EXHIBIT 4.4
THIS DOCUMENT WHEN SIGNED CONSTITUTES A LEGALLY BINDING CONTRACT
WHICH REQUIRES ARBITRATION TO RESOLVE ANY DISPUTES BETWEEN THE PARTIES.
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into
effective as of May 21, 2002 by and between the following parties:
(i) Imaging Technologies corporation, a Business Corporation
incorporated under the laws of the State of Delaware, having its principal
executive offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter
referred to as the "Client" and,
(ii.) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of NC Capital Markets, Inc., a wholly-owned subsidiary
of The National Capital Companies, Inc. Florida Corporation, whose principal
place of business is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
hereinafter referred to as the "Consultant";
WHEREAS, Client, Imaging Technologies Corp, is a corporation organized under the
laws of the State of Delaware, which is engaged in marketing of Imaging products
and PEO Employment and is seeking advice and counsel related to corporate
finance and mergers and acquisition matters; and,
WHEREAS, Consultant, and its affiliates, are in the business of providing
services for management consulting, financial advisory, and introductions to
other public companies and private companies.
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to the Client as hereinafter described on the terms and
conditions more fully set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows.
1. CONSULTING SERVICES. The Client hereby retains the Consultant as an
independent business consultant to the Client and the Consultant hereby accepts
and agrees to such retention. The Consultant shall render to the Client such
services as set forth on Exhibit "A", attached hereto and by reference
incorporated herein.
2. INDEPENDENT CONTRACTOR. Consultant agrees to perform its consulting duties
hereto as an independent contractor. Nothing contained herein shall be
considered as creating an employer-employee relationship between the parties to
this Agreement. The Client shall not make social security, workers' compensation
or unemployment insurance payments on behalf of Consultant. The parties hereto
acknowledge and agree that Consultant cannot guarantee the results or
effectiveness of any of the services rendered or to be rendered by Consultant
hereunder. Rather, Consultant shall conduct its operations and provide its
services in a professional manner and in accordance with good industry practice.
Consultant will use its best efforts and does not promise results.
3. TIME, PLACE AND MANNER OF PERFORMANCE. The Consultant shall be available for
advice and counsel to the officers and directors of the Client at such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the services
hereunder, including the amount of time to be allocated by the Consultant to any
specific service, shall be determined at the sole discretion of the Consultant.
4. TERM OF AGREEMENT. The term of this Agreement shall be One (1) year
commencing on the date of this Agreement, both subject to prior termination as
hereinafter provided.
5. COMPENSATION AND EXPENSES. In full consideration of the services to be
provided for the Client by the Consultant, the Client agrees to compensate
Consultant with four million (4,000,000) shares of ITEC common stock (to be
adjusted for any splits, reverse splits, stock consolidations, or similar events
occurring between the date of this Agreement and the date that the shares are
issued) to be issued pursuant to instructions to be provided by Consultant's.
In addition, the Client shall reimburse the Consultant for all pre-approved
expenses and disbursements incurred by the Consultant on behalf of the Client in
connection with the performance of consulting services pursuant to this
Agreement. Consultant shall be solely responsible for all expenses and
disbursements anticipated to be made in connection with its performance under
this Agreement.
6. DUTIES AND OBLIGATIONS OF CLIENT.
(a) Client shall furnish to Consultant such current information and data as
necessary for Consultant to understand and base its advice to the Client, and
shall provide such current information on a regular basis, including at a
minimum
(b) Client shall be responsible for advising Consultant of any information
or facts which would affect the accuracy of any prior data and information to
Consultant so that Consultant.
7. TERMINATION
(a) Without cause, Consultant's relationship with the Client hereunder may
be terminated at any time by mutual written agreement of the parties hereto.
(b) Without cause, this Agreement shall terminate upon the dissolution,
bankruptcy or insolvency of the Client.
(c) Without cause, and without excusing the Client's obligations under
Section 5 herein above. Consultant shall have the right and discretion to
terminate this Agreement should the Client violate any law, ordinance, permit or
regulation of any governmental entity, except for violations which either
singularly or in the aggregate do not have or will not have a material adverse
effect on the operations of the Client.
(d) For cause, this Agreement may be terminated by either party upon giving
written notice to the other party if the other party is in default hereunder and
such default is not reasonably cured within fifteen (15) days after written
notice of such default.
(e) For cause(s) as set forth below, this Agreement may be terminated by
Client after giving written notice specifically detailing all and any event(s)
of default to Consultant, if such specified event(s) of default is not
reasonably cured within fifteen (15) days after receipt of written notice of
such events of default(s):
(i) Any willful breach of duty by Consultant;
(ii) Any material breach by Consultant of the obligations in Section 9;
(iii) Any material act or event that would inhibit Consultant from fully
performing its responsibilities under this Agreement in good faith.
8. WORK PRODUCT. It is agreed that all information and materials produced for
the Client shall be the property of the Consultant, free and clear of all claims
thereto by the Client, and the Client shall retain no claim of authorship
therein.
