EXHIBIT 4.2
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 Xxxxxxx Xxxxx (hereinafter "STONE").
1. CONDITIONS. This Agreement will not take effect, and STONE will have no
obligation to provide any service whatsoever, unless and until CLIENT returns a
signed copy of this Agreement to STONE (either by mail or facsimile copy). In
addition, CLIENT shall be truthful with STONE 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 XXXXX the right to
terminate this Agreement and all moneys, and other forms of compensation, paid
or owing as of the date of termination by STONE shall be forfeited without
further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with STONE in
carrying out the purposes of this Agreement, keep STONE 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, STONE will perform the
following services for CLIENT:
2.1 ADVICE AND COUNSEL. STONE 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. STONE 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.
STONE will participate and assist CLIENT in the due diligence process, where
possible, on all proposed financial transactions affecting CLIENT of which STONE
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 STONE shall mutually agree, in writing, for
any additional duties that STONE 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. STONE 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 STONE provided for herein
which requires CLIENT to provide certain information to assist STONE 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 STONE to complete the work. The services of STONE
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. STONE 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 STONE regarding satisfying all or part
of Client's business and corporate strategic planning needs, STONE 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. STONE MAKES NO GUARANTEE THAT STONE 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 STONE 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 STONE.
3.1 FEES. CLIENT shall issue to STONE 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 STONE 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: STONE SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR HEREIN
IF PAYMENT IS NOT RECEIVED BY STONE WITHIN 15 DAYS OF MUTUAL EXECUTION OF THIS
AGREEMENT BY THE PARTIES. IN ADDITION, STONE'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 STONE 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 STONE, 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
STONE 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 STONE during the term of this
Agreement, Client shall pay STONE, 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 STONE and the introduction by CLIENT during the term of this
Agreement, Client shall pay STONE, eight (8) percent of the total value of the
transaction. Such percentage(s) shall be paid to STONE 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 STONE 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 STONE 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 STONE invoice for same.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless STONE, 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 STONE 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. STONE and CLIENT shall each
require their employees, agents, affiliates, other licensees, and others who
will have access to the information through STONE and CLIENT respectively, to
first enter appropriate non-disclosure Agreements requiring the confidentiality
contemplated by this Agreement in perpetuity.
5.2 STONE 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 STONE 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
STONE or its representatives.
6. MISCELLANEOUS PROVISIONS.
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified and
supplemented only by written agreement of STONE 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 STONE 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,
STONE OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, STONEORNEYS,
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
--
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 MSTONEER 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 STONE 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 STONE, 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 STONE in which STONE is directly
and actively involved, and never without STONE'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 STONE, without the prior written approval of STONE. STONE 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,
STONE 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/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
