IMAGING TECHNOLOGIES CORPORATION AND SUBSIDIARIES
EXHIBIT 10(A)
AGREEMENT TO ACQUIRE SHARES
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THIS AGREEMENT TO ACQUIRE SHARES (hereafter referred to as the
"Agreement") is made and entered into on December 11, 2000, by and between
Imaging Technologies Corporation (hereafter referred to as "ITEC"), a Delaware
company, with principle executive offices located at 00000 Xxxxxxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000, and Quik Pix Inc., (hereafter referred to as "QPI.") a
Nevada company, with principal offices located at 0000 Xxxxxxx Xxxxx, Xxxxx X,
Xxxxxxxxxx 00000 and concerns ITEC assuming QPI's current liabilities in
exchange for a certain number of QPI's common stock.
RECITALS
WHEREAS, QPI is engaged in the business of offering services which
allow a client to produce color visuals (digital and photographic), including
using a full range of its patented photomotion (tm) technology and its
commercial applications; and
WHEREAS, QPI is seeking additional channels to get its service in front
of potential clients; and
WHEREAS, ITEC is in the business of ITEC developing, manufacturing, and
distributing high-quality digital imaging solutions; and
WHEREAS, ITEC desire to expand its product line; and
WHEREAS, ITEC and QPI feel that forming a business relationship would
be beneficial to both parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
CONSIDERATION
1.1 ITEC, directly or through one of its subsidiaries, affiliates,
assignees or successors, will assume the current liabilities of QPI as of
December 1, 2000. These liabilities are estimated to be approximately
$1,300,000, exclusive of the convertible debentures referred to in Paragraph
1.3, below.
1.2 QPI will issue to ITEC, 37,500,000 shares of restricted QPI common
stock., which ITEC agrees not to further transfer or convey until the
requirements of Paragraphs 1.1 and 1.3, herein, have been met or waived in
writing.
1.3 In a separate transaction, the convertible debenture holders of QPI
will cancel such debentures and all related accrued interest in exchange for an
aggregate total of 500,000 shares of restricted common stock of ITEC.
1.4 ITEC and QPI mutually agree to enter into this strategic business
relationship based on the structure described in this Agreement.
CLOSING
2.1 The Closing of the transaction contemplated herein (the "Closing")
will occur on the later of (i) December 8, 2000 or (ii) such other date as the
parties may agree (the "Closing Date"). The Closing shall be effective as of
December 1, 2000 (the "Effective Date"). For accounting purposes, the Closing
shall be deemed consummated as of 12:01 a.m. on the Effective Date. The Closing
may be consummated by exchange of signature pages by facsimile transmission,
with the originals thereof to be delivered by mail to each respective party as
soon thereafter as practicable.
2.2 ITEC shall deliver the following at the Closing:
(a) an Officer's Certificate as to (i) the accuracy at Closing of
all of ITEC's representations and warranties as if made at and
as of the Closing Date, (ii) the fulfillment of all of ITEC's
agreements and covenants to be performed at or before the
Closing Date, and (iii) the satisfaction of all Closing
conditions to be satisfied by ITEC;
(b) certified copies of resolutions adopted by ITEC's Board of
Directors approving the execution, delivery and performance of
this Agreement and approving all of the transactions
contemplated by this Agreement; and
(c) such other instruments or documents as may be necessary or
appropriate to carry out
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the transactions contemplated hereby.
2.3 At the Closing, QPI shall deliver the following:
(a) an Officer's Certificate as to (i) the accuracy at Closing of
all of QPI's representations and warranties as if made at and
as of the Closing Date, ( ii) the fulfillment of all of QPI's
agreements and covenants to be performed at or before the
Closing Date, and (iii) the satisfaction of all Closing
conditions to be satisfied by QPI;
(b) certified copies of resolutions adopted by QPI's Board of
Directors approving the execution, delivery and performance of
this Agreement and approving all of the transactions
contemplated by this Agreement;
(c) an assignment, in a form acceptable to ITEC, from Xxxx Xxxxx
to QPI of United States Patent Number 5,782,026; and
(d) such other endorsements, instruments or documents as may be
necessary or appropriate to carry out the transactions
contemplated hereby.
