As filed with the Securities and Exchange Commission on January 8, 2002 Reg.
No. 33
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
IMAGING TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0021693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
15175 Innovation Drive
San Diego, California 92128
(858) 613-1300
(Address of principal executive offices)
________________________________________________
ADVISORY AND CONSULTING AGREEMENTS
(Full title of plan)
________________________________
Brian Bonar
President
15175 Innovation Drive
San Diego, CA 92128
(Name and address of agent for service)
(858) 613-1300
(Telephone number, including area code of agent for service)
Copy to:
Naccarato & Associates
19600 Fairchild, Suite 260
Irvine, CA 92612
(949) 851-9261
CALCULATION OF REGISTRATION FEE
-------------------------------
Title of securities Proposed maximum Proposed maximum
to be registered Amount to be offering price Aggregate offering Amount of
Registered per share Price Registration fee
------------ ---------------- ------------------- -----------------
Common Stock
($.005 par value). . 26,000,000 .02 $520,000 $130.00
-------------------- ------------ ---------------- ------------------- -----------------
Estimated solely for the purpose of determining the amount of registration fee
and pursuant to Rules 457(c) and 457 (h) of the General Rules and Regulations
under the Securities Act of 1993, based based the average of the bid and asked
prices per share of the registrant's common stock reported by the OTC Nasdaq
Stock Market on December 28, 2001.
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section 10(a) prospectus
is omitted from the registration statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Imaging Technologies Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) the Company's annual report on Form 10-K for the fiscal year ended June
30, 2000 and June 30, 2001 file number 000-12641;
(b) all other reports filed by the Company pursuant to Section 13(a) or
Section 15 (d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since June 30, 2001 through the date hereof;
(c) the Registrant's Form 8-A filed on July 6, 1984 pursuant to Section 12
of the Exchange Act, in which there is described the terms, rights and
provisions applicable to the Registrant's outstanding Common Stock, and
(d) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, but prior to the filing of a post-effective amendment to this
Registration Statement which Indicates that all shares of Common Stock
registered hereunder have been sold or that deregisters all such shares of
common Stock then remaining unsold, such documents being deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides, in general, that a corporation incorporated under the laws of the
State of Delaware, such as the registrant, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than a derivative action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonable entitled to
indemnity for such expenses.
Our certificate of incorporation provides that directors shall not be
personally liable for monetary damages to our company or our stockholders for
breach of fiduciary duty as a director, except for liability resulting from a
breach of the director's duty of loyalty to our company or our stockholders,
intentional misconduct or willful violation of law, actions or inactions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives improper personal benefit.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission. Our certificate of
incorporation also authorizes us to indemnify our officers, directors and other
agents to the fullest extent permitted under Delaware law. Our bylaws provide
that the registrant shall indemnify our officers, directors and employees. The
rights to indemnity thereunder continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person. In addition, expenses
incurred by a director or officer in defending any action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of our company
shall be paid by the registrant unless such officer, director or employee is
adjudged liable for negligence or misconduct in the performance of his or her
duties.
This means that our certificate of incorporation provides that a
director is not personally liable for monetary damages to us or our stockholders
for breach of his or her fiduciary duties as a director. A director will be held
liable for a breach of his or her duty of loyalty to us or our stockholders, his
or her intentional misconduct or willful violation of law, actions or in actions
not in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director including injunctive relief or
rescission. Our certificate of incorporation authorizes us to indemnify our
officers, directors and other agent to the fullest extent permitted under
Delaware law. We have entered into indemnification agreements with all of our
officers and directors. In some cases, the provisions of these indemnification
agreements may be broader than the specific indemnification provisions
contained in our certificate of incorporation or otherwise permitted under
Delaware law. Each indemnification agreement may require us to indemnify an
officer or director against liabilities that may arise by reason of his
status or service as an officer or director, or against liabilities arising
from the director's willful misconduct of a culpable nature.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits to this registration statement are listed in the index to
Exhibits on page 9.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
securities Act 1933:
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraph (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraph is
contained in periodic reports filed by the Company pursuant to Section 13 or
Section 15 (d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by mean of a post-effective amendment
any of the securities being registered hereunder that remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
company's annual report pursuant to Section 13 (a) or Section 15 (d) of the
Securities and Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the above-described provisions or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing a form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California on January 8, 2002.
