Exhibit 4.1(a)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this October 17, 2001 by and between Xxxxx X. Xxxxx (hereinafter referred to
as "Consultant"), an individual, having his principle address at 4182 H. Xxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 and Amnis Systems (hereinafter
referred to as the "Company") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to 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;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
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 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement 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 of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities, and shall review and advise the Company regarding its
and his 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;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) Advise the Company relative to the recruitment and employment
of key executives consistent with the expansion of operations of the Company;
9
(d) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional loans,
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
(f) A written monthly report of all activity related to the
consulting services identified herein.
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 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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Within 10 days of the execution of this Agreement, the Company
shall execute a written request to its transfer agent to prepare and deliver to
Consultant, or it's agent, a common stock certificate for 150,000 shares of
freely tradable, non-legend, Amnis Systems Incorporated equity.
(b) Subject to section 4(d) below, in addition to the compensation
outlined in section 4(a) above, the Company agrees that on the first day of the
next three (3) thirty (30) day periods following the execution of this agreement
(for example: if the Agreement was executed on January 1, the Company would
execute and deliver the stock issuance request to it's transfer agent on
February 1, March 1 and April 1), the Company shall execute a written request to
it's transfer agent to prepare and deliver to Consultant, or it's agent, a
common stock certificate for 50,000 shares of freely tradable, non-legend, Amnis
Systems Incorporated equity. Therefore, assuming the Consultant has complied
with the terms of section 4(d) below, by the 100th day subsequent to the date of
the execution of this Agreement, for the compensation outlined in this section
(section 4(b)), the Company will have requested that it's transfer agent deliver
three (3) common stock certificates totaling 150,000 shares.
(c) The Compensation outlined in Section 5(a)-(b) above shall be
effected through an effective S-8 Registration of shares, to be filed and made
effective within 10 days of the execution of this Agreement.
(d) The Consultant shall prepare and publish, subject to the approval
of the Company, at least two (2) press releases (for national release) for each
thirty (30) day period outlined in section 4(b) above. Therefore, the Consultant
shall publish a total of six (6) press releases for national release for the
Agreement period as outlined in section 2 of this Agreement.
5.5 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
10
Subject to the prior approval of the Company, 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. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
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: Subsequent to no less than 30 days after the execution of
-----------
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 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 San Diego, 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)).
11
SIGNATURE LINES
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Amnis Systems Inc. CONSULTANT
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxx
----------------------------- ---------------------------
Xxxxxxx Xxxxxxxx, Xxxxx Xxxxx
Chairman, President and CEO
12
4.1(b)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this October 17, 2001 by and between Xxxx X. Xxxx (hereinafter referred to as
"Consultant"), an individual, having his principle address at 0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxx 00000 and Amnis Systems (hereinafter referred to as the
"Company") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management, strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with strategic planning, marketing
and legal consulting services and is desirous of performing such services for
the Company;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
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 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement 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 of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. 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;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional loans,
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
13
(e) Completion of an S-8 Registration Statement to be filed with
the Securities Exchange Commission (the "SEC") for the Company's common shares
to be used as compensation for this and other advisory and consulting
agreements.
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 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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Stock Purchase. Consultant shall have the right to purchase
--------------
140,000 shares of the Company's common shares at an exercise price of USD $.36
per share. Consultant's rights regarding these shares shall vest immediately
upon execution of this Agreement and receipt of the stock purchase amount by the
Company.
(b) Non-Option Shares. Consultant shall also receive, within 3
-----------------
days of the effectiveness of the S-8 Registration Statement (referenced in
Section 3(e) above), 190,000 shares of the Company's common stock. Said
non-option shares shall be freely tradable and shall be free of any and all
other encumbrances.
(c) Within 3 days of the effectiveness of the S-8 Registration
Statement (referenced in Section 3(e) above), the Company shall execute a
written request to its transfer agent to prepare and deliver to Consultant, or
it's agent, two common stock certificates for (1) 40,000 and (2) 150,000 freely
tradable, non-legend, shares of the Company's common stock.