REPRESENTATIONS AND WARRANTIES REGARDING QPI
QPI represents and warrants to ITEC as of the Closing Date (unless
otherwise provided) as follows:
3.1 QPI has all of the requisite right, power and authority, without
the consent of any other person or entity, to execute and deliver this Agreement
and the agreements to be executed and delivered hereby and to carry out the
transactions contemplated hereby and thereby. All actions required to be taken
by QPI to authorize the execution, delivery and performance of this Agreement
and all agreements and transactions contemplated hereby have been duly and
properly taken.
3.2 This Agreement and the other agreements and other documents to be
delivered at the Closing by QPI have been duly executed and delivered by QPI and
constitute valid and binding obligations of QPI enforceable in accordance with
their respective terms. The execution and delivery of this Agreement and the
other agreements contemplated hereby and the consummation of the transactions
contemplated hereby and thereby will not (immediately, or upon notice, with the
passage of time, or both) result in the creation of any lien, charge or
encumbrance of any kind or the termination or acceleration of any indebtedness
or other obligation of QPI, and are not prohibited by, do not and will not
violate or conflict with any provision of, and do not and will not constitute a
default under or a breach of (i) the articles of incorporation or bylaws of QPI,
(ii) any contract, agreement or other instrument to which QPI is a party or by
which QPI is bound, (iii) any order, decree or judgment of any court or
governmental agency binding upon QPI, or (iv) any law, rule or regulation
applicable to QPI.
3.3 (a) QPI is a corporation duly organized, validly existing and in
good standing under the laws of Nevada, and has full power and authority and all
requisite rights, licenses and permits to carry on its business as it is
presently conducted by QPI. QPI maintains its primary office in the State of
California.
(b) No more than 10,300,000 shares of common stock of QPI, other
than the 37,500,000 QPI Shares to be issued hereunder, are currently issued and
outstanding or have been granted or sold by QPI. Except as set forth on Schedule
3.3(b) all of the QPI shares have been duly and validly authorized and granted
or sold and there are no contributions, capital calls or other amounts
outstanding with respect to any QPI shares. The QPI shares were not issued in
violation of any preemptive or other right of any person. There are no
outstanding options, rights, warrants, conversion rights or other agreements or
commitments to which QPI is a party or binding upon QPI for the sale or transfer
by QPI of any interest in QPI.
3.4 Other than approval by a majority of the holders of the common
shares of QPI, no approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other governmental authority, is required for (i) the execution and delivery
of this Agreement or the agreements contemplated hereby, or (ii) the
consummation of the transactions contemplated hereby and thereby.
3.5 (a) The unaudited financial statements for QPI at and as of
September 31, 2000 (i) are attached hereto as Schedule 3.5(a); and (ii) are
accurate and complete.
(b) QPI is not subject to any liability or obligation (whether
absolute, accrued, contingent or otherwise and whether matured or unmatured)
other than liabilities and obligations described on Schedule 3.5(a).
3.6 The books of account and other records (financial and otherwise) of
QPI are complete and correct and are maintained in accordance with good business
practices.
