CONSULTING AGREEMENT
Exhibit
10.80
THIS
CONSULTING AGREEMENT ("Agreement") is effective as of January 1, 2008 (the
"Effective Date"), by and between Imaging Diagnostic Systems,
Inc. (“IDSI”), a Florida corporation having a place of
business at 0000 XX 00xx Xxxxx,
Xxxxxxxxxx,
XX 00000, Fax Number: 000-000-0000, and Xxx Xxxxxx (“XXXXXX”),
having an address of Xxxxx Hill, Ohio.
WITNESSETH:
WHEREAS,
test IDSI manufactures, markets, sells and distributes the
Computed Tomography Laser Mammography (CTLM®) system and related accessories
(collectively, the “Products”);
WHEREAS,
XXXXXX is the Company’s CEO and wishes to retire from that position as
of the Effective Date;
WHEREAS,
following his retirement, XXXXXX desires to provide
consultation and advice to IDSI regarding the medical imaging
business, the management of IDSI resources and the transition to a new CEO;
and
WHEREAS,
IDSI desires to contract with XXXXXX for the
proposed services in accordance with the terms of this Agreement.
NOW
THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the foregoing recitals are
true
and correct and further agree as follows:
1. Services. XXXXXX
shall provide IDSI with such consulting assistance and advice
as IDSI shall reasonably request from time to time on a part-time basis (the
“Services”).
2. Term. This
Agreement shall continue for 9 months beginning on the Effective Date, unless
terminated earlier under Section 3.
3. Termination.
a. Either
party may terminate this Agreement at any time, without cause, effective on
60
days notice to the other party.
b. Termination
of this Agreement for any reason shall immediately terminate
XXXXXX’X obligation to provide Services to IDSI
and terminate IDSI's obligations to compensate
XXXXXX for Services, except as provided in Section
4. All other rights, obligations, warranties and representations
shall survive termination of this Agreement.
4. Remuneration.
a. As
compensation for Services provided under Section 1 of this Agreement,
IDSI shall pay XXXXXX a retainer of $10,000
per month commencing on the Effective Date and the first day of each month
thereafter until the Agreement is terminated.
x. XXXXXX
will receive compensation under his current IDSI
employment agreement, including payment for all unused vacation time, through
December 31, 2007.
c. In
consideration of this Agreement, IDSI agrees to grant to
XXXXXX on the Effective Date the option to purchase
500,000
shares of its common stock which was scheduled to be granted on January 18,
2008, pursuant to Section 3 of his employment agreement.
d. IDSI
agrees to pay for XXXXXX’X reasonable business travel expenses,
health insurance and a $1 million life insurance policy naming Xxxxx Xxxxxx
as
beneficiary during the term of this Agreement.
e. Notwithstanding
the foregoing, IDSI shall reimburse XXXXXX for
all necessary and reasonable expenses, and in particular all phone and
communications expenses incurred in performing the Services, and
XXXXXX shall submit periodic invoices for the expenses and
IDSI shall pay such invoices within 20 days.
5. Compliance
with Law. Each party shall at all times
during the term of this Agreement perform and accept the Services and otherwise
act in compliance with any applicable laws, rules and regulations.
6. Relationship. This
Agreement does not make either party the employee, agent or legal representative
of the other for any purpose whatsoever. Neither party is granted any
right or authority to assume or to create any obligation or responsibility,
express or implied, on behalf of or in the name of the other
party. In fulfilling its obligations pursuant to this Agreement, each
party shall be acting as an independent contractor. IDSI
shall not have the right to, and shall not, control the manner
or
prescribe the method by which the Services are performed by
XXXXXX except as specifically set forth hereunder.
7. Assignment. XXXXXX
shall not have the right to assign or otherwise transfer his rights and
obligations under this Agreement except with the prior written consent of
IDSI. IDSI may assign or transfer its rights
under this Agreement to a successor corporation or to an affiliate.
8. Notices. Notices
permitted or required to be given hereunder shall be deemed sufficient only
if
in writing and:
a. Given
by
hand delivery or by registered or certified mail, postage prepaid, addressed
to
the respective addresses of the parties as first written above or at such other
addresses as the respective parties may designate by like notice from time
to
time. Notices
so given shall be effective upon (a) receipt by the party to
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which notice is given, or (b) on the fifth business day following the date
such
notice was posted, whichever occurs first; or
b. Given
by
fax to the respective parties at the fax number first written above, or at
such
other number as the respective parties may designate by like notice from time
to
time. Notices so given shall be effective upon receipt by the party
to which notice is given, and a fax transmission receipt evidencing successful
transmission of the fax according to this Section shall be sufficient
documentation to establish receipt by the receiving party.
9. IDSI
Identity. XXXXXX hereby
represents, warrants and covenants that he will maintain and promote
IDSI’s name, trademarks, trade names, logos, patents,
copyrights, and other identifying material used in connection with the CTLM®.
XXXXXX
shall take all reasonable steps and action at his own
expense to protect and prevent IDSI’s, name, trademarks, trade
names, and logos as well as patents, copyrights and any and all other
identifying material upon or used in connection with the CTLM® from being
copied,
duplicated, reproduced, defaced, pirated or in any other way used either
directly or indirectly by any party or entity whatsoever without
IDSI’s written consent. All present trademarks, trade names,
logos, patents, copyrights, and other identifying material used in connection
with the CTLM®
shall remain the exclusive property of IDSI. Upon
termination of this Agreement XXXXXX shall cease use of all
trademarks, trade names, logos, patents, copyrights, and other identifying
material used in connection with the CTLM®. XXXXXX
shall promptly report any unauthorized use of trademarks, trade names, logos,
patents, copyrights, and other identifying material used in connection with
the
CTLM®.