(d) The Compensation outlined in Section 5(a)-(c) above shall be
conveyed through an effective S-8 registration of common shares (referenced in
Section 3(e) above).
5.5 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
Subject to the prior approval of the Company, 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. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
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
14
that he has knowledge of and is experienced in providing the aforementioned
services.
7. MISCELLANEOUS.
-------------
Termination: Subsequent to and no less than 30 days after the execution of
-----------
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 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 San Diego, 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)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Amnis Systems Inc. CONSULTANT
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx X. Xxxx
--------------------------- --------------------------
Xxxxxxx Xxxxxxxx, Xxxx X. Xxxx
Chairman, President and CEO
15
4.1(c)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this October 17, 2001 by and between Xxxx X. Nacaarato (hereinafter referred
to as "Consultant"), an individual, having his principle address at 00000
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 and Amnis Systems (hereinafter
referred to as the "Company") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management, strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with strategic planning, marketing
and legal consulting services and is desirous of performing such services for
the Company;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
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 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement 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 of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. 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;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(d) Advice and recommendations regarding corporate financing
16
including the structure, terms and content of bank loans, institutional loans,
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
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 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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Stock Purchase. Consultant shall have the right to purchase
--------------
70,000 shares of the Company's common shares at an exercise price of USD $.36
per share. Consultant's rights regarding these shares shall vest immediately
upon execution of this Agreement and receipt of the stock purchase amount by the
Company
(b) Within 3 days of the effectiveness of the S-8 Registration
Statement (referenced in Section 3(e) above), the Company shall execute a
written request to its transfer agent to prepare and deliver to Consultant, or
it's agent, a common stock certificate for 70,000 freely tradable, non-legend,
shares of the Company's common stock.
(c) The Compensation outlined in Section 5(a-b) above shall be
conveyed through an effective S-8 registration of common shares.
5.6 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
Subject to the prior approval of the Company, 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. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
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: Subsequent to and no less than 30 days after the execution of
-----------
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
17
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 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 San Diego, 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)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Amnis Systems Inc. CONSULTANT
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx X. Xxxxxxxxx
------------------------------ -------------------------
Xxxxxxx Xxxxxxxx, Xxxx X. Xxxxxxxxx
Chairman, President and CEO
18
4.1(d)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this October 17, 2001 by and between Xxxx Xxxxxxx (hereinafter referred to as
"Consultant"), an individual, having his principle address at 0000 Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxx, XX 00000 and Amnis Systems (hereinafter
referred to as the "Company") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management, strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with strategic planning, marketing
and legal consulting services and is desirous of performing such services for
the Company;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
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 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement 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 of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. 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;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(d) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans, institutional loans,
19
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
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 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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Stock Purchase. Consultant shall have the right to purchase
--------------
275,000 shares of the Company's common shares at an exercise price of USD $.36
per share. Consultant's rights regarding these shares shall vest immediately
upon execution of this Agreement and receipt of the stock purchase amount by the
Company.
(b) Within 3 days of the effectiveness of the S-8 Registration
Statement (referenced in Section 3(e) above), the Company shall execute a
written request to its transfer agent to prepare and deliver to Consultant, or
it's agent, a common
stock certificate for 275,000 freely tradable, non-legend, shares of the
Company's common stock.
(c) The Compensation outlined in Section 5(a-b) above shall be
conveyed through an effective S-8 registration of common shares.