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3.7 Since October 1, 2000, QPI has operated its business only in the
ordinary course, consistent with past practices, and there has not been any of
the following in connection with QPI:
(a) any material adverse change in the financial condition,
assets, liabilities, personnel, prospects or business affairs
of QPI in its relationships with suppliers, vendors,
customers, representatives, employees or others, nor has there
been the occurrence of any event or condition which could
reasonably be expected to have such an effect;
(b) any declaration or payment of any dividend or other
distribution;
(c) any forgiveness, cancellation, write-off or write-down of
debts or claims, or waiver of any rights related to QPI other
than in the ordinary course of business;
(d) any increase or decrease in the compensation, benefits or
method or rate of reimbursement paid, payable or to become
payable by QPI to any employee, independent contractor or
other person who renders services in connection with QPI or
its business, or any payments of compensation other than
salary to any of such employees;
(e) any incurrence of debt other than trade payables or short-term
loans from ITEC incurred in the ordinary course of business;
(f) any entry into any material agreement, commitment or
transaction in excess of ten thousand dollars ($10,000) or any
capital expenditure in excess of five thousand dollars
($5,000);
(g) any incurrence of any security interest, lien, charge,
encumbrance or claim on, or any damage or loss to, any of the
assets of QPI;
(h) any change in the method of operation or practices of QPI,
including any change in the accounting, billing or invoicing
procedures of QPI;
(i) any sale, transfer or disposal by or for QPI or purchase by or
for QPI of any properties or assets, except in the ordinary
course consistent with past practices; or
(j) any agreement, commitment or understanding by QPI to do any of
the foregoing.
3.8 Except as described on Schedule 3.11, QPI owns or otherwise
controls the contracts, assets, leases, accounts receivable, trademarks, patents
and other intellectual property, all client lists, records and marketing
materials, including copyrights related thereto, the equipment used in the
conduct of its business. Except as described on Schedule 3.11, QPI has good and
marketable title to such assets, and such assets are not and will not be subject
to any pledge, option, escrow, hypothecation, lien, security interest, financing
statement, lease, license, easement, right of way, encumbrance or other
restriction of any kind.
3.9 QPI does not own any real property.
3.10 Except as described on Schedule 3.10, QPI does not lease any of
the personal property that is used in the Business. Schedule 3.10 sets forth an
accurate, correct and complete list of all office furnishings and other personal
property leased by QPI.
3.11 Schedule 3.11 contains a list of all information in the nature of
trade secrets, know-how or proprietary information, including but not limited
to, software, copyrighted and copyrightable material, electronic data processing
systems, program specifications and technical information relating to or used by
QPI (the "Proprietary Information"). The Proprietary Information does not
violate or infringe upon any trade secret rights, patents, trademarks or
copyrights of any other person. Except as set forth on Schedule 3.11, the
Proprietary Information is owned exclusively by QPI and no other person or
entity has any claim thereto or rights therein.
3.12 Except as set forth in Schedule 3.12, QPI has paid all taxes
required to be paid and has filed all returns, declarations and reports or
information returns and statements required to be filed.
3.13 QPI is not engaged in, or a party to, or to the best of QPI's
knowledge, threatened with, any suit, action, proceeding, or investigation or
legal, administrative, arbitration or other method of settling disputes, and no
officer of QPIB knows, anticipates or has notice of any basis for any such
action. QPI has not received notice of any investigation, suit or proceeding
threatened or contemplated by any foreign, federal, state or local government or
regulatory authority including, without limitation, those involving QPI's
employment notices or policies or compliance with environmental regulations.
3.14 QPI has not retained any broker or finder or incurred any
liability or obligation for any brokerage fees, commissions or finder's fees
with respect to this Agreement or the transactions contemplated hereby.
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3.15 Within two (2) days following Closing, QPI shall have delivered an
accounts receivable aging schedule, which shall be attached hereto as Schedule
3.15. Except as set forth on Schedule 3.15, no accounts or notes receivable from
any entity are in excess of ninety (90) days outstanding.
3.16 Neither this Agreement nor any attachment, schedule, certificate
or other statement delivered pursuant to this Agreement in or in connection with
the transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements and information contained herein or
therein, in light of the circumstances in which they were made, not misleading.
Each schedule delivered pursuant to this Agreement is accurate and complete. To
QPI's knowledge, there is no information necessary to enable a prospective
purchaser of QPI or its common stock to make an informed decision with respect
to the purchase of QPI or its common stock which has not been expressly
disclosed to ITEC in this Agreement or in writing in connection with ITEC's due
diligence process.