10. Non-Compete
and Direct Dealings. XXXXXX hereby
represents, warrants and covenants that he will not, during the term of this
Agreement, engage in the manufacture, promotion, and/or sale of any products
which would be competitive with the products covered in this Agreement (i.e.,
products related to optical breast cancer detection), and during the term of
this Agreement and for a period of 2 years thereafter
XXXXXX shall not, directly or
indirectly, become associated in any capacity with any person, firm or
corporation competing with or planning to compete with IDSI in
the manufacture or sale of similar products. During the term of this Agreement
and for a period of 2 years thereafter
XXXXXX shall not directly or
indirectly attempt to contact or initiate dealings with any
IDSI sources or suppliers of the CTLM or financial institutions
contacted by IDSI, or any existing or prospective
customers unless such contacts are with the express written
permission of IDSI and such contact is clearly stated to be
solely in relation to IDSI business.
11. Foreign
Corrupt Practices
Act. XXXXXX shall
comply with all requirements of the Export Administration Regulations (“EAR”),
the United States Foreign Corrupt Practices Act or any other applicable law
or
administrative regulation of the United States Government, as those laws,
regulations and rules are amended from time to time.
12. Entire
Agreement. Except as specifically set
forth below, this Consulting Agreement, including all the Schedules now or
hereafter attached hereto and incorporated as an integral part of this
Agreement, constitutes the entire agreement of the parties with respect to
the
subject matter hereof and supersedes all previous proposals, oral or
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written,
and all negotiations, conversations or discussions heretofore had between the
parties related to the subject matter of this Agreement. Further,
except as specifically set forth below, each party warrants that it is not
a
party to any other agreement that would prevent it from entering into this
Agreement, or which would adversely effect its performance under this Agreement.
Further, the parties agree as follows:
(i)
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The
Confidentiality and Non-Solicitation Agreement signed by
XXXXXX and IDSI in August 2004 shall
remain in full force and effect.
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(ii)
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The
Stock Option Agreements previously entered into between
IDSI and XXXXXX shall remain in full
force and effect until the expiration dates
thereof.
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(iii)
|
The
Employment Agreement dated January 18, 2007, which was entered into
by and
between XXXXXX and IDSI, is hereby
terminated, except for the continuing provisions within it, as of
the
Effective Date of this Consulting
Agreement.
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There
are
no other understandings or covenants, expressed or implied, between the parties
not expressly set forth in this Agreement.
13. Amendment. This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by written amendment signed
by
the parties hereto.
14. Severability. In
the event that any of the terms of this Agreement are in conflict with, or
invalid or unenforceable under, any rule of law or statutory provision or
otherwise unenforceable under the laws or regulations of any government or
subdivision thereof, such terms shall be modified and limited, but only to
the
extent necessary to make such affected provision valid or
enforceable. Such invalidity or unenforceability shall not invalidate
any of the other terms of this Agreement, and this Agreement shall continue
in
full force and effect.
15. Waiver. No
failure by either party to take any action or assert any right hereunder shall
be deemed to be a waiver of such right in the event of the continuation or
repetition of the circumstances giving rise to such right. No waiver of any
one
provision hereunder shall be considered a waiver of any other provision
hereunder.
16. Governing
Law. This Agreement shall be governed
by, and interpreted and construed according to, the internal laws, and not
the
law of conflicts, of the State of Florida.
17. Arbitration. The
parties agree that any disputes or questions arising hereunder, including the
construction or application of this Agreement, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association (AAA) then in force. The arbitrators shall look solely to
the Agreement to settle the dispute or questions unless the matter is not
covered in the Agreement. Arbitration can be initiated at the written
request of either IDSI or
XXXXXX. Any part of this
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Agreement
that is not in dispute shall continue to be performed during
arbitration. The cost of the Arbitration shall be shared equally by
the parties, unless the Arbitrator (s) determines that the expenses shall be
otherwise shared or paid. Arbitration shall take place in Broward
County, Florida.
18. Costs
and Expenses. If there is any claim,
arbitration, litigation or controversy arising out of this Agreement or its
interpretation or enforcement, the prevailing party shall recover from the
other
all reasonable legal fees and expenses of its attorneys.
19. Written
Agreement. The parties intend to be
bound only upon executing a written agreement. Neither continued
Services nor any other conduct shall imply a continuing agreement upon the
expiration of this Agreement.
20. Counterparts. This
Agreement may be signed in one or more counterparts with the same effect as
if
the signatures to each counterpart were upon a single instrument. All
counterparts shall be considered an original of this Agreement. All
counterparts shall be construed together and shall constitute one
Agreement.
21. Binding
Agreement. Each party binds itself, its
partners, successors, permitted assigns and legal representatives to the other
party to this Agreement and to the partners, successors, permitted assigns
and
legal representatives of such other party with respect to all provisions of
this
Agreement.
22. Headings. The
headings contained herein are for convenience of reference only and are not
intended to define or limit the scope of any provisions of this
Agreement.
23. Necessary
Acts. Each party shall do and perform
such acts and execute and deliver any instruments as may be required by law
or
reasonably requested by notice hereunder by the other party to establish,
maintain and protect the respective rights and remedies of the other party,
and
to carry out the intent and purpose of this Agreement.
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of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
on December 26, 2007.
IMAGING
DIAGNOSTIC SYSTEMS, INC.
By: /s/
Xxx X.
Xxxxxx
Xxx
X.
Xxxxxx
Co-Chairman
IDSI Board of Directors
CONSULTANT:
By:
/s/ Xxx Xxxxxx
Xxx
Xxxxxx
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