ("Client"), a Florida corporation with principal offices located at 0000 XX
00xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, Consultant renders and has rendered corporate, finance, public
relations and other consulting services to the Company, and
WHEREAS, Client wishes to retain Consultant to provide such services, and
Consultant and Client wish to formalize in a written agreement the terms and
conditions under which consultant will provide such services to Client;
NOW, THEREFORE, for the mutual promises and other consideration described
herein, the parties hereto agree as follows:
1. INFORMATION TO BE FURNISHED BY CLIENT. Client shall furnish Consultant with
current public information about Client, including any and all statements and
reports filed by Client with the United States Securities and Exchange
Commission, its most recent Annual Report to Shareholders and shall also provide
any other public information reasonably requested by Consultant to assist
Consultant in providing services to Client ("Client Information").
2. SERVICES PROVIDED AND TO BE PROVIDED BY CONSULTANT. Consultant has provided
since November 1998, and will continue to provide, for the term of this
Agreement, corporate, finance, public relation and other advice and consultation
to Client as requested by the Client in consideration of the compensation
provided under this Agreement. As part of its duties, the Consultant has and
shall, on request of the Company, provide advice and guidance in the following
areas:
a. Assist the Company in long-term financial planning, corporate
reorganization and expansion;
b. Advise the Client about operational and structural
considerations with regard to the company's existing
resources and potential growth requirements.
c. Advise the Client regarding the feasibility of financial and
operational considerations connected with the proposed
projects.
d. Attend the RSNA on behalf of the Client.
e. Perform such other lawful consulting and advisory services
relating to such aspects of the Client, its management,
operation and development or otherwise as the principal
executive, financial, sales and/or operating officer(s) of the
Client may reasonably request consistent with the provisions
of this Agreement (hereafter collectively referred to as the
"Services").
f. Notwithstanding anything herein to the contrary, Consultant
shall not provide services pursuant to this Agreement in
connection with the offer or sale of securities or other
capital-raising transaction.
Consultant will provide such assistance on an as-needed basis at the request of
the Company's president or other officers. Consultant will respond to all
telephone calls from the aforementioned persons within a time period of 24 hours
from the time the call was placed. In addition, Consultant will attend board of
directors' and committee meetings as a guest and meet with management from time
to time, if requested by the Company to do so.
3. COMPENSATION FOR SERVICES. In consideration of Consultant's provision of past
and future services described in paragraph 2, Client's Board of Directors shall
authorize the issuance of 100,000 shares of the Company's Common Stock
("Shares") to be registered pursuant to an S-8 Registration Statement.
4. TERM AND TERMINATION. This Agreement shall become effective as of November 1,
1998, and shall remain in effect for one year. Client and Consultant may
mutually agree to extend this Agreement for an additional period.
5. REIMBURSEMENT FOR EXPENSES. Consultant shall bear all of its expenses and
costs without reimbursement from Client.
6. RELATIONSHIP OF PARTIES. This Agreement shall not constitute an
employer-employee relationship. It is the intention of each party that the
Consultant shall be an independent contractor, and not an employee of the
Client. Consultant shall not have the authority to act as the agent of the
Client, except when such authority is specifically delegated to Consultant
herein or by any officer of the Client. Subject to the express provisions
herein, the manner and means utilized by Consultant in the performance of
Consultant's Services hereunder shall be the sole control of the Consultant.
7. REPRESENTATIONS AND WARRANTIES.
a. Consultant represents and warrants that services to be provided and
materials to be produced or developed by Consultant under this Agreement will be
performed, produced, or developed by competent, trained personnel in a
workmanlike manner. Consultant and its personnel shall comply with all
applicable statues, rules and regulations governing all aspects of the services
to be performed under this Agreement; provided that, as described in paragraph 1
of this Agreement, Client shall be fully responsible to assure all Client
Information is accurate and complete. Client understands and acknowledges that
Consultant cannot guarantee that the services provided hereunder will achieve
any particular objective or fulfill any specified goals. Client further
understands and acknowledges that Consultant is not registered or licensed as an
investment advisor, financial planner, or broker/dealer, nor is Consultant
licensed as principal or representative of any of the foregoing and that, by
entering into this Agreement, Consultant is not undertaking to provide, nor will
Consultant provide, any services that require any such registration or
licensing. OTHER THAN THE FOREGOING EXPRESS WARRANTIES, CONSULTANT MAKES NO
WARRANTIES WITH RESPECT TO THE QUALITY OF THE GOODS AND SERVICES TO BE PROVIDED
HEREUNDER OR ANY RESULTS TO BE ACHIEVED, AND HEREBY EXPRESSLY DISCLAIMS THE
EXISTENCE OF ANY SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT
LIMITATION AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CONSULTANT SHALL HAVE NO LIABILITY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CLIENT AS A RESULT OF ANY
FAILURE ON THE PART OF CONSULTANT IN THE PERFORMANCE OF ITS DUTIES HEREUNDER.