REPRESENTATIONS AND WARRANTIES OF ITEC
ITEC hereby represents and warrants to QPI as of the date hereof as
follows:
4.1 ITEC has all requisite right, power and authority, without the
consent of any other person or entity, to execute and deliver this Agreement and
the agreements to be executed and delivered at Closing and to carry out the
transactions contemplate hereby and thereby. All actions required to be taken by
ITEC to authorize the execution, delivery and performance of this Agreement and
all agreements and transactions contemplated hereby have been duly and properly
taken.
4.2 This Agreement has been, and the agreements and other documents to
be delivered at Closing by ITEC and will be, duly executed and delivered by ITEC
and constitute valid and binding obligations of ITEC, enforceable in accordance
with their respective terms. The execution and delivery of this Agreement and
the other agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby do not and will not violate or
conflict with any provision of, and do not and will not constitute a default
under or a breach of (i) the Certificate of Incorporation or Bylaws of ITEC,
(ii) any contract, agreement or other instrument to which ITEC is a party, (iii)
any order or judgment of any court or governmental agency or (iv) any law, rule
or regulation applicable to ITEC.
4.3 No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other governmental authority is required for the execution and delivery by
ITEC of this Agreement or the agreements contemplated hereby or the consummation
of the transactions contemplated hereby and thereby.
4.4 ITEC is a corporation duly organized and validly existing under the
laws of the State of Delaware, and has full corporate power and authority to
carry on the business in which it is engaged.
4.5 The ITEC Shares to be issued pursuant to this Agreement have been
duly authorized by all necessary corporate action of ITEC and when delivered
hereunder will be validly issued, fully paid and nonassessable. The ITEC Shares
will be issued pursuant to exemptions under the applicable federal and state
securities laws.
4.6 Except as set forth in Schedule 4.6, ITEC is not engaged in, or a
party to, or to the best of its knowledge, threatened with, any suit, action,
proceeding, or investigation or legal, administrative, arbitration or other
method of settling disputes, which (if determined adversely to ITEC) would
materially and adversely affect (i) the ability of ITEC to perform hereunder or
under any other agreement, document or instrument required to be executed and
delivered by ITEC in connection with the consummation of the transactions
contemplated hereby or (ii) the ITEC Shares to be delivered pursuant to this
Agreement, and ITEC neither knows, anticipates or has notice of any basis for
any such action. Except as set forth in Schedule 4.6, ITEC has not received
notice of any investigation, suit or proceeding threatened or contemplated by
any foreign, federal, state or local government or regulatory authority
including, without limitation, those involving their respective employment
notices or policies or compliance with environmental regulations, which would
have a material adverse effect on ITEC. Except as set forth in Schedule 4.6,
ITEC is not subject to any order, decree or judgment of any court or
governmental agency or instrumentality, which would have a material adverse
effect on ITEC. Except as set forth in Schedule 4.6, ITEC has not received
notice of any adverse finding or determination in connection with any review
conducted by any entity, commission, board or agency which would have a material
adverse effect on ITEC.
4.7 ITEC has not retained any broker or finder or incurred any
liability or obligation for any brokerage fees, commissions or finder's fees
with respect to this Agreement or the transactions contemplated hereby.
4.8 The unaudited financial statements for ITEC as of September 30,
2000: (i) are attached hereto as
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Schedule 4.8 (the "ITEC Financial Statements"); (ii) are accurate, correct and
complete; (iii) fairly present the financial condition and results of operations
of ITEC as of the dates and for the periods indicated; and (iv) are prepared in
accordance with GAAP except for (A) the fact that interim financial statements
are subject to year-end adjustments and (B) any exceptions that may be indicated
in the notes to such ITEC Financial Statements.
COVENANTS
QPI and ITEC hereby agree to keep, perform and fully discharge the
following covenants and agreements.
5.1 QPI and ITEC agree to use their commercially reasonable efforts to
satisfy the Closing conditions set forth herein by December 8, 2000, or earlier
if possible.
