Exhibit 4.1 Advisory and Consulting Agreement
Number of Shares and Options
----------------------------
4.1(a) 11,111,111
4.1(b) 2,777,778
4.1(c) 2,777,777
4.1(d) 1,388,889
4.1(e) 2,777,778
4.1(f) 4,000,000
4.1(g) 4,000,000
Miscellaneous 333,333
9
Exhibit 4.1(a)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of October, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 00000
Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxx Benz, 000 Xxxxxxxx Xxxxxx, Xxx
Xxxxx, XX 00000 ("Consultant").
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 warrants to purchase eleven million, one
hundred eleven thousand and one hundred eleven (11,111,111) shares of
the common stock of the Company at an exercise price of $0.018 cents
per share.
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.
10
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
11
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: Company:
Xxxxx Benz Imaging Technologies Corporation
/s/ Xxxxx Benz By: /s/ Xxxxx Xxxxx
---------------------------- ----------------------------
Xxxxx Xxxxx
Chief Executive Officer
12
Exhibit 4.1(b)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of October, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 00000
Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxxx Xxxxx, 0000 Xxxxx Xxxxxxx Xx.,
Xxx Xxxxxxx, XX 00000 ("Consultant").
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 warrants to purchase two million, seven
hundred seventy seven thousand, seven hundred seventy eight
(2,777,778) shares of the common stock of the Company at an exercise
price of $0.018 cents per share.
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
13
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
14
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: Company:
Xxxxxx Xxxxx Imaging Technologies Corporation
/s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxx
---------------------------- -------------------------------
Xxxxx Xxxxx
Chief Executive Officer
15
Exhibit 4.1(c)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of October, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 00000
Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxxx Xxxxxxx, 0000 Xxxxxx Xxxxx
Xxxxx, Xx Xxxxx XX 00000 ("Consultant").
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 warrants to purchase two million, seven
hundred seventy seven thousand, seven hundred seventy seven
(2,777,777) shares of the common stock of the Company at an exercise
price of $0.018 cents per share.
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.
16
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.
17
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: Company:
Xxxxxx Xxxxxxx Imaging Technologies Corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
-------------------------- -----------------------------
Xxxxx Xxxxx
Chief Executive Officer
18
Exhibit 4.1(d)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of October, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 00000
Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, and Xxxxx Xxxxxxxxx, 000 Xxx Xxxxx,
Xxxxxxx Xxxxx, XX, 00000 ("Consultant").
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 warrants to purchase one million, three
hundred-eighty-eight thousand and eight hundred eighty nine
(1,388,889) shares of the common stock of the Company at an exercise
price of $0.018 cents per share.
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.
19
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.
20
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: Company:
Xxxxx Xxxxxxxxx Imaging Technologies Corporation
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxx
---------------------------- -------------------------------
Xxxxx Xxxxx
Chief Executive Officer
21
Exhibit 4.1(e)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of October
2, 2001, by and between Xxxx Xxxxxxxxx, 00000 Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX
00000 ("Consultant") and Imaging Technologies Corporation, a Delaware
Corporation (the "Company"), of 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on October 1, 2002, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic
planning to fully develop and enhance the Company's assets, resources, products
and services; and
(b) Advise the Company relative to its legal needs relating
specifically to its corporate transactional needs.
4. DUTIES OF THE COMPANY.
---------------------
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
22
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
2,777,778 shares of the Company's Common Stock with an exercise price at $.018
per share, which option shall expire on October 1, 2002 at 5:00 P.M. P.S.T.
Consultant in providing the foregoing services, shall not be responsible for any
out-of-pocket costs, including, without limitation, travel, lodging, telephone,
postage and Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
----------------------------------
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant represents
that he has knowledge of and is experienced in providing the aforementioned
services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
-----------
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
------------
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
-------
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
------
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
----------
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
------------
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
23
Disagreements: Any dispute or other disagreement arising from or out of
-------------
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Imaging Technologies Corporation Consultant
/s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxxxx
---------------------------- ----------------------------
Xxxxx xxxxx Xxxx Xxxxxxxxx
Chief Executive Officer
24
Exhibit 4.1(f)
BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated November 1, 2001and is entered into by
and between IMAGING TECHNOLOGIES CORPORATION, INC. (hereinafter "ITEC" or
"CLIENT") and XXXXX XXXXXX OF NEOTACTIX,INC. (hereinafter "NTX").
1. CONDITIONS. This Agreement will not take effect, and NTX will have no
-----------
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to NTX (either by mail or facsimile
copy). In addition, CLIENT shall be truthful with NTX 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
grant NTX the right to terminate this Agreement and all moneys, and other
forms of compensation, paid or owing as of the date of termination by NTX
shall be forfeited without further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with NTX
in carrying out the purposes of this Agreement, keep NTX 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, NTX will perform
-------------------
the following services for CLIENT:
2.1 ADVICE AND COUNSEL. NTX 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. NTX 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. NTX
-------------------------------------------------------------
will participate and assist CLIENT in the due diligence process, where
possible, on all proposed financial transactions affecting CLIENT of which
NTX 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).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, NTX will assist and
-----------------------------
cooperate with CLIENT in the development, editing and production of such
documents as are reasonably necessary to assist in any transaction covered
by this Agreement. However, this Agreement will not include the preparation
or procuring of legal documents or those documents normally prepared by an
attorney.