b. In order to induce the Company to issue the Shares, recognizing that
the Company will be relying on the information and on the representations set
forth below, you hereby represent, warrant, and agree as follows:
(i) I have determined that the purchase of the shares of the
Company (the "Shares") is a suitable investment for me and that I am a
person who is able to bear economic risks including a total loss of an
investment in the Shares.
(ii) I have acknowledge and am aware that except for the three
day rescission rights provided under Florida law (or other rights under
other applicable law), I am is not entitled to cancel, terminate or
revoke this subscription, and any agreements of mine in the connection
herewith shall survive my death or disability.
(iii) I have had the opportunity to ask questions of, and
receive answers from management of the Company regarding the terms and
conditions of this Agreement, and the transactions contemplated
thereby, as well as the affairs of the Company and related matters.
I may have access to whatever additional information concerning the
Company, its financial condition, its business, its prospects, its
management, its capitalization, and other similar matters that I or my
purchaser representative, if any, desires, provided that the Company
can acquire such information without unreasonable effort or expense. In
addition, as required by Section 517.061(11)(a)(3), Florida Statutes,
and Rule 3E-500.05(a) thereunder, I and my purchaser representative may
have, at the offices of the Company, at any reasonable hour, after
reasonable prior notice, access to the materials set forth in the Rule
which the Company can obtain without unreasonable effort or expense.
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(iv) I have had the opportunity to obtain additional
information necessary to verify the accuracy of the information
referred to in subparagraph (e) hereof.
I hereby agree to indemnify and hold harmless the Company its
respective officers, directors, shareholders, employees, agents and attorneys
against any and all losses, claims, demands, liabilities and expenses (including
reasonable attorney fees, expert witness and accounting fees and other
disbursements and costs or other expenses) incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person) to which any such
indemnified party may become subject under the Act, under any other statute, at
common law or otherwise, insofar as such losses, claims, demands, liabilities
and expenses (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in this Agreement, or (b) arise
out of or are based upon any breach of any representation, warranty or agreement
contained herein.
The representations, warranties and agreements contained herein shall
survive the delivery of, and payment for, the Shares.
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FLORIDA LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN
FLORIDA, ANY SALE MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS
AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE
COMPANY, AN AGENT OF THE COMPANY OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER
THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER
OCCURS LATER. PAYMENTS FOR TERMINATED SUBSCRIPTIONS VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT INTEREST.
8. MISCELLANEOUS.
a. This Agreement shall be interpreted and construed in accordance with
the laws of the State of Florida. The parties agree that jurisdiction and venue
of any dispute arising hereunder shall be in Broward County, Florida.
b. Any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, shall be
submitted to one arbitrator and settled by arbitration in Fort Lauderdale
Florida, in accordance with the rules, then obtaining, of the American
Arbitration Association. Any reward made by such arbitrator shall be final,
binding, and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
c. Neither party may assign its rights or duties under this Agreement
without the express prior written consent of the other party, except that
Consultant may assign to any other party, without Client's consent, its right to
receive all or any portions of the fees and expenses due and owing to it.
d. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. The terms of this Agreement may be altered
only by written agreement between the parties. The failure of either party to
object to or take affirmative action with respect to any conduct of the other
which is in violation of the terms of this Agreement shall not be construed as a
waiver of the violation or breach, or of any future similar violation or breach.
e. In the event of any cause of action, arbitration or litigation
arising hereunder, all costs and reasonable attorney's fees of the prevailing
party, including, without limitation, attorney's fees and costs at all
administrative and appellate levels and in all bankruptcy proceedings, shall be
paid by the non-prevailing party.
f. This Agreement may be executed in any number of counterparts, by
original or facsimile signature, all of which shall be deemed to be an original,
but all of which shall be deemed to constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
IMAGING DIAGNOSTIC SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx, President /s/Xxxxx Xxxxxxx
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