EXHIBIT 99
PROFESSIONAL CONSULTING AGREEMENT
PROFESSIONAL CONSULTING AGREEMENT
THIS PROFESSIONAL CONSULTING AGREEMENT is made this 8th day of May,
1998, by and between JCG Inc. ("Consultant"), and Imaging Diagnostic Systems,
Inc. ("Client"), a Florida corporation with principal offices located at 0000 XX
00xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, Consultant renders corporate, finance and public relations
services designed to heighten public awareness of the business conducted and
performance results achieved by specified companies, which services consist
primarily of organizing, assembling and presenting information provided to the
Consultant by the company in a format which profiles the company and which is
conducive to dissemination in appropriate information channels and networks, and
disseminating such information; and
WHEREAS, Consultant employs Xxxxxx Xxxxxx and Client wishes to enlist
Xxxxx Xxxxxx, through Consultant, to provide such services, and to distribute
such information and Consultant and Client wish to formalize in a written
agreement the terms and conditions under which consultant will provide such
services to Client;
NOW, THEREFORE, for the mutual promises and other consideration
described herein, the parties hereto agree as follows:
1. Information to be Furnished by Client. Client shall furnish
Consultant with current public information about Client, including any and all
statements and reports filed by Client with the United States Securities and
Exchange Commission, its most recent Annual Report to Shareholders and shall
also provide any other public information reasonable requested by Consultant
("Client Information"). Client shall not provide to Consultant any confidential
or nonpublic information concerning Client, and any and all information
concerning Client provided to Consultant by Client shall be deemed
non-confidential and public.
2. Services to be Provided by Consultant. Consultant shall provide the
following services to Client on an as needed basis:
a. The implementation of short range and long term strategic planning
to fully develop and enhance the Company's image and its assets, resources,
products and services;
b. The implementation of a program to assist the Company in promoting
the image of the Company and its business and services;
c. Assist the Company in the monitoring of services provided by the
Company's advertising firm, public relations firm and other professionals
retained or to be employed by the Company;
d. Advise the Company relative to the continued development of a
stockholder relations program and to stimulate interest in the Company by
institutional investors and other members of the financial community;
e. Advise the Company relative to the recruitment and retention of
consultants and others consistent with the expansion of operations of the
Company;
f. Assist the Company in long-term financial planning, corporate
reorganization and expansion;
g. Perform such other lawful consulting and advisory services relating
to such aspects of the Client, its management, operation and development or
otherwise as the principal executive, financial, sales and/or operating
officer(s) of the Client may reasonably request consistent with the provisions
of this Agreement (hereafter collectively referred to as the "Services").
h. Notwithstanding anything herein to the contrary, Consultant shall
not provide services in connection with the offer or sale of securities or other
capital-raising transactions.
Consultant will provide such assistance on an as-needed basis at the
request of the Company's chief executive officer or other officers. Consultant
will respond to all telephone calls from the aforementioned persons within a
time period of 24 hours from the time the call was placed. In addition,
Consultant will attend board of directors' and committee meetings as a guest and
meet with management from time to time, if requested by the Company to do so.
3. Compensation for Services. In consideration of Consultant's
providing the services described in paragraph 2, Client's Board of Directors
shall authorize the issuance of 200,000 shares of the Company's Common stock to
be registered pursuant to an S-8 Registration Statement.
4. Term and Termination. This Agreement shall become effective as of
the date written above, and shall remain in effect until May 8, 1999
("Expiration Date"). Client and Consultant may mutually agree to extend the
Agreement for an additional period. In the absence of such an agreement, this
Agreement shall automatically terminate upon the Expiration Date.
In addition to any other remedy available at law or in equity, in the event of
any breach of this agreement by Consultant, the number of shares to be retained
by Consultant shall be based upon 200,000 times a fraction whose numerator is
the number of days after the date hereof and whose denominator is 365. All
remaining shares shall be immediately returned to the Company for cancellation;
The parties hereto agree and acknowledge that inducement for Client to enter
into this Agreement is the fact that Xxxxx Xxxxxx will be providing services to
Client on Consultants behalf. If Xxxxx Xxxxxx is unable by reason of death or
disability to perform the Services, it shall be treated as a breach by
Consultant. For the purpose of this agreement, disability shall be defined as
the inability to perform the duties set forth in this agreement because of
physical or mental illness or injury and the inability to perform such duties
for 30 consecutive days.
5. Reimbursement for Expense, Fees. Consultant shall bear all of its
expenses and costs without reimbursement from Client. Consultant shall not
receive any finders' fees, commissions or other remuneration in connection with
any transaction it assists the Company with during the term of this Agreement.
6. Representations and Warranties.
a. Consultant represents and warrants that services to be provided and
materials to be produced or developed by Consultant under this Agreement will be
performed, produced or developed by competent, trained personnel in a
workmanlike manner. Consultant and its personnel shall comply with all
applicable statues, rules and regulations governing all aspects of the services
to be performed under this Agreement; provided that, as described in paragraph 1
of this Agreement, Client shall be fully responsible to assure all Client
Information is accurate and complete. Client understands and acknowledges that
Consultant cannot guarantee that the services provided hereunder will achieve
any particular objective or fulfill any specified goals. Client further
understands and acknowledges that Consultant is not registered or licensed as an
investment advisor, financial planner, or broker/dealer, nor is Consultant
licensed as principal or representative of any of the foregoing and that, by
entering into this Agreement, Consultant is not undertaking to provide, nor will
Consultant provide, any services that require any such registration or
licensing. OTHER THAN THE FOREGOING EXPRESS WARRANTIES, CONSULTANT MAKES NO
WARRANTIES WITH RESPECT TO THE QUALITY OF THE GOODS AND SERVICES TO BE PROVIDED
HEREUNDER OR ANY RESULTS TO BE ACHIEVED, AND HEREBY EXPRESSLY DISCLAIMS THE
EXISTENCE OF ANY SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT
LIMITATION AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CONSULTANT SHALL HAVE NO LIABILITY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CLIENT AS A RESULT OF ANY
FAILURE ON THE PART OF CONSULTANT IN THE PERFORMANCE OF ITS DUTIES HEREUNDER.
b. In order to induce the Company to issue the Shares, recognizing that
the Company will be relying on the information and on the representations set
forth below, you hereby represent, warrant and agree as follows:
(i) I have determined that the purchase of the shares of the
Company (the "Shares") is a suitable investment for me and that I am a
person who is able to bear economic risks including a total loss of an
investment in the Shares.