2.5 ADDITIONAL DUTIES. CLIENT and NTX shall mutually agree, in
------------------
writing, for any additional duties that NTX may provide to CLIENT for
25
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. NTX 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 NTX provided for herein
which requires CLIENT to provide certain information to assist NTX 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 NTX to complete the work. The services of NTX
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. NTX 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 NTX regarding
satisfying all or part of CLIENT's business and corporate strategic
planning needs, NTX 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. NTX MAKES NO GUARANTEE THAT NTX 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 NTX 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 NTX.
---------------------
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration
------------------------------------------------
for NTX entering into this Agreement, Client agrees to cause 8,000,000
shares of its common stock, par value $.001 per share, to be issued in
amounts of 4,000,000 shares to Xxxxxx X. Xxxxxxx and 4,000,000 shares to
Xxxxx Xxxxxx, affiliates of NTX. When issued, said shares shall be free
trading shares, registered with the U.S. Securities and Exchange Commission
on its Form S-8 or similar registration. The registration and issuance of
said shares shall take place by no later than 15 days following the
execution and delivery of this Agreement, and all costs in connection
therewith shall be borne by Client.
NOTE: NTX SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY NTX WITHIN 15 DAYS
OF MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, NTX'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 NTX 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 NTX, 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
26
hereby agrees to pay NTX 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 one year 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 a year 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 NTX during the term of this
Agreement, Client shall pay NTX, ten (10) percent of the total value of the
transaction. For a merger/acquisition entered into by CLIENT as a result of
the efforts of NTX and the introduction by CLIENT during the term of this
Agreement, Client shall pay NTX, eight (8) percent of the total value of
the transaction. Such percentage(s) shall be paid to NTX in the same ratio
of cash and / or stock as the transaction.
3.3 EXPENSES. CLIENT shall reimburse NTX 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 NTX must
receive prior written approval from CLIENT for any expenses over $ 500.
Such reimbursement shall be payable within 7 seven days after CLIENT's
receipt of NTX invoice for same.
3.4 ADDITIONAL FEES. CLIENT and NTX shall mutually agree upon any
----------------
additional fees that CLIENT may pay in the future for services rendered by
NTX under this Agreement. 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.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless NTX,
---------------
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 NTX 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. NTX and CLIENT
shall each require their employees, agents, affiliates, other licensees,
27
and others who will have access to the information through NTX and CLIENT
respectively, to first enter appropriate non-disclosure Agreements
requiring the confidentiality contemplated by this Agreement in perpetuity.
5.2 NTX 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
NTX 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 NTX or its representatives.
6. MISCELLANEOUS PROVISIONS.
-------------------------
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended,
----------------------------
modified and supplemented only by written agreement of NTX 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 NTX agree that if any action is instituted to enforce
or interpret any provision of this Agreement, the jurisdiction and venue
shall be Orange County, 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,
-----------
NTX OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
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;
28
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 MATTER 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
----------------
approximately six (6) months ending April 10, 2002.
9. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby
------------------
agrees that NTX 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 NTX, 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 NTX in which NTX is directly and actively involved, and
never without NTX'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 NTX, without the prior written approval of NTX. NTX 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, NTX 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 24 months
following the initiation of this agreement.
(SIGNATURE PAGE FOLLOWS)
29
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, INC. ( ITEC )
Print Name: Xxxxx Xxxxx
Sign Name: /s/ Xxxxx Xxxxx
-------------------------------
Title: Chairman & CEO
Date:
-------------------------------
Address: 00000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
NEOTACTIX, INC. ( NTX)
Print Name: Xxxxx X. Xxxxxx
Sign Name: /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Managing Partner
Date: -------------------------------
Address: 00000 Xxxxx Xxxx Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
30
Exhibit 4.1(g)
BUSINESS CONSULTING AGREEMENT
This Agreement (the "Agreement") is dated November 1, 2001and is entered into by
and between IMAGING TECHNOLOGIES CORPORATION, INC. (hereinafter "ITEC" or
"CLIENT") and XXXXXX X. XXXXXXX OF NEOTACTIX,INC. (hereinafter "NTX").
1. CONDITIONS. This Agreement will not take effect, and NTX will have no
-----------
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to NTX (either by mail or facsimile
copy). In addition, CLIENT shall be truthful with NTX 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
grant NTX the right to terminate this Agreement and all moneys, and other
forms of compensation, paid or owing as of the date of termination by NTX
shall be forfeited without further notice.
