Exhibit 4.3 CONSULTING AGREEMENT
AGREEMENT, effective as of the 1st day of July, 2003, between AMNIS Systems
Inc., a Delaware Corporation (the "Company"), of 0000 Xxxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000, and Xxxxx Benz, 00 Xxxxxxxx, Xxxxxxxxxxxx, XX 000000
("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 Xxxxx Xxx Xxxxxxxx, Chief
Executive Officer of the Company on an as needed basis.
2. Term: 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 Xx. Xxx Xxxxxxxx. The term of this Consulting
Agreement began as of the date of this Agreement, and shall terminate
on October 1, 2003.
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 a warrant to purchase three million five
hundred thousand (3,500,000) shares of the common stock of the Company
at an exercise price of $0.05 cents per share the warrant expire July
1, 2004.
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.
5.1 The consulting services shall not involve and the Consultant is
not engaged in services in connection with the offer or sale of
securities in a capital-raising transaction for Amnis, and further,
the Consultant does not and will not directly or indirectly promote or
maintain a market for Amnis's securities.
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 Santa Xxxxx 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:
Xxxxx Benz AMNIS SYSTEMS INC.
______________________ By:____________________
Xxxxx Xxx Xxxxxxxx
Chief Executive Officer