5.2 From the date of this Agreement until Closing Date, QPI shall:
(a) use commercial best efforts to preserve intact its business
organization, licenses, permits, government programs, private
programs and customers;
(b) maintain all business development efforts, including without
limitation, diligently pursuing business opportunities of its
business and preserving relationships with prospects of QPI;
and
(c) perform in all material respects all obligations under
agreements.
5.3 From the date of this Agreement until the Closing Date, QPI will
not, without the prior written consent of ITEC, do any of the following:
(a) take any action which would (i) adversely affect the ability of any
party hereto to obtain any consents required for the transactions contemplated
thereby, or (ii) adversely affect the ability of any party hereto to perform its
covenants and agreements;
(b) make any distribution related to earnings any payment of cash to
any shareholder of QPI other than normal payments made in the ordinary course of
business consistent with past practices;
(c) impose on any material asset, or suffer the imposition on any
material asset of, any lien or permit any such lien to exist;
(d) sell, pledge or encumber, or enter into any contract to sell,
pledge or encumber, any interest in the Assets;
(e) purchase, lease or otherwise acquire any assets or properties,
whether real or personal, tangible or intangible, or sell, lease or otherwise
dispose of any assets or properties, whether real or personal, tangible or
intangible, except in the ordinary course of business and consistent with past
practices;
(f) grant any increase in compensation or benefits to the employees or
officers; pay any severance or termination pay or any bonus other than pursuant
to written policies or written contracts in effect as of the date hereof and
disclosed on the schedules hereto, unless such action is first approved in
writing by ITEC's Chief Executive Officer;
(g) enter into or amend any employment contract (unless such amendment
is required by law) that QPI does not have the unconditional right to terminate
without liability (other than liability for services already rendered), at any
time on or after the Closing;
(h) make any significant change in any tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to conform
to changes in tax laws or regulatory accounting requirements or GAAP;
(i) commence any litigation other than in accordance with past
practice, settle any litigation involving any liability for material money
damages or restrictions upon the Business;
(j) except in the ordinary course of business and which is not
material, modify, amend or terminate any material contract or waive, release,
compromise or assign any material rights or claims;
(k) make or commit to make any capital expenditure, or enter into any
lease of capital equipment as lessee or lessor;
(l) take any action, or omit to take any action, which would cause any
of the representations and warranties contained herein to be or become untrue or
incorrect; or
(m) make any loan to any person or increase the aggregate amount of any
loan currently outstanding to any person that would be payable following the
Closing.
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5.4 From the date of this Agreement until Closing Date, ITEC shall:
(a) use commercial best efforts to preserve intact its business
organization, licenses, permits, government programs, private programs and
customers;
(b) maintain all business development efforts, including without
limitation, diligently pursuing business opportunities of its business and
preserving relationships with prospects of ITEC; and
(c) perform in all material respects all obligations under agreements.
5.5 From the date of this Agreement until the Closing Date, ITEC will
not, without the prior written consent of QPI, do any of the following:
(a) take any action which would (i) adversely affect the ability of any
party hereto to obtain any consents required for the transactions contemplated
thereby, or (ii) adversely affect the ability of any party hereto to perform its
covenants and agreements;
(b) impose, or suffer the imposition, on any material asset of any lien
or permit any such lien to exist, in either case which would have a material
adverse impact on ITEC; or
(c) enter into any agreement or commitment to do any of the foregoing.
CONDITIONS PRECEDENT TO OBLIGATIONS OF ITEC
Each and all of the obligations of ITEC to consummate the transactions
contemplated by this Agreement are subject to fulfillment prior to or at the
Closing of the following conditions:
6.1 The representations and warranties of QPI contained herein shall be
accurate in all respects as if made on and as of the Closing Date. QPI shall
have performed all of the obligations and complied with each and all of the
covenants, agreements and conditions required to be performed or complied with
by it on or prior to the Closing Date
6.2 No action, suit, proceeding or investigation before any court,
administrative agency or other governmental authority shall be pending or
threatened wherein an unfavorable judgment, decree or order would prevent the
carrying out of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated hereby, cause such transactions
to be rescinded, or which might affect the right of ITEC or its affiliates to
own, operate or control QPI.
