EXHIBIT 10(f)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 5th day of
November, 1997, and effective as of January 1, 1997 (the "Effective Date"),
between Computerized Thermal Imaging, Inc., a Nevada corporation ("CTI") and
Xxxxxxx Xxxxxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, CTI wishes to obtain the advice, contacts and expert judgement of
the Consultant with respect to the conduct of CTI's business; and
WHEREAS, CTI desires to have the Consultant act as an independent
contractor for the purpose of providing such services to CTI; and
WHEREAS, Consultant is qualified and willing to provide such services
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other consideration,
the sufficiency of which is hereby acknowledged, the parties do hereby covenant
and agree as follows:
1. SCOPE. CTI hereby engages and retains the Consultant as an independent
contractor to provide the services set forth herein. The Consultant hereby
agrees to provide all reasonable and necessary services associated with the
following: (i) the development of a comprehensive business plan; (ii)
future acquisition strategies; (iii) capital development and fund raising;
and (iv) any other ancillary services relating to the aforementioned
(collectively, the "Services").
2. REPRESENTATIONS. Consultant hereby agrees to use its best efforts in
providing the Services and loyally representing the interests of CTI in
accordance with CTI's reasonable requirements and objectives. Consultant
and CTI acknowledge that Consultant is experienced in providing the
Services and will provide such Services with the diligence and care of
others in the industry. Consultant further represents that it has not, and
shall not, enter into any agreement during the term of this Agreement which
might prevent it from performing its obligations hereunder.
3. FEES. In full consideration of the Services provided hereunder and prior
to the Effective Date, CTI hereby grants to Consultant an option to
purchase all or any portion of 275,000 shares of common stock of CTI on the
terms and conditions as set forth in the Consultant Stock Option Agreement,
attached hereto as EXHIBIT "A".
4. EXPENSES. All expenses, including travel and lodging, incurred by the
Consultant in the performance of Services shall be the sole responsibility
of the Consultant, unless otherwise agreed to in writing. During the
continuance of this Agreement, Consultant shall certify as regular and
guarantee Consultant's situation towards all relevant tax authorities,
social administrations and professional organizations, if applicable, as
being in conformity with Consultant's status as an independent contractor.
5. CONFIDENTIAL INFORMATION. During the term of consultation with CTI, the
Consultant hereby acknowledges that it will have access to and become
acquainted with sensitive and confidential information regarding CTI and
its business, including, but not limited to, trade secrets (technical and
non-technical), know-how, marketing plans, pricing data, contracts, client
lists, employee records, patents, applications for patents, and other
proprietary information. Consultant acknowledges that the confidential
information has been developed or acquired by CTI through the expenditure
of substantial time, effort and money and serves to provide CTI with an
advantage over it competitors. Consultant hereby agrees that such
confidential information may not be directly or indirectly disclosed to
third parties except as required to conduct the business of CTI. The
Consultant further agrees not to use any information made available to or
coming into its possession or
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knowledge in a manner that is adverse to the business of CTI. This
provision shall survive the termination of this Agreement.
6. INSURANCE. The parties agree that CTI shall not be required to carry
insurance or in any way insure the activities of the Consultant, his/her
agents, servants or employees, nor shall CTI be liable for any of the acts
or omissions of the Consultant, his/her agents, servants or employees.
Consultant further agrees to indemnify, defend, and hold harmless CTI from
any and all claims, penalties, fines, causes of action, liabilities, or
threats of such actions which arise out of or relate to this Agreement or
the performance of Services. This provision shall survive the termination
of this Agreement.
7. DURATION. This Agreement shall remain in effect for a period of one (1)
year commencing on the Effective Date, but shall automatically renew, if
not terminated as provided for herein, for successive one (1) year periods.
Notwithstanding the foregoing, CTI or the Consultant may terminate this
Agreement at any time upon ten (10) days written notice.
8. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court
for Xxxxxx County, Texas, as well as of the District Courts of the State of
Texas in Xxxxxx County, Texas over any suit, action or proceeding arising
out of or relating to this Agreement. Each party hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of the venue of any such mediation,
arbitration, suit, action or proceeding brought in any such county and any
claim that any such mediation, arbitration, suit, action or proceeding
brought in such county has been brought in an inconvenient forum.
9. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach, termination, or validity thereof, shall be
settled by final and binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA Rules") in
effect as of the effective date of this Agreement. The American Arbitration
Association ("AAA") shall be responsible for (i) appointing a sole
arbitrator, and (ii) administering the case in accordance with the AAA
Rules. The situs of the arbitration shall be Houston, Texas. Upon the
application of either party to this Agreement, and whether or not an
arbitration proceeding has yet been initiated, all courts having
jurisdiction hereby are authorized to: (a) issue and enforce in any lawful
manner, such temporary restraining orders, preliminary injunctions and
other interim measures of relief as may be necessary to prevent harm to a
parties interest or as otherwise may be appropriate pending the conclusion
of arbitration proceedings pursuant to this Agreement; and (b) enter and
enforce in any lawful manner such judgments for permanent equitable relief
as may be necessary to prevent harm to a parties interest or as otherwise
may be appropriate following the issuance of arbitral awards pursuant to
this Agreement. Any order or judgement rendered by the arbitrator may be
entered and enforced by any court having competent jurisdiction.
10. ASSIGNMENT. This Agreement shall inure to the benefit of and be binding
upon the parties, their respective successors and permitted assigns. This
Agreement may not be assigned by any party without the prior written
consent of the other parties.
11. HEADINGS. Headings used in this Agreement are used for convenience only and
do not constitute substantive matters to be considered in construing the
terms of this Agreement.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and
supersedes all documents, verbal consents, or understandings made before
the conclusion of this Agreement. The terms of this Agreement may be
amended or modified only by written agreement signed by all of the parties
hereto. All changes, supplements or amendments to this Agreement will be
valid only when agreed upon by the parties and made in writing.
13. NOTICES. Any notices or consents required or permitted by this Agreement
shall be in writing and shall be deemed to have been sufficiently given if
delivered in person, or if sent by certified mail, return receipt
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requested, or telexed or telefaxed to the party entitled thereto with
confirmation of transmission, addressed as set forth on the signature pages
hereto, unless such address is changed by written notice hereunder. If so
mailed the same shall not be deemed effective until three (3) business days
after posting.
14. WAIVERS. No waiver of any term or condition of this Agreement shall be
valid except by an instrument in writing expressly waiving such term or
condition signed by the waiving party. A waiver by any party of any term
or condition of this Agreement in any one instance shall not be deemed or
construed as a waiver of such term or condition for any similar instance in
the future or of any subsequent breach hereof. All rights, remedies,
undertakings, obligations and agreements contained in this Agreement shall
be cumulative and none of them shall be a limitation of any other remedy,
right undertaking, obligation or agreement of either party.
15. SEVERABILITY. Should any part or provision of the Agreement be judicially
held to be unenforceable or in conflict with the law of any jurisdiction,
the validity of the remaining parts or provisions shall not be affected by
such holding and shall remain in full force and effect.
16. GENERAL ASSURANCES. The parties agree to execute, acknowledge, and deliver
all such further instruments, and do all such other acts, as may be
necessary or appropriate in order to carry out the intent and purposes of
this Agreement.
17. CONSTRUCTION OF AGREEMENT. The parties hereto acknowledge and agree that
neither this Agreement nor any of the other documents executed in
connection herewith shall be construed more favorably in favor of one than
the other based upon which party drafted the sane, it being acknowledged
that all parties hereto contributed substantially to the negotiation and
preparation of this Agreement and the documents executed in connection
herewith.
18. NO THIRD PARTY BENEFICIARIES. Except as otherwise expressly forth in this
Agreement, no person or entity not a party to this Agreement shall have
rights under this Agreement as a third party beneficiary or otherwise.
19. RELATIONSHIP OF PARTIES. Consultant is providing services on an
independent contractor basis. Notwithstanding anything to the contrary
herein, this agreement shall not in any manner be construed to create a
joint venture, partnership, agency or other similar form of relationship,
and neither party shall have the right or authority to: (i) commit the
other party to any obligation or transaction not expressly authorized by
such other party, or (ii) act or purport to act as agent or representative
of the other, except as expressly authorized in writing by such other
party.
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IN WITNESS WHEREOF, the undersigned have executed this Consent in multiple
counterparts, to be effective as of the date and time first mentioned above,
each of which together shall be considered one original, and whether by original
or facsimile signature shall be effective in all respects as though an original.
CTI:
COMPUTERIZED THERMAL IMAGING, INC.
ADDRESS:
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxxxxx 00000 By: /s/ Xxxxx X. Xxxxxxxx
(000) 000-0000 -------------------------------------------
Xxxxx X. Xxxxxxxx, Chief Executive Officer
CONSULTANT:
ADDRESS:
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(___)___-____Telecopier By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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