EXHIBIT 10.56
iCapital Finance, Inc.
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Ph.: (000) 000-0000 Fax: (000) 000-0000
FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the "Agreement") is entered
this 19th day of September, 2002 by and between iCapital Finance, Inc.
("Consultant"), a California corporation, and Xxxxx X. Xxxxxx (an "Individual
and Client") to provide services for Imaging Diagnostic Systems, Inc. (OTC BB:
IMDS) a Florida corporation, with reference to the following:
Preliminary Statement
A. The Client desires to be assured of the association and services of
the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate
long range strategic planning, and to advise the Client in business
and/or financial matters and is therefore willing to engage the
Consultant upon the terms and conditions set forth herein.
B. Consultant desires to be assured, and Client desires to assure
Consultant, that, if Consultant associates with Client and allocates
its resources necessary to provide Client the aforementioned services,
that Consultant will be paid the consideration described herein and
said consideration will be nonrefundable, regardless of the
circumstances, and therefore Consultant agrees to be engaged and
retained by the Client on the terms and conditions set forth herein.
C. The Consultant agrees to be engaged and retained by the Individual for
services to be provided to Client and upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing preliminary statement,
and of the mutual promises hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Engagement. Individual hereby engages Consultant on a non-exclusive
basis, and Consultant hereby accepts the engagement to become a financial
consultant to the Client and to render such advice, consultation, information,
and services to the Directors and/or Officers of the Client regarding general
financial and business matters including, but not limited to:
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a. Corporate planning, strategy and negotiations with potential strategic
business partners and/or other general consulting needs as expressed
by Client;
b. Business development and business advertising;
c. Due diligence processes, capital structures, capital sources and
financial transactions;
d. Structuring and providing alternative sources for accounts receivable,
purchase order and other asset financing.
e. Banking methods and systems;
f. e-Consulting providing business solutions;
g. Guidance and assistance in available alternatives to maximize
shareholder value;
h. Periodic reporting as to developments concerning the general financial
markets and public securities markets and industry which may be
relevant or of interest or concern to the Client or the Client's
business;
i. Periodic preparation and distribution of research reports and
information to the broker/dealer and investment banking community.
It is expressly understood that Consultant shall have no power to bind
Client to any contract or obligation or to transact any business in Client's
name or on behalf of Client in any manner.
It is expressly understood and agreed by Individual that, in reliance upon
Individual's representations, warranties and covenants contained herein,
immediately upon execution and delivery of this Agreement by Individual,
Consultant is setting aside and allocating for the benefit of Client valuable
resources (including, without limitation, capital and reservation of work
schedules of employees) required to fulfill Consultant's obligations hereunder
and in doing so, Consultant will necessarily forebear from undertaking other
opportunities and commitments (that would result in enrichment to Consultant) in
order to be available to provide Client the services contemplated by this
Agreement.
2. Term. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation, including, without
limitation, the obligation of Client to pay the nonrefundable consideration
described in paragraph 4a. hereof.
3. Due Diligence. The Company and/or Client shall supply and deliver to the
Consultant all information relating to the Client Company's business as may be
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reasonably requested by the Consultant to enable the Consultant to make an
assessment of the Client's company and business prospects and provide the
consulting services described herein.
4. Compensation and Fees. As consideration for Consultant entering into
this Agreement, Individual agrees to pay and deliver to Consultant the following
consideration, which consideration is nonrefundable regardless of the
circumstances:
a. Certificates representing an aggregate of one million (1,000,000)
shares of free trading common stock ("Shares"). Shares are
payable in two payments: The first payment of five hundred
thousand (500,000) shares is due on the date hereof, and the
second payment of five hundred thousand (500,000) shares is due
60 days after the date hereof.
