EXHIBIT 4.1 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 Xxxxxx Xxxxx, 0000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxxxx,
XX 00000 ("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 assist the Company in general
corporate activities including but not limited to the following areas:
(a) Research various venues for product advertisement.
(b) Assist in the Company's marketing strategies.
(c) Research strategic partners.
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. Xxxxx Xxx Xxxxxxxx. The term of this Consulting Agreement began as of
the date of this Agreement, and shall terminate on October 31, 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 two million (2,000,000)
shares of the common stock of the Company at an exercise price of $0.05 per
share. The warrant expires on 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 the
Company. Notwithstanding any termination, the compensation, as outlined in
Section 4, shall be earned in full by the Consultant upon execution of this
agreement.
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 Los Angeles 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:
Xxxxxx Xxxxx AMNIS SYSTEMS INC.
______________________ By:______________________
Xxxxx Xxx Xxxxxxxx
Chief Executive Officer