Imaging Technologies Corporation
By /s/ Brian Bonar
Brian Bonar, President & Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian Bonar and Philip J. Englund, each of them
acting individually as his attorney-in-fact, each with full power of
substitution and resubstitution, for him in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith as fully to al intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------------------- ---------------------------------- ---------------
/s/Brian Bonar . . . . Chairman of the Board of Directors January 8, 2002
----------------------
Brian Bonar. . . . . . and Chief Executive Officer
/s/ Robert A. Dietrich Director January 8, 2002
----------------------
Robert A. Dietrich
/s/ Eric W. Gaer . . . Director January 8, 2002
----------------------
Eric W. Gaer
/s/ Stephen J. Fryer . Director January 8, 2002
----------------------
Stephen J. Fryer
s/ Richard H. Green. . Director January 8, 2002
----------------------
Richard H. Green
INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NO. DESCRIPTION NUMBERED PAGES
--- ----------- ---------------
4.1 Advisory and Consulting Agreements
5.1 Opinion of Counsel, regarding the legality of the securities
registered hereunder.
23.1 Consent of Boros & Farrington PC.
23.2 Consent of Counsel (included as part of Exhibit 5.1)
24 Power of Attorney (Contained within Signature Page)
Exhibit 4.1 Advisory and Consulting Agreement
Number of Shares and Options
--------------------------------
4.1(a)
11,111,111
4.1(b) 2,777,778
4.1(c) 2,777,778
4.1(d) 5,555,556
4.1(e) 833,333
Miscellaneous 2,944,444
Exhibit 4.1(a)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of December, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 15175
Innovation Drive, San Diego, CA 92128, and Peter Benz, 543 Virginia Street, San
Mateo, CA 94402 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder relations, and other
projects as may be assigned by Brain Bonar, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable
times when and to the extent requested by, and subject to the direction of Mr.
Bonar.
3. Reasonable travel and other expenses necessarily incurred by Consultant
to render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive warrants to purchase eleven million, one hundred eleven
thousand and one hundred eleven (11,111,111) shares of the common stock of the
Company at an exercise price of $0.018 cents per share.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be San Diego County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this Agreement
will be the property of the Consultant, subject to the irrevocable right and
license of the Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment of royalties.
Such rights and license will be exclusive during the term of this Agreement, and
any extensions or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic content of materials
created by the Consultant under this Agreement (as opposed to the form or format
of such materials) will be, and hereby are, deemed to be "works made for hire"
and will be the exclusive property of the Company. Each party agrees to execute
such documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims
or damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
Peter Benz Imaging Technologies Corporation
/s/ Peter Benz
_______________ By:_/s/Brian Bonar
------------------
Brian Bonar
Chief Executive Officer
Exhibit 4.1(b)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of December, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 15175
Innovation Drive, San Diego, CA 92128, and George Furla, 2317 Mount Olympus Dr.,
Los Angeles, CA 94402 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder relations, and other
projects as may be assigned by Brain Bonar, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable
times when and to the extent requested by, and subject to the direction of Mr.
Bonar.
3. Reasonable travel and other expenses necessarily incurred by Consultant
to render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive warrants to purchase two million, seven hundred seventy
seven thousand, seven hundred seventy eight (2,777,778) shares of the common
stock of the Company at an exercise price of $0.018 cents per share.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be San Diego County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this Agreement
will be the property of the Consultant, subject to the irrevocable right and
license of the Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment of royalties.
Such rights and license will be exclusive during the term of this Agreement, and
any extensions or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic content of materials
created by the Consultant under this Agreement (as opposed to the form or format
of such materials) will be, and hereby are, deemed to be "works made for hire"
and will be the exclusive property of the Company. Each party agrees to execute
such documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims
or damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
George Furla . . Imaging Technologies Corporation
/s/ George Furla /s/ Brian Bonar
_____________. . By:______________________
Brian Bonar
Chief Executive Officer
Exhibit 4.1(c)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of December, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 15175
Innovation Drive, San Diego, CA 92128, and Howard Schraub, 8638 Rueffe Monte
Carlo, La Jolla CA 92037 ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder relations, and other
projects as may be assigned by Brain Bonar, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable
times when and to the extent requested by, and subject to the direction of Mr.
Bonar.
3. Reasonable travel and other expenses necessarily incurred by Consultant
to render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive warrants to purchase two million, seven hundred seventy
seven thousand, seven hundred seventy seven (2,777,777) shares of the common
stock of the Company at an exercise price of $0.018 cents per share.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be San Diego County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this Agreement
will be the property of the Consultant, subject to the irrevocable right and
license of the Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment of royalties.
Such rights and license will be exclusive during the term of this Agreement, and
any extensions or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic content of materials
created by the Consultant under this Agreement (as opposed to the form or format
of such materials) will be, and hereby are, deemed to be "works made for hire"
and will be the exclusive property of the Company. Each party agrees to execute
such documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims
or damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
Howard Schraub . . . . Imaging Technologies Corporation
/s/ Howard Schraub . . /s/ Brian Bonar
______________________ By:______________________
Brian Bonar
Chief Executive Officer
Exhibit 4.1(d)
CONSULTING AGREEMENT
AGREEMENT, effective as of the 2nd day of December, 2001, between Imaging
Technologies Corporation, a Delaware Corporation (the "Company"), of 15175
Innovation Drive, San Diego, CA 92128, and C.S. Kim, Korea ("Consultant").