Upon execution of this Agreement, CLIENT agrees to fully cooperate with NTX
in carrying out the purposes of this Agreement, keep NTX informed of any
developments of importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
31
2. SCOPE AND DUTIES. During the term of this Agreement, NTX will perform
-------------------
the following services for CLIENT:
2.1 ADVICE AND COUNSEL. NTX 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. NTX 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. NTX
-------------------------------------------------------------
will participate and assist CLIENT in the due diligence process, where
possible, on all proposed financial transactions affecting CLIENT of which
NTX 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).
2.4 ANCILLARY DOCUMENT SERVICES. If necessary, NTX will assist and
-----------------------------
cooperate with CLIENT in the development, editing and production of such
documents as are reasonably necessary to assist in any transaction covered
by this Agreement. However, this Agreement will not include the preparation
or procuring of legal documents or those documents normally prepared by an
attorney.
2.5 ADDITIONAL DUTIES. CLIENT and NTX shall mutually agree, in
------------------
writing, for any additional duties that NTX 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. NTX 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 NTX provided for herein
which requires CLIENT to provide certain information to assist NTX 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 NTX to complete the work. The services of NTX
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. NTX 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 NTX regarding
satisfying all or part of CLIENT's business and corporate strategic
planning needs, NTX 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. NTX MAKES NO GUARANTEE THAT NTX 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 NTX 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.
32
3. COMPENSATION TO NTX.
---------------------
3.1 ISSUANCE OF SHARES FOR ENTERING INTO AGREEMENT. As consideration
------------------------------------------------
for NTX entering into this Agreement, Client agrees to cause 8,000,000
shares of its common stock, par value $.001 per share, to be issued in
amounts of 4,000,000 shares to Xxxxxx X. Xxxxxxx and 4,000,000 shares to
Xxxxx Xxxxxx, affiliates of NTX. When issued, said shares shall be free
trading shares, registered with the U.S. Securities and Exchange Commission
on its Form S-8 or similar registration. The registration and issuance of
said shares shall take place by no later than 15 days following the
execution and delivery of this Agreement, and all costs in connection
therewith shall be borne by Client.
NOTE: NTX SHALL HAVE NO OBLIGATION TO PERFORM ANY DUTIES PROVIDED FOR
HEREIN IF PAYMENT [CASH AND/OR STOCK] IS NOT RECEIVED BY NTX WITHIN 15 DAYS
OF MUTUAL EXECUTION OF THIS AGREEMENT BY THE PARTIES. IN ADDITION, NTX'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 NTX 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 NTX, 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 NTX 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 one year 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 a year 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 NTX during the term of this
Agreement, Client shall pay NTX, ten (10) percent of the total value of the
transaction. For a merger/acquisition entered into by CLIENT as a result of
the efforts of NTX and the introduction by CLIENT during the term of this
Agreement, Client shall pay NTX, eight (8) percent of the total value of
the transaction. Such percentage(s) shall be paid to NTX in the same ratio
of cash and / or stock as the transaction.
3.4 EXPENSES. CLIENT shall reimburse NTX 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 NTX must
receive prior written approval from CLIENT for any expenses over $ 500.
Such reimbursement shall be payable within 7 seven days after CLIENT's
receipt of NTX invoice for same.
33
3.4 ADDITIONAL FEES. CLIENT and NTX shall mutually agree upon any
----------------
additional fees that CLIENT may pay in the future for services rendered by
NTX under this Agreement. 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.
4. INDEMNIFICATION. The CLIENT agrees to indemnify and hold harmless NTX,
---------------
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 NTX 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. NTX and CLIENT
shall each require their employees, agents, affiliates, other licensees,
and others who will have access to the information through NTX and CLIENT
respectively, to first enter appropriate non-disclosure Agreements
requiring the confidentiality contemplated by this Agreement in perpetuity.
5.2 NTX 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
NTX 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 NTX or its representatives.
6. MISCELLANEOUS PROVISIONS.
-------------------------
6.1 AMENDMENT AND MODIFICATION. This Agreement may be amended,
----------------------------
modified and supplemented only by written agreement of NTX 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 NTX agree that if any action is instituted to enforce
or interpret any provision of this Agreement, the jurisdiction and venue
shall be Orange County, 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.
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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,
-----------
NTX OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
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:
B. 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 MATTER 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;
L. 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
----------------
approximately six (6) months ending April 10, 2002.
9. NON CIRCUMVENTION. In and for valuable consideration, CLIENT hereby
------------------
agrees that NTX 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"").
35
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 NTX, 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 NTX in which NTX is directly and actively involved, and
never without NTX'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 NTX, without the prior written approval of NTX. NTX 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, NTX 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 24 months
following the initiation of this agreement.
(SIGNATURE PAGE FOLLOWS)
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, INC. ( ITEC )
Print Name: Xxxxx Xxxxx
Sign Name: /s/ Xxxxx xxxxx
-------------------------------
Title: Chairman & CEO
Date:
-------------------------------
Address: 00000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
36
NEOTACTIX, INC. ( NTX)
Print Name: Xxxxxx X. Xxxxxxx
Sign Name: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: Partner
Date:
-------------------------------
Address: 00000 Xxxxx Xxxx Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
37
