EXHIBIT 4.3
BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated July 1, 2002 and is entered into by
and between Imaging Technologies Corporation. (hereinafter "ITEC" or "CLIENT")
and Xxxx XxXxxxxx (hereinafter "McDONALD").
1. CONDITIONS. This Agreement will not take effect, and MCDONALD will have no
obligation to provide any service whatsoever, unless and until CLIENT returns a
signed copy of this Agreement to MCDONALD (either by mail or facsimile copy). In
addition, CLIENT shall be truthful with MCDONALD in regard to any relevant or
material information provided by CLIENT, verbally or otherwise which refers,
relates, or otherwise pertains to the Client's business, this Agreement or any
other relevant transaction. Breach of either of these conditions shall be
considered a material breach and will automatically xxxxx XXXXXXXX the right to
terminate this Agreement and all moneys, and other forms of compensation, paid
or owing as of the date of termination by MCDONALD shall be forfeited without
further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with MCDONALD
in carrying out the purposes of this Agreement, keep MCDONALD informed of any
developments of importance pertaining to Client's business and abide by this
Agreement in its entirety.
2. SCOPE AND DUTIES. During the term of this Agreement, MCDONALD will perform
the following services for CLIENT:
2.1 ADVICE AND COUNSEL. MCDONALD will provide advice and counsel regarding
Client's strategic business plans, strategy and negotiations with potential
business strategic partnering, corporate planning and or other general business
consulting needs as expressed by CLIENT.
2.2 MERGERS AND ACQUISITIONS. MCDONALD will provide assistance to CLIENT, as
mutually agreed, in identifying merger and / or acquisition candidates,
assisting in any due diligence process, recommending transaction terms and
providing advice and assistance during negotiations, as needed.
2.3 CLIENT AND/OR CLIENT'S AFFILIATE TRANSACTION DUE DILIGENCE.
MCDONALD will participate and assist CLIENT in the due diligence process, where
possible, on all proposed financial transactions affecting CLIENT of which
MCDONALD is notified in writing in advance, including conducting investigation
of and providing advice on the financial, valuation and stock price implications
of the proposed transaction(s).
2.5 ADDITIONAL DUTIES. CLIENT and MCDONALD shall mutually agree, in writing, for
any additional duties that MCDONALD may provide to CLIENT for compensation paid
or payable by CLIENT under this Agreement. Although there is no requirement to
do so, such additional agreement(s) may be attached hereto and made a part
hereof by written amendments to be listed as "Exhibits" beginning with "Exhibit
A" and initialed by both parties.
2.6 STANDARD OF PERFORMANCE. MCDONALD shall devote such time and efforts to the
affairs of the CLIENT as is reasonably necessary to render the services
contemplated by this Agreement. Any work or task of MCDONALD provided for herein
which requires CLIENT to provide certain information to assist MCDONALD in
completion of the work shall be excused (without effect upon any obligation of
CLIENT) until such time as CLIENT has fully provided all information and
cooperation necessary for MCDONALD to complete the work. The services of
MCDONALD shall not include the rendering of any legal opinions or the
performance of any work that is in the ordinary purview of a certified public
accountant, or other licensed professional. MCDONALD cannot guarantee results on
behalf of CLIENT, but shall use commercially reasonable efforts in providing the
services listed above. If an interest is communicated to MCDONALD regarding
satisfying all or part of Client's business and corporate strategic planning
needs, MCDONALD shall notify CLIENT and advise it as to the source of such
interest and any terms and conditions of such interest.
2.7 NON-GUARANTEE. MCDONALD MAKES NO GUARANTEE THAT MCDONALD WILL BE ABLE TO
SUCCESSFULLY LOCATE A MERGER OR ACQUISITION TARGET AND IN TURN CONSUMMATE A
MERGER OR ACQUISITION TRANSACTION FOR CLIENT, OR TO SUCCESSFULLY COMPLETE SUCH A
TRANSACTION WITHIN CLIENT'S DESIRED TIME FRAME. NEITHER ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOR THE PAYMENT OF DEPOSITS TO MCDONALD BY CLIENT
PURSUANT TO FEE AGREEMENTS FOR SERVICES NOT CONTEMPLATED HEREIN SHALL BE
CONSTRUED AS ANY SUCH GUARANTEE. ANY COMMENTS MADE REGARDING POTENTIAL TIME
FRAMES OR ANYTHING THAT PERTAINS TO THE OUTCOME OF CLIENT'S NEEDS ARE
EXPRESSIONS OF OPINION ONLY, AND FOR PURPOSES OF THIS AGREEMENT ARE SPECIFICALLY
DISAVOWED.