The Shares, when issued as directed by Consultant, will be duly
authorized, validly issued and outstanding, fully paid and
non-assessable, and will not be subject to any liens or
encumbrances. Securities shall be issued to Consultant in
accordance with a mutually acceptable plan of issuance as to
relieve securities or Consultant from restrictions upon
transferability of shares in compliance with applicable
registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Individual and Consultant and their advisors, Individual agrees that, when
received by Consultant, the above-described consideration shall be nonrefundable
regardless of the circumstances, whether foreseen or unforeseen upon execution
and delivery of this Agreement. Individual further acknowledges and agrees that
said consideration is earned by Consultant: (1) upon Individual's execution and
delivery of the Agreement and prior to the provision of any service hereunder;
(2) in part, by reason of Consultant's agreement to make its resources available
to serve Client and as further described in the Preliminary Statement and
elsewhere herein; and (3) regardless of whether Individual seeks to terminate
this Agreement prior to consultant's delivery of any services hereunder. If
Individual takes any action to terminate this Agreement or to recover any
consideration paid or delivered by Individual to Consultant other than by reason
of Consultant's gross negligence or willful misconduct, Consultant shall be
entitled to all available equitable remedies, consequential and incidental
damages and reasonable attorneys' fees and costs incurred as a result thereof,
regardless of whether suit is filed and regardless of whether Individual or
Consultant prevails in any such suit.
5. Representations, Warrants and Covenants. The Individual represents,
warrants and covenants to the Consultant as follows:
a. The Individual has the full authority, right, power and legal
capacity to enter into this Agreement and Client is able to
consummate the transactions which are provided for herein. The
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execution of this Agreement by the Individual and its delivery to
the Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and
authorized by all necessary action by the Client's Board of
Directors and no further authorization shall be necessary on the
part of the Client for the performance and consummation by the
Client of the transactions which are contemplated by this
Agreement.
b. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Client or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Client or cause an acceleration under any arrangement, agreement
or other instrument to which the Client is a party or by which
any of its assets are bound. The Client has performed in all
respects all of its obligations which are, as of the date of this
Agreement, required to be performed by it pursuant to the terms
of any such agreement, contract or commitment.
6. Exclusivity; Performance; Confidentiality. The services of Consultant
hereunder shall not be exclusive, and Consultant and its agents may perform
similar or different services for other persons or entities whether or not they
are competitors of Client. The Consultant agrees that it will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of the Consultant pursuant to the terms of this Agreement.
Consultant shall be required to expend only such time as is necessary to service
Client in a commercially reasonable manner. The Consultant does not guarantee
that its efforts will have any impact upon the Company's business or that there
will be any specific result or improvement from the Consultant's efforts.
Consultant acknowledges and agrees that confidential and valuable information
proprietary to Client and obtained during its engagement by the Individual,
shall not be, directly or indirectly, disclosed without the prior express
written consent of the Client, unless and until such information is otherwise
known to the public generally or is not otherwise secret and confidential.
7. Independent Contractor. In its performance hereunder, Consultant and its
agents shall be an independent contractor. Consultant shall complete the
services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultant and which shall not
be subject to the control or supervision of Individual or Client, except as to
the results of the work. Individual acknowledges that nothing in this Agreement
shall be construed to require Consultant to provide services to Client at any
specific time, or in any specific place or manner. Payments to consultant
hereunder shall not be subject to withholding taxes or other employment taxes as
required with respect to compensation paid to an employee.
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8. Arbitration and Fees. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for attorney's fees in
connection with such arbitration or other proceeding in such amount as may be
determined by the arbitrator or other officer in such proceeding. If collection
is required for any payment not made when due, the creditor shall collect
statutory interest and the cost of collection, including attorney's fees whether
or not court action is required for enforcement. The prevailing party in any
such proceeding shall also be entitled to reasonable attorneys' fees and costs
in connection all appeals of any judgment.
9. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail, (ii) overnight delivery
with confirmation of delivery, or (iii) facsimile transmission with an original
mailed by first class mail, postage prepaid, addressed as follows:
If to the Individual and Client: Xxxxx X. Xxxxxx
c/o 0000 X.X. 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to the Office: Imaging Diagnostic Systems, Inc.
Attention: Xxxxx Xxxxxx
0000 X.X. 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Consultant: iCapital Finance, Inc.
Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
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facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. Additional Provisions. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
and no waiver shall constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all parties. This Agreement constitutes the entire agreement between
the parties and supersedes any prior agreements or negotiations. There are no
third party beneficiaries of this Agreement. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of California,
regardless of laws of conflicts.
11. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Preliminary Statement. The Preliminary Statement is incorporated herein
by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the date first written above.
"Individual and Client"
Xxxxx X. Xxxxxx
Signature: /s/ Xxxxx X. Xxxxxx
Print name: Xxxxx X. Xxxxxx
Print title: Individual
"Consultant"
iCapital Finance, Inc.
Signature: /s/ Xxxxxxx Xxxxxxxxx
Print name: Xxxxxxx Xxxxxxxxx
Print title: Managing Director
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