5.7 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
Subject to the prior approval of the Company, 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. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
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: Subsequent to and no less than 30 days after the execution of
-----------
this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
20
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 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 San Diego, 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)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Amnis Systems Inc. CONSULTANT
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
-------------------------------- --------------------------
Xxxxxxx Xxxxxxxx, Xxxx Xxxxxxx
Chairman, President and CEO
21
4.1(e)
CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement" or "Agreement") is made as
of this October 17, 2001 by and between Xxxx Xxxxx (hereinafter referred to as
"Consultant"), an individual, having his principle address at 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xx Xxxxx, Xxxxxxxxxx 00000 and Amnis Systems (hereinafter
referred to as the "Company") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Company requires and will continue to require consulting services
relating to management, strategic planning and marketing in connection with its
business; and
WHEREAS, Consultant can provide the Company with strategic planning, marketing
and legal consulting services and is desirous of performing such services for
the Company;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
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 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement 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 of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. 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;
(b) The implementation of a marketing program to enable the
Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(c) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof;
(d) Advice and recommendations regarding corporate financing
22
including the structure, terms and content of bank loans, institutional loans,
private debt funding, mezzanine financing, blind pool financing and other
preferred and common stock equity private or public financing; and
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 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.
------------
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Stock Purchase. Consultant shall have the right to purchase
--------------
115,000 shares of the Company's common shares at an exercise price of USD $.36
per share. Consultant's rights regarding these shares shall vest immediately
upon execution of this Agreement and receipt of the stock purchase amount by the
Company.
(b) Within 3 days of the effectiveness of the S-8 Registration
Statement (referenced in Section 3(e) above), the Company shall execute a
written request to its transfer agent to prepare and deliver to Consultant, or
it's agent, a common stock certificate for 115,000 freely tradable, non-legend,
shares of the Company's common stock.
(c) The Compensation outlined in Section 5(a-b) above shall be
conveyed through an effective S-8 registration of common shares.
5.8 COSTS AND EXPENSES
------------------
(a) Miscellaneous Costs.
-------------------
Subject to the prior approval of the Company, 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. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
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: Subsequent to and no less than 30 days after the execution
-----------
of this Agreement, this Agreement may be terminated by either Party upon written
notice to the other Party for any reason and shall be effective five (5)
23
business days from the date of such notice. Termination of this Agreement shall
cause Consultant to cease providing services under this Agreement; however,
termination for any reason whatever, shall not decrease or eliminate the
compensatory obligations of the Company as outlines in Section 5 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 San Diego, 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)).
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Amnis Systems Inc. CONSULTANT
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxx
------------------------------ -----------------------------
Xxxxxxx Xxxxxxxx, Xxxx Xxxxx
Chairman, President and CEO
24
4.1(f)
CONSULTING AGREEMENT
This Consulting Agreement is made as of the 5 day of November 2001
------------
between Amnis Systems, Inc. a Delaware Corporation and/or its subsidiaries
(together collectively, the "Company") having its principle place of business at
0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 and Xxxxxxx Xxxxxxxxx (the
-----------------
Consultant.
The parties agree as follows:
I. Consulting Services and Reporting
Consultant shall perform the following tasks under the Agreement:
Identify and evaluate merger and acquisition candidate companies for potential
------------------------------------------------------------------------------
combination with Amnis Systems
------------------------------
Consultant shall report directly to Xxxxxxx Xxxxxxxx or his/her authorized
designee.
Compensation and Expenses
(a) Consultant shall receive, within 3 days of the effectiveness of the
S-8 Registration Statement , 20,000 shares of the Company's common
stock. Said shares shall be freely tradable and shall be free of any
and all other encumbrances.
(b) Within 3 days of the effectiveness of the S-8 Registration Statement,
the Company shall execute a written request to its transfer agent to
prepare and deliver to Consultant, or it's agent, one common stock
certificate for 20,000 shares of freely tradable, non-legend, shares
of the Company's common stock.
(c) Consultant will be responsible for all costs and expenses incurred by
Consultant in performing services under the Agreement. Exceptions may
be made for particular expenses only if Company agrees in advance, in
writing, to reimburse Consultant for such expense.
Relationship of the Parties
Consultant's relationship with the Company is that of an independent contractor.
Consultant has no authority to create any obligations for Company by contract or
otherwise. Consultant will not be entitled to any employee benefits.
Consultant will be solely responsible for paying all taxes and insurance due
with respect to Consultant's compensation, unless Company's determines that such
deductions may be required by law.