3. COMPENSATION TO MCDONALD.
3.1 FEES. CLIENT shall issue to MCDONALD three million (3,000,000) shares of the
common stock of ITEC (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) for services rendered by MCDONALD under
this Agreement. Any such additional agreement(s) may, although there is no
requirement to do so, be attached hereto and made a part hereof as Exhibits
beginning with Exhibit A.
NOTE: MCDONALD SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT IS NOT RECEIVED BY MCDONALD WITHIN 15 DAYS OF MUTUAL EXECUTION
OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, MCDONALD's OBLIGATIONS UNDER THIS
AGREEMENT SHALL BE SUSPENDED IF ANY PAYMENT OWING HEREUNDER IS MORE THAN FIFTEEN
(15) DAYS DELINQUENT. FURTHERMORE, THE RECEIPT OF ANY FEES DUE TO MCDONALD UPON
EXECUTION OF THIS AGREEMENT ARE NOT CONTINGENT UPON ANY PRIOR PERFORMANCE OF ANY
DUTIES WHATSOEVER DESCRIBED WITHIN THIS AGREEMENT.
3.2 FEES FOR MERGER/ACQUISITION. In the event that MCDONALD, assists CLIENT and
/ or introduces CLIENT (or a CLIENT affiliate) to any third party, merger
partner(s) or joint venture(s) who then enters into a merger, joint venture or
similar agreement with CLIENT or CLIENT's affiliate, CLIENT hereby agrees to pay
MCDONALD advisory fees pursuant to the following schedule which are based on the
aggregate amount of such merger, joint venture or similar agreement with CLIENT
or CLIENT's affiliate. Advisory fees are deemed earned and shall be due and
payable at the first close of the transaction, however, in certain circumstances
when payment of advisory fees at closing is not possible, within 24 hours after
CLIENT has received the proceeds of such investment. This provision shall
survive this Agreement for a period of three years after termination or
expiration of this Agreement. In other words, the advisory fee shall be deemed
earned and due and payable for any funding, underwriting, merger, joint venture
or similar transaction which first closes within three years of the termination
or expiration of this Agreement as a result of an introduction as set forth
above.
MERGER/ACQUISITION. For a merger/acquisition entered into by CLIENT as a result
of the efforts of, or an introduction by MCDONALD during the term of this
Agreement, Client shall pay MCDONALD, fifteen (15) percent of the total value of
the transaction. For a merger/acquisition entered into by CLIENT as a result of
the efforts of MCDONALD and the introduction by CLIENT during the term of this
Agreement, Client shall pay MCDONALD, eight (8) percent of the total value of
the transaction. Such percentage(s) shall be paid to MCDONALD in the
same ratio of cash and / or stock as the transaction and paid within thirty (30)
following the close of such a transaction.
3.4 EXPENSES. CLIENT shall reimburse MCDONALD for reasonable expenses incurred
in performing its duties pursuant to this Agreement (including printing,
postage, express mail, photo reproduction, travel, lodging, and long distance
telephone and facsimile charges); provided, however, that MCDONALD must receive
prior written approval from CLIENT for any expenses over $5000. Such
reimbursement shall be payable within 7 seven days after CLIENT's receipt of
MCDONALD invoice for same.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless MCDONALD,
each of its officers, directors, employees and shareholders against any and all
liability, loss and costs, expenses or damages, including but not limited to,
any and all expenses whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever or howsoever caused by reason of any injury (whether to body,
property, personal or business character or reputation) sustained by any person
or to any person or property, arising out of any act, failure to act, neglect,
any untrue or alleged untrue statement of a material fact or failure to state a
material fact which thereby makes a statement false or misleading, or any breach
of any material representation, warranty or covenant by CLIENT or any of its
agents, employees, or other representatives. Nothing herein is intended to nor
shall it relieve either party from liability for its own willful act, omission
or negligence. All remedies provided by law, or in equity shall be cumulative
and not in the alternative.
5. CONFIDENTIALITY.
5.1 MCDONALD and CLIENT each agree to keep confidential and provide reasonable
security measures to keep confidential information where release may be
detrimental to their respective business interests. MCDONALD and CLIENT shall
each require their employees, agents, affiliates, other licensees, and others
who will have access to the information through MCDONALD and CLIENT
respectively, to first enter appropriate non-disclosure Agreements requiring the
confidentiality contemplated by this Agreement in perpetuity.