(ii) I am purchasing the Shares for my own account for
investment, and not with a view to or for sale in connection with the
distribution of the Shares nor with any present intention of selling or
otherwise disposing of all or any part of the Shares. I hereby
acknowledge my understanding that the Shares are not being registered
under the Securities Act of 1933 (the "Act"), or any state securities
laws on the ground that the issuance and sale of the Shares to me is
exempt under the Act and relevant state securities laws as not
involving a public offering. I agree not to sell the Shares unless they
are subsequently registered or an exemption from such registration is
available. I authorize the Company to place a legend denoting the
restrictions on the certificates to be issued.
I further acknowledge my understanding that the Company's reliance on
such exemptions are, in part, based upon the foregoing representations,
warranties, and agreements by me and that the statutory basis for such
exemptions would not be present, if notwithstanding such
representations, warranties and agreements, I was acquiring the Shares
for resale on the occurrence or non-occurrence of some pre-determined
event. In order to induce the Company to issue and sell the Shares to
me, it is agreed that the Company will have no obligation to recognize
the ownership, beneficial or otherwise, of such shares by anyone but
me, except as set forth herein.
(iii) I acknowledge and am aware that, except as set forth
herein, the Investor will not transfer or assign the Option, the
Shares, or any interest therein; the assignment and transferability of
the Option and the Shares will be governed by this Agreement and all
applicable laws.
(iv) I have acknowledge and am aware that except for the three
day rescission rights provided under Florida law (or other rights under
other applicable law), I am is not entitled to cancel, terminate or
revoke this subscription, and any agreements of mine in the connection
herewith shall survive my death or disability.
(v) I have had the opportunity to ask questions of, and
receive answers from management of the Company regarding the terms and
conditions of this Agreement, and the transactions contemplated
thereby, as well as the affairs of the Company and related matters.
I may have access to whatever additional information concerning the
Company, its financial condition, its business, its prospects, its
management, its capitalization, and other similar matters that I or my
purchaser representative, if any, desires, provided that the Company
can acquire such information without unreasonable effort or expense. In
addition, as required by ss.517.061(11)(a)(3), Florida Statutes, and
Rule 3E-500.05(a) thereunder, I and my purchaser representative may
have, at the offices of the Company, at any reasonable hour, after
reasonable prior notice, access to the materials set forth in the Rule
which the Company can obtain without unreasonable effort or expense.
(vi) I have had the opportunity to obtain additional
information necessary to verify the accuracy of the information
referred to in subparagraph (e) hereof.
I hereby agree to indemnify and hold harmless the Company its
respective officers, directors, shareholders, employees, agents and attorneys
against any and all losses, claims, demands, liabilities and expenses (including
reasonable attorney fees, expert witness and accounting fees and other
disbursements and costs or other expenses) incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person) to which any such
indemnified party may become subject under the Act, under any other statute, at
common law or otherwise, insofar as such losses, claims, demands, liabilities
and expenses (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in this Agreement, or (b) arise
out of or are based upon any breach of any representation, warranty or agreement
contained herein.
--------------------------------------------------------------------------------
The representations, warranties and agreements contained herein shall
survive the delivery of, and payment for, the Shares.
FLORIDA LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN
FLORIDA, ANY SALE MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS
AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE
COMPANY, AN AGENT OF THE COMPANY OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER
THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER
OCCURS LATER. PAYMENTS FOR TERMINATED SUBSCRIPTIONS VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT INTEREST.
--------------------------------------------------------------------------------
7. Miscellaneous.
a. This Agreement shall be interpreted and construed in accordance with
the laws of the State of Florida. The parties agree that jurisdiction and venue
of any dispute arising hereunder shall be in Broward County, Florida.
b. Any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, shall be
submitted to one arbitrator and settled by arbitration in Fort Lauderdale
Florida, in accordance with the rules, then obtaining, of the American
Arbitration Association. Any reward made by such arbitrator shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
c. Neither party may assign its rights or duties under this Agreement
without the express prior written consent of the other party, except that
Consultant may assign to any other party, without Client's consent, its right to
receive all or any portions of the fees and expenses due and owing to it.
d. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof. The terms of this Agreement may be altered
only by written agreement between the parties. The failure of either party to
object to or take affirmative action with respect to any conduct of the other
which is in violation of the terms of this Agreement shall not be construed as a
waiver of the violation or breach, or of any future similar violation or breach.
e. In the event of any cause of action, arbitration or litigation
arising hereunder, all costs and reasonable attorney's fees of the prevailing
party, including, without limitation, attorney's fees and costs at all
administrative and appellate levels and in all bankruptcy proceedings, shall be
paid by the non-prevailing party.
f. This Agreement may be executed in any number of counterparts, all of
which shall be deemed to be an original, but all of which shall be deemed to
constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
Imaging Diagnostic Systems, Inc.
By: /s/ Xxxxx X. Xxxxxx, President
---------------------------------
JCG, Inc.
By: /s/ Xxxxxx Xxxxxx, President
---------------------------------