Term
This Agreement shall expire on January 5, 2001 . In addition, either
------------------------
party may terminate Consultant's services under this Agreement at any time, with
or without cause, on not less than ten (10) days prior written notice. Sections
V to VIII of this Agreement will remain in effect for five (5) years following
completion of Consultant's services hereunder or five (5) years from the date of
termination, whichever is later.
Confidentiality
Company Information
Consultant will, at all times, while carrying out consulting services
for Company and thereafter, hold in strictest confidence, and not
copy, use, or disclose to any person or entity (consistent with
Company's instructions, or otherwise with Company's written consent)
any trade secrets or confidential or proprietary information of any
sort, including information relating to products, processes, know-how,
designs, formulas, developmental or experimental work, computer
programs, databases, other original works of authorship, customer
lists, business plans, financial information or other subject matter
pertaining to any business of Company or any persons or entities with
which it does business.
25
Former Employer Information
Consultant will not use or disclose any confidential or proprietary
information or trade secrets of former or concurrent clients or
employer, and will not bring on to the premises of Company any
unpublished document or any property belonging to former or concurrent
clients or employers, without the written consent of such clients or
employers.
Third Party Information
Company has received and will receive from third parties their
confidential or proprietary information subject to a duty on Company's
part to maintain the confidentiality of such information and to use it
only for certain limited purposes. Consultant will hold all such
confidential or proprietary information in the strictest confidence
and not copy, use, or disclose to any person or entity except as
consistent with Company's agreement with such third party. Consultant
warrants that the execution and performance of this Agreement will not
cause Consultant to be in breach of any employment or other
obligation.
Return of Documents
Upon completion or termination of Consultant's services for Company,
or earlier at Company's request, Consultant will return to Company all
documents and other materials containing confidential or proprietary
information belonging to Company or to third parties doing business
with Company.
Conflicts
During the term of this Agreement, Consultant will not engage (whether
for compensation or not), in any business activity that competes,
directly or indirectly, with any business conducted or planned by
Company, except with Company's prior written consent. Consultant will
not, during or after the term of this Agreement replicate or
substantially reproduce for itself or any third party any work product
done for Company hereunder.
Employees and Agents of Consultant
Each of Consultant's employees, agents, contractors, consultants,
partners or other persons, if any, who assist Consultant in the
performance of services for Company, shall have signed an agreement
binding them to substantially the same obligations as are set forth in
Sections V and VI of this Agreement.
Inventions
Assignment of Intellectual Property Rights
Consultant hereby assigns and transfers to Company Consultant's entire
right, title and interest in and to all inventions, original works of
authorship, developments, improvements, ideas, discoveries,
copyrights, mask work rights and trade secrets (collectively,
"Intellectual Property Rights") made, conceived, developed or reduced
to practice by Consultant (whether solely or jointly with others)
during the period of Consultant's services to Company, or which
resulted from or were suggested by services performed by Consultant
for Company. At Company's request, Consultant will promptly execute
any additional documents necessary or desirable to establish Company's
rights with respect to any Intellectual Property Rights assigned
hereunder.
Rights Reserved to Consultant
Attached to this Agreement as Exhibit A is a list describing all
Intellectual Property Rights owned by Consultant prior to the
performance of Consultant's services for Company which relate to
Company's proposed business and products and which are not assigned to
Company. If no such list is attached, Consultant represents that there
are no such Intellectual Property Rights.
Maintenance of Records
Consultant will maintain adequate and current written records of all
inventions and original works of authorship made by Consultant (solely
or jointly with others) during the course of Consultant's services to
26
Company. The records will be in the form of notes, sketches, drawings
and any other format that may be specified by Company. The records
will be available to and remain the sole property of Company at all
times.
Obtaining Patents, Copyrights and Mask Work Rights
Consultant will assist Company or its nominee in every reasonable way,
during and at any time after the performance of Consultants services,
to obtain United States and foreign patents, copyrights and mask work
rights covering the Intellectual Property Rights assigned hereunder.