6.3 QPI shall not have been adversely affected in any way by any act of
God, fire, flood, accident, war, labor disturbance, legislation, or other event
or occurrence, whether or not covered by insurance, and there shall have been no
change in the assets or the business of QPI or QPI's financial condition,
properties or prospects, which would have a material adverse effect thereon.
6.4 All corporate and other actions and proceedings in connection with
the transactions contemplated hereby and all documents incidental thereto, and
all other related legal matters, shall be reasonably satisfactory in form and
substance to counsel for ITEC, and ITEC shall have received all such
resolutions, documents and instruments, or copies thereof, certified if
requested, as its counsel shall have reasonably requested.
6.5 There shall have been no change, circumstance or occurrence that
has had or would have a material adverse effect on the business, operations,
properties, condition (financial or otherwise) or prospects of QPI.
6.6 QPI shall have delivered to ITEC an assignment to QPI from Xxxx
Xxxxx of United States Patent Number 5,782,026.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
Each and all of the obligations of QPI to consummate the transactions
contemplated by this Agreement are subject to fulfillment prior to or at the
Closing of the following conditions:
7.1 The representations and warranties of ITEC contained herein shall
be accurate in all respects as if made on and as of the Closing Date. ITEC shall
have performed all of the obligations and complied with each and all of the
covenants, agreements and conditions required to be performed or complied with
on or prior to Closing Date.
7.2 No action, suit, proceeding or investigation before any court,
administrative agency or other
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governmental authority shall be pending or threatened wherein an unfavorable
judgment, decree or order would prevent the carrying out of this Agreement or
any of the transactions contemplated hereby, declare unlawful the transactions
contemplated hereby or cause such transactions to be rescinded.
7.3 All corporate and other actions and proceedings in connection with
the transactions contemplated hereby and all documents incidental thereto, and
all other related legal matters, shall be reasonably satisfactory in form and
substance to counsel for QPI, and QPI shall have received all such resolutions,
documents and instruments, or copies thereof, certified if requested, as its
counsel shall have reasonably requested.
7.4 A majority of the common stockholders of QPI shall have approved
the transactions contemplated herein.
SURVIVAL AND INDEMNIFICATION
8.1 All representations, warranties, covenants and agreements contained
in this Agreement or in any document delivered pursuant hereto shall be deemed
to be material and to have been relied upon by the parties hereto. All
representations and warranties contained in this Agreement shall survive the
Closing for the applicable statute of limitations period, and all
representations, warranties and covenants to be made or performed after the
Closing shall survive the Closing until made or performed and for the applicable
statute of limitations period after their due date. The indemnity obligations of
each party to this Agreement shall terminate (absent fraud or intentional
misrepresentation) one year from the Closing Date. Any claim for indemnification
that is asserted within one year of the Closing Date shall survive until
resolved or judicially determined. The representations and warranties contained
in this Agreement shall not be affected by any investigation, verification or
examination by any party hereto or by anyone on behalf of any such party.
8.2 (a) QPI shall hold harmless and defend ITEC and its successors and
assigns from and against any and all claims related to, caused by or arising
from (A) any misrepresentation or breach of warranty or failure to fulfill any
covenant or agreement of QPI set forth in this Agreement, or any other
misrepresentation, breach of warranty or failure to fulfill a covenant or
agreement by QPI contained in any agreement or other document delivered pursuant
hereto, or (B) any and all claims of third parties made based upon facts alleged
that, if true, would have constituted such a misrepresentation, breach or
failure.