WHEREAS, THE Company desires the Consultant to provide consulting services
to the Company pursuant hereto and Consultant is agreeable to providing such
services.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein, the parties hereto agree as follows:
1. Consultant shall serve as a consultant to the Company on general
corporate matters, particularly related to shareholder relations, and other
projects as may be assigned by Brain Bonar, Chief Executive Officer of the
Company on an as needed basis.
2. The Company shall be entitled to Consultant's services for reasonable
times when and to the extent requested by, and subject to the direction of Mr.
Bonar.
3. Reasonable travel and other expenses necessarily incurred by Consultant
to render such services, and approved in advance by the Company, shall be
reimbursed by the Company promptly upon receipt of proper statements, including
appropriate documentation, with regard to the nature and amount of those
expenses. Those statements shall be furnished to the Company monthly at the end
of each calendar month in the Consulting Period during which any such expenses
are incurred. Company shall pay expenses within fifteen (15) business days of
the receipt of a request with appropriate documentation.
4. In consideration for the services to be performed by Consultant, the
Consultant will receive warrants to purchase one million, three
hundred-eighty-eight thousand and eight hundred eighty nine (5,555,556) shares
of the common stock of the Company at an exercise price of $0.018 cents per
share.
5. It is the express intention of the parties that the Consultant is an
independent contractor and not an employee or agent of the Company. Nothing in
this agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and the Company.
Both parties acknowledge that the Consultant is not an employee for state or
federal tax purposes. The Consultant shall retain the right to perform services
for others during the term of this agreement.
6. Neither this agreement nor any duties or obligations under this agreement
may be assigned by the Consultant without the prior written consent of the
Company.
7. This agreement may be terminated upon ten (10) days written notice by
either the Company or the Consultant.
8. Any notices to be given hereunder by either party to the other may be
given either by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices shall
be addressed to the parties at the addressed appearing in the introductory
paragraph of this agreement, but each party may change the address by written
notice in accordance with the paragraph. Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two days after mailing.
9. This agreement supersedes any and all agreements, either oral or written,
between the parties hereto with respect to the rendering of services by the
Consultant for the Company and contains all the covenants and agreements between
the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing signed by the party to be charged.
10. This agreement will be governed by and construed in accordance with the
laws of the State of California, without regard to its conflicts of laws
provisions; and the parties agree that the proper venue for the resolution of
any disputes hereunder shall be San Diego County, California.
11. For purposes of this Agreement, Intellectual Property will mean (i)
works, ideas, discoveries, or inventions eligible for copyright, trademark,
patent or trade secret protection; and (ii) any applications for trademarks or
patents, issued trademarks or patents, or copyright registrations regarding such
items. Any items of Intellectual Property discovered or developed by the
Consultant (or the Consultant's employees) during the term of this Agreement
will be the property of the Consultant, subject to the irrevocable right and
license of the Company to make, use or sell products and services derived from
or incorporating any such Intellectual Property without payment of royalties.
Such rights and license will be exclusive during the term of this Agreement, and
any extensions or renewals of it. After termination of this Agreement, such
rights and license will be nonexclusive, but will remain royalty-free.
Notwithstanding the preceding, the textual and/or graphic content of materials
created by the Consultant under this Agreement (as opposed to the form or format
of such materials) will be, and hereby are, deemed to be "works made for hire"
and will be the exclusive property of the Company. Each party agrees to execute
such documents as may be necessary to perfect and preserve the rights of either
party with respect to such Intellectual Property.
12. The written, printed, graphic, or electronically recorded materials
furnished by the Company for use by the Consultant are Proprietary Information
and are the property of the Company. Proprietary Information includes, but is
not limited to, product specifications and/or designs, pricing information,
specific customer requirements, customer and potential customer lists, and
information on Company's employees, agent, or divisions. The Consultant shall
maintain in confidence and shall not, directly or indirectly, disclose or use,
either during or after the term of this agreement, any Proprietary Information,
confidential information, or know-how belonging to the Company, whether or not
is in written form, except to the extent necessary to perform services under
this agreement. On termination of the Consultant's services to the Company, or
at the request of the Company before termination, the Consultant shall deliver
to the Company all material in the Consultant's possession relating to the
Company's business.
13. The obligations regarding Proprietary Information extend to information
belonging to customers and suppliers of the Company about which the Consultant
may have gained knowledge as a result of performing services hereunder.