In this connection, Consultant will execute any applications or other
documents, testify at any hearing or litigation which may arise,
provide Company any information known to Consultant which may be
pertinent as prior art to patent applications or which may be
pertinent for describing the best mode for practicing said
Intellectual Property Rights (Company may disclose such information in
patent applications as it deems necessary), and perform such other
lawful acts as may be reasonably requested by Company. Company will
pay all expenses related to such efforts and will compensate
Consultant at a reasonable rate for time actually spent by Consultant
at Company's request of such assistance.
If Company is unable because of Consultant's mental or physical
incapacity or for any other reason to secure Consultant's signature to
apply for or to pursue any application for any United States or
foreign patents, copyrights or mask work rights covering the
Intellectual Property Rights, then Consultant hereby irrevocably
designates and appoints Company and its duly authorized officers and
agents as Consultant's agent and attorney in fact, to act for and in
Consultant's behalf and to execute and file any such applications and
to do all other lawfully permitted acts to further the prosecution and
issuance of such patents, copyrights and mask work rights with the
same legal force and effect as if executed by Consultant.
Exception to Assignments
The provisions of this Agreement requiring assignment to Company do
not apply to any invention (i) made by Consultant entirely on
Consultant's own time without using Company's equipment, supplies,
facilities or trade secret information, and (ii) which does not relate
at the time of the conception or reduction to practice of the
invention to Company's business or to its actual or demonstrably
anticipated research or development, and (iii) which does not result
from any work performed by Consultant for Company. Consultant will
advise Company promptly in writing of any invention, original works of
authorship, development or trade secret that Consultant believes is
protected under this section VI (e) and will at that time provide to
Company in writing all evidence necessary to substantiate that belief.
Company will keep in confidence any confidential information so
disclosed which relates to inventions protected under this Section.
Company need not treat any such disclosed information as confidential
if it has previously been known to Company, or it at the time of
disclosure or thereafter the information is disclosed in patents or
other publications, imparted to Company by third parties having lawful
possession of the same, or is publicly known to the trade to which the
information relates.
Legal Restraints
In the event of a breach or threatened breach by Consultant of the
provisions of this Agreement, Company will be entitled to an
injunction restraining Consultant from violating the terms hereof.
Nothing in this Agreement will restrict Company from pursuing any
other remedies available to it for such breach or threatened breach,
including recovery of damages.
General Provisions
Notice
Any notice given in connection with this Agreement must be in writing.
Notice will be deemed given and effective on the third business day
following the date it is deposited, postage prepaid, in the United
States mail directed to the individual who signed this Agreement, at
the address set forth on the first page of this Agreement or to such
other address as specified, by giving notice as herein provided.
27
Notice given in any other fashion must be in writing and will be
deemed given and effective when actually received.
Governing Law
This Agreement will be governed by the laws of the State of California
as applied to agreements made and performed in California by residents
of California.
Entire Agreement
This Agreement sets forth the entire agreement and understanding
between the parties and supersedes all prior and contemporaneous
agreements and understandings, written or oral, on the subject matter
hereof. No modification or amendment of this Agreement, no any waiver
of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged.
Disputes
In the event any dispute should arise between the parties with respect
to the performance of either of them hereunder, the prevailing party
will be entitled to reasonable attorney's fees.
Severability
If one or more of the provisions in this Agreement are held
ineffective, unenforceable, or illegal for any reason, then the
remaining provisions will continue in full force and effect.
Successors and Assigns
This Agreement may not be assigned by Consultant. This Agreement will
be binding upon Consultant's heirs, executors, administrators, and
other legal representatives and will be for the benefits of Company,
its successors and its assigns.
Paragraph Headings
Paragraph headings, titles or captions contained herein are inserted
as a matter of convenience and for reference only, and in no way
define, limit, extend, or otherwise describe the scope of this
Agreement nor the intent of any provision thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and to
be effective as of the Effective Date set forth on the first page hereof.
CONSULTANT: AMNIS SYSTEMS, INC:
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------- ----------------------------------
Signature Signature
Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx
------------------------------- ----------------------------------
Name (please print) Name (please print)
11/1/01 11/1/01
------------------------------- ----------------------------------
Date Date
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