(b) ITEC shall indemnify, hold harmless and defend QPI and its
representatives, officers, members, managers, directors, affiliates, successors
and assigns, from and against any and all claims related to, caused by or
arising from (i) any misrepresentation, breach of warranty or failure to fulfill
any covenant or agreement of ITEC contained herein or in any agreement or other
document delivered pursuant hereto, or (ii) any and all claims of third parties
made based upon facts alleged that, if true, would constitute such a
misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the
"Indemnified Party") shall give prompt written notice to the indemnifying party
(the "Indemnifying Party") of the facts and circumstances giving rise to any
claim, provided, however, that an Indemnified Party's failure to give such
notice shall not impair or otherwise affect such Indemnified Party's right to
indemnification except to the extent that the Indemnifying Party demonstrates
actual damage caused by such failure. All rights contained in this article are
cumulative and are in addition to all other rights and remedies which are
otherwise available, pursuant to the terms of this Agreement or applicable law.
All indemnification rights shall be deemed to apply in favor of the indemnified
party's officers, directors, representatives, subsidiaries, affiliates,
successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a
third party for which the Indemnified Party is entitled to indemnification
hereunder without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld), unless legal action shall have been
instituted against the Indemnified Party and the Indemnifying Party shall not
have taken control of such suit within fifteen (15) days after notification
thereof as provided herein. In connection with any claim giving rise to
indemnification hereunder resulting from or arising out of any claim by a person
other than the Indemnified Party, the Indemnifying Party shall, upon written
notice to the Indemnified Party, assume the defense of any such claim without
prejudice to the right of the Indemnifying Party thereafter to contest its
obligation to indemnify the Indemnified Party in respect to the claims asserted
therein. If the Indemnifying Party assumes the defense of any such claim, the
Indemnifying Party shall select counsel to conduct the defense in such claims
and at its sole cost and expense shall take all steps necessary in the defense
or settlement thereof. The Indemnifying Party shall not consent to a settlement
of, or the entry of any judgment arising from, any claim, without the prior
written consent of the Indemnified Party, unless the Indemnifying Party admits
in writing its liability to hold the Indemnified Party harmless from and against
any losses, damages, expenses and liabilities arising out of such settlement.
The Indemnified Party shall be entitled to participate in the defense of any
such action with its own counsel and at its own expense. If the Indemnifying
Party
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does not assume the defense of any such claim resulting therefrom in accordance
with the terms hereof, the Indemnified Party may defend such claim in such a
manner as it may deem appropriate, including settling such claim after giving
notice of the same to the Indemnifying Party on such terms as the Indemnified
Party may deem appropriate, and in any action by the Indemnified Party seeking
indemnification from the Indemnifying Party in accordance with the provisions of
this article, the Indemnifying Party shall not be entitled to question the
manner in which the Indemnified Party defended such claim or the amount or
nature of any such settlement. In the event of a claim by a third party, the
Indemnified Party shall cooperate with the Indemnifying Party in the defense of
such action (including making a personal contact with the third party if deemed
beneficial) and the relevant records of party shall be made available on a
timely basis.
MISCELLANEOUS
9.1. Payment of Fees and Expenses. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
9.2. Entire Agreement. This Agreement, including the documents and
writings referred to herein or delivered pursuant hereto, which form a part
hereof, contains the entire understanding of the parties with respect to its
subject matter. This Agreement supercedes all prior agreements and
understandings between the parties with respect to its subject matter.
9.3. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
9.4. Notices. Any and all notices, demands or other communications
required or desired to be given by any party shall be in writing and shall be
validly given or made to another party if given by personal delivery, telex,
facsimile, telegram or if deposited in the United States mail, certified or
registered, postage prepaid, return requested.
If to ITEC Inc.: Imaging Technologies, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: General Counsel
If to QPI, Inc.: Quik Pix, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxxxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxx
IMAGING TECHNOLOGIES CORPORATION
by: _______________________________
its _______________________________
QUIK PIX, INC.
by: ______________________________
Its: ____________________________________
8