14. The Consultant shall not, during the term of this agreement and for a
period of one year immediately after the termination of this agreement, or any
extension of it, either directly or indirectly (a) for purposes competitive with
the products or services currently offered by the Company, call on, solicit, or
take away any of the Company's customers or potential customers about whom the
Consultant became aware as a result of the Consultant's services to the Company
hereunder, either for the Consultant or for any other person or entity, or (b)
solicit or take away or attempt to solicit or take away any of the Company's
employees or consultants either for the Consultant or for any other person or
entity.
15. The Company will indemnify and hold harmless Consultant from any claims
or damages related to statements prepared by or made by Consultant that are
either approved in advance by the Company or entirely based on information
provided by the Company.
Consultant: Company:
C.S. Kim . . . . . . . Imaging Technologies Corporation
/s/ C.S. Kim . . . . . /s/ Brian Bonar
_____________ _ By:______________________
Brian Bonar
Chief Executive Officer
Exhibit 4.1(e)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of December
2, 2001, by and between Owen Naccarato, 19600 Fairchild, Suite 260, Irvine, CA
92612 ("Consultant") and Imaging Technologies Corporation, a Delaware
Corporation (the "Company"), of 15175 Innovation Drive, San Diego, CA 92128.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on October 1, 2002, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning
to fully develop and enhance the Company's assets, resources, products and
services; and
(b) Advise the Company relative to its legal needs relating
specifically to its corporate transactional needs.
4. DUTIES OF THE COMPANY.
------------------------
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with full and complete copies of all stockholder reports;
with all data and information supplied by any financial analyst, and with all
brochures or other sales materials relating to its products or services.
5. COMPENSATION.
------------
The Company will immediately grant Consultant the option to purchase
833,333 shares of the Company's Common Stock with an exercise price at $.018 per
share, which option shall expire on December 1, 2002 at 5:00 P.M. P.S.T.
Consultant in providing the foregoing services, shall not be responsible for any
out-of-pocket costs, including, without limitation, travel, lodging, telephone,
postage and Federal Express charges.
6. REPRESENTATION AND INDEMNIFICATION.
------------------------------------
The Company shall be deemed to have been made a continuing representation
of the accuracy of any and all facts, material information and data which it
supplies to Consultant and acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating such information and
otherwise performing its advisory functions. Consultant in the absence of
notice in writing from the Company, will rely on the continuing accuracy of
material, information and data supplied by the Company. Consultant represents
that he has knowledge of and is experienced in providing the aforementioned
services.
7. MISCELLANEOUS.
-------------
Termination: This Agreement may be terminated by either Party upon
-----------
written notice to the other Party for any reason which shall be effective five
(5) business days from the date of such notice. This Agreement shall be
terminated immediately upon written notice for material breach of this
Agreement.
Modification: This Consulting Agreement sets forth the entire
------------
understanding of the Parties with respect to the subject matter hereof. This
----
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
-------
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
------
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Options under this Agreement are assignable at the
----------
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
------------
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
-------------
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles County, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Imaging Technologies Corporation Consultant
/s/ Brian Bonar. . . . . . . . . /s/ Owen Naccarato
-------------------------------- ------------------
Brian Bonar. . . . . . . . . . . Owen Naccarato
Chief Executive Officer
29
NACCARATO & ASSOCIATES
Owen M. Naccarato, Esq.
19600 Fairchild, Suite 260
Irvine, CA 91612
Office: (949) 851-9261 Fax: (949) 851-9262
January 8, 2002
Imaging Technologies Corporation
Re: Opinion of Counsel - Registration Statement on Form S-8
Gentleman:
I have acted as counsel for Imaging Technologies Corporation (the
"Company"), in connection with the preparation and filing of the Company's
Registration statement on Form S-8 under the Securities Act of 1933, as amended,
(the "Registration Statement"), relating to 26,000,000 shares of the Company's
common stock, $.005 par value, (the "common stock"), issuable pursuant to the
Company's Advisory and Consultants Agreements, (the"Plan").
I have examined the Certificate of Incorporation, as amended, and the
By-Laws of the company and all amendments thereto, the Registration Statement
and originals, or copies certified to my satisfaction, of such records and
meetings, written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in my judgement are necessary or appropriate to enable me to
render the opinions expressed below.
Based on the foregoing examination, I am of the opinion that the shares of
Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, will be validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Owen Naccarato
_________________
-----------------
Owen Naccarato, Esq.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated October 10, 2001 appearing in Imaging
Technologies Corporation's Annual Report on Form 10-K for the fiscal year ended
June 30, 2001.
/s/ Boros & Farrington PC-
Boros & Farrington PC
San Diego, California
January 7, 2002