5.2 MCDONALD will not, either during its engagement by the CLIENT pursuant to
this Agreement or at any time thereafter, disclose, use or make known for its or
another's benefit any confidential information, knowledge, or data of the CLIENT
or any of its affiliates in any way acquired or used by MCDONALD during its
engagement by the CLIENT. Confidential information, knowledge or data of the
CLIENT and its affiliates shall not include any information that is, or becomes
generally available to the public other than as a result of a disclosure by
MCDONALD or its representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented only by written agreement of MCDONALD and CLIENT.
6.2 ASSIGNMENT. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The obligations of either party hereunder
cannot be assigned without the express written consent of the other party.
6.3 GOVERNING LAW; VENUE. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of California, without regard to its conflict of law doctrine. CLIENT
and MCDONALD agree that if any action is instituted to enforce or interpret any
provision of this Agreement, the jurisdiction and venue shall be San Diego,
California.
6.4 ATTORNEYS' FEES AND COSTS. If any action is necessary to enforce and collect
upon the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and costs, in addition to any other relief to which
that party may be entitled. This provision shall be construed as applicable to
the entire Agreement.
6.5 SURVIVABILITY. If any part of this Agreement is found, or deemed by a court
of competent jurisdiction, to be invalid or unenforceable, that part shall be
severable from the remainder of the Agreement.
7. ARBITRATION. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT,
MCDONALD OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES,
MCDONALDORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER
PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS
AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH LITIGATION.
WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY
ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES; B. THE PARTIES ARE WAIVING
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THEIR RIGHT TO SEEK REMEDY IN COURT, INCLUDING THEIR RIGHT TO JURY TRIAL; C.
PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT FROM COURT
PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK MODIFICATION OF RULING BY
THE ARBITRATORS IS STRICTLY LIMITED;
E. THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE ANY AND ALL
STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
F. EACH PARTY HEREBY AGREES TO SUBMIT THE DISPUTE FOR RESOLUTION TO THE AMERICAN
ARBITRATION ASSOCIATION, IN ORANGE COUNTY, CALIFORNIA WITHIN FIVE (5) DAYS AFTER
RECEIVING A WRITTEN REQUEST TO DO SO FROM THE OTHER PARTY;
G. IF EITHER PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON REQUEST, THEN
THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION PROCEEDING, BUT IS UNDER NO
OBLIGATION TO DO SO;
H. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE PLACE IN
ORANGE COUNTY, CALIFORNIA;
I. IF EITHER PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO RESIST
ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL UNSUCCESSFULLY
CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN ORANGE COUNTY,
CALIFORNIA, OVER ANY MMCDONALDER WHICH IS THE SUBJECT OF THIS AGREEMENT, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ITS LEGAL
FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF
SUCH LEGAL PROCEEDING OR ITS EFFORTS TO ENFORCE ITS RIGHTS TO ARBITRATION AS
PROVIDED FOR HEREIN;
J. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL AND
CONCLUSIVE AND AGREE TO ABIDE THEREBY;
K. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION.
8. TERM/TERMINATION. This Agreement is an agreement for the term of three (3)
years.
9. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby agrees
that MCDONALD may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, natural persons, corporations, limited liability companies,
partnerships, unincorporated businesses, sole proprietorships and similar
entities (hereinafter an "Opportunity" or ""Opportunities"").
CLIENT further acknowledges and agrees that the identity of the subject
Opportunities, and all other information concerning an Opportunity (including
without limitation, all mailing information, phone and fax numbers, email
addresses and other contact information) introduced hereunder are the property
of MCDONALD, and shall be treated as confidential and proprietary information by
CLIENT, it affiliates, officers, directors, shareholders, employees, agents,
representatives, successors and assigns. CLIENT shall not use such information,
except in the context of any arrangement with MCDONALD in which MCDONALD is
directly and actively involved, and never without MCDONALD's prior written
approval. CLIENT further agrees that neither it nor its employees, affiliates or
assigns, shall enter into, or otherwise arrange (either for it/him/herself, or
any other person or entity) any business relationship, contact any person
regarding such Opportunity, either directly or indirectly, or any of its
affiliates, or accept any compensation or advantage in relation to such
Opportunity except as directly though MCDONALD, without the prior written
approval of MCDONALD. MCDONALD is relying on CLIENT's assent to these terms and
their intent to be bound by the terms by evidence of their signature. Without
CLIENT's signed assent to these terms, MCDONALD would not introduce any
Opportunity or disclose any confidential information to CLIENT as herein
described. This non-circumvention provision shall remain in effect for a period
of 36 months following the initiation of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
Imaging Technologies Corporation
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chief Executive Officer
By: /s/ Xxxx XxXxxxxx
Xxxx XxXxxxxx