9. CONFIDENTIALITY. The Consultant recognizes and acknowledges that it has and
will have access to certain confidential information of the Client and its
affiliates that are valuable, special and unique assets and property of the
Client and such affiliates. The Consultant will not, during the term of this
Agreement, or any time thereafter, disclose, without the prior written consent
or authorization of the Client, any of such information to any person, for any
reason or purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of the
information is maintained in the hands of the person to whom the information is
to be disclosed or in compliance with the terms of a judicial order or
administrative process.
10. CONFLICT OF INTEREST. The Consultant shall be free to perform services for
other persons. The Consultant will notify the Client of its performance of
consultant services for any other person, which could conflict with its
obligations under the Agreement. Upon receiving such notice, the Client may
terminate this Agreement or consent to the Consultant's outside consulting
activities; failure to terminate this Agreement, within seven (7) days of
receipt of written notice of conflict, shall constitute the Client's ongoing
consent to the Consultant's outside consulting services. Termination of
agreement pursuant to this section should be deemed termination for cause.
11. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF THE CLIENT. The obligations of
Consultant described in this Agreement consist solely of the furnishing of
information and advice to the Client in the form of services. In no event shall
Consultant be required by this Agreement to represent or make management
decisions for the Client. All final decisions with respect to acts and omissions
of the Client or any affiliates and subsidiaries, shall be those of the Client
or such affiliates and subsidiaries, and Consultant shall under no circumstances
be liable for any expense incurred or loss suffered by the Client as a
consequence of such acts or omissions.
12. INDEMNIFICATION. The Client shall protect, defend, indemnify and hold
Consultant and its assigns and attorneys, accountants, employees, officers and
directors harmless from and against all losses, liabilities, damages, judgments,
claims, counterclaims, demands, actions, proceedings, costs and expenses
(including reasonable attorneys' fees) of every kind and character resulting
from, relating to or arising out of (a) the inaccuracy, non-fulfillment or
breach of any representation, warranty, covenant or agreement made by the
Client; or (b) any legal action, including any counterclaim, based on any
representation, warranty, covenant or agreement made by the Client herein; or
(c) negligence or willful misconduct by the Client.
The Consultant shall protect, defend, indemnify and hold harmless the Client and
its assigns and attorneys, accountants, employees, officers and directors
harmless from and against all losses, liabilities, damages, judgments, claims,
counterclaims, demands, actions, proceedings, costs and expenses (including
reasonable attorneys' fees) of every kind and character resulting from, relating
to or arising out of (a) the inaccuracy, non-fulfillment or breach of any
representation, warranty, covenant or agreement made by the Consultant herein
except those based on information furnished by the Client or its
representatives; or (b) any legal action, including any counterclaim, based on
any representation, warranty, covenant or agreement made by the Consultant
herein which was not based on information furnished by the Client; or (c)
negligence or willful misconduct by the Consultant.
13. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by:
(a) Registered or Certified Mail to the principal office of the other party,
postage prepaid with return receipt requested deposited in a proper receptacle
of the United States Postal Service or its successors. Said notice shall be
addressed to the intended recipient. A written notice sent in conformity with
this provision shall be deemed delivered as of the date shown "delivered" on the
return receipt; or,
(b) Transmitted by Prepaid Telegram or by Telephone Facsimile Transmission if
the addressee or its fax machine confirmation acknowledges receipt. Notice so
transmitted by telegram or facsimile transmission shall be effective only if
receipt of transmission is acknowledged by an appropriate machine or written
confirmation, and such notice shall be deemed effective on the next business day
after transmission; or,
(c) Notice given in any other manner shall be effective only if proven to have
been received by the addressee.
For purposes of notice, the address of each party shall be the address set forth
above; Provided, however, that each party shall have the right to change his
respective address for notices hereunder to another location(s) within the
continental United States by giving 30 days' written notice to the other party
in the manner set forth hereinabove.
14. WAIVER OF BREACH. Any waiver by either party of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any subsequent breach by any party.
15. APPLICABLE LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder be construed in accordance with and under and pursuant to the laws of
the State of Florida and that in any action, special proceeding or other
proceeding that may be brought arising out of, in connection with or by reason
of this Agreement, the laws of the State of Florida shall be applicable and
shall govern to the exclusion of the law of any other forum, without regard to
the jurisdiction on which any action or special proceeding may be instituted.
16. SEVERABILITY. All agreements and covenants contained herein are sever able,
and in the event any of them shall be held to be invalid by any competent court,
the Agreement shall be interpreted as if such invalid agreements or covenants
were not contained herein.
17. ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces all prior
understanding, agreements and negotiations between the parties.
18. WAIVERS AND MODIFICATION. Any waiver, alteration, or modification of any of
the provisions of this Agreement shall be valid only if made in writing and
signed by the parties hereto. Each party hereto, may waive any of its rights
hereunder without affecting a waiver with respect to any subsequent occurrences
or transactions hereof.
19. COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement, effective as of the date set forth above.
CLIENT: CONSULTANT:
IMAGING TECHNOLOGIES CORP NC CAPITAL
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