EXHIBIT 10.4
CONSULTING AGREEMENT II
This Consulting Agreement II (the "Agreement") is made and entered into on
September lst, 1999 ("Effective Date") by and between IVAX Diagnostics, Inc., a
Florida corporation having its principal place of business located at 0000
Xxxxxxxx Xxxx., Xxxxx, Xxxxxxx 00000 (the "Company") and Xxxxx Xxxxx, residing
at Xxx Xxxxxxxxx 000, 00000 Xxxx, Xxxxx (the "Consultant").
Recitals
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WHEREAS, the Company is engaged in the business of researching, developing,
manufacturing, marketing and selling medical diagnostic products;
WHEREAS, Consultant has researched, investigated and otherwise developed an
innovative line of automated instrumentation currently known as MAGO A and MAGO
PLUS (collectively, the "MAGO"). Consultant is an expert in the field of medical
diagnostic equipment and is conducting research and developing new instruments
in the area of medical diagnostic field;
WHEREAS, the Company and Consultant have previously entered into a
Consulting Agreement dated December 12, 1994 ("Original Consulting Agreement");
WHEREAS, the Company and Consultant are now entering into this Consulting
Agreement II, for several purposes, including to terminate and supercede the
Original Consulting Agreement;
WHEREAS, the Company and Consultant have also previously entered into an
Assignment and Royalty Agreement dated December 12, 1994, as amended ("Royalty
Agreement");
WHEREAS, the Company and Consultant have previously entered in an Amendment
to Assignment and Royalty Agreement dated February 1, 1997, ("Amendment to
Assignment and Royalty Agreement");
WHEREAS, the Company and Consultant have simultaneously with the execution
hereof entered into a Second Amendment to Assignment and Royalty Agreement with
respect to the MAGO (Second Amendment to Assignment and Royalty Agreement");
WHEREAS, the Royalty Agreement, the Amendment to Assignment and Royalty
Agreement and Second Amendment to Assignment and Royalty Agreement are
hereinafter collectively referred to as "Royalty Agreement";
WHEREAS, the Company desires to engage the Consultant and the Consultant
desires to provide consulting services to the Company and its affiliates with
respect to the research, development and manufacturing of instruments and to
provide hardware and software support for the MAGO, and Consultant wishes to
perform such services, in accordance with the terms and conditions hereinafter
set forth; and
WHEREAS, in addition to the Company, the Consultant is consulting and
assisting other companies, too;
NOW, THREFORE, for and in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound agree as follows:
1. Recitals. The foregoing recitals are true and correct and incorporated herein
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by reference.
2. Original Consulting Agreement. The Company and Consultant acknowledge and
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agree that as of the Effective Date, the Original Consulting Agreement is
terminated and is superceded by Consulting Agreement II. The parties agree that
all terms, conditions and obligations under the Original Consulting Agreement
have been satisfied and there are no outstanding funds due. Provisions
3,5,6,7,8.4,8.5,9,12,13,14 and 20 shall survive the termination of the Original
Consulting Agreement. The Consultant hereby releases the Company from any
losses, claims, damages, fines, actions and suits in connection with the
Original Consulting Agreement.
3. Engagement. Upon the terms and conditions set forth herein, the Company
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hereby engages the Consultant as consultant to the Company and its affiliates in
connection with the research, development and manufacturing of new instruments
and software in the medical diagnostic field (hereinafter "Instruments").
Consultant hereby accepts such engagement, upon the terms and subject to the
conditions set forth in this Agreement and agrees to perform such services as
are more fully described herein.
4. Services. In fulfillment of his engagement pursuant to this Agreement,
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Consultant has consulted with and shall continue to consult with and assist the
Company and its affiliates requested with respect to all stages of the
formulation, research, development and manufacturing of the Instruments.
Consultant shall consult with and assist the Company and its affiliates with
hardware and software support for the MAGO. Consultant shall also provide such
further services as the Company shall from time to time determine consistent
with, the provisions hereof. In providing services to the Company, the
Consultant shall use his best efforts, skills and abilities to promote the
interests of the Company and to diligently and competently perform his duties
under this Agreement. Consultant shall provide such services to the Company's
affiliate, Delta
Biologicals, located in Pomezia - Roma. Consultant shall keep the president of
Delta Biologicals updated on a regular basis as to the status of the services he
is providing.
5. Representation and Warranties. The Consultant hereby represents and warrants
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that: (a) Consultant is free to perform services for the Company and its
affiliates and is not a party to, or bound by, any agreement or commitment, or
subject to any restriction, including but not limited to agreements related to
existing or previous employment containing confidentiality or noncompete
covenants, which in the now or in the future could interfere with the full
performance by the Consultant of his or her services under this Agreement, the
exercise of his best efforts in the performance of his duties or may have a
possibility of adversely affecting the business of the Company; (b) none of the
data or information to be provided to Company by Consultant will violate any
copyright or other intellectual property right of any third party.
6. Compensation. During the term of this Agreement, as compensation for the
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performance of services under this Agreement and the Consultant's observance and
performance of all of the provisions of this Agreement shall be as follows,
(a) the Company shall pay to the Consultant, and the Consultant shall accept
from the Company, cash compensation at the rate of $45,000 per year (the "Base
Compensation") payable at the time the parties jointly agree and in
consideration of the work performed during that period, and
(b) the Company shall grant the Consultant, effective as of the date of this
Agreement, nonqualified stock options to purchase 40,000 shares of the Company's
common stock, par value $1.00 per share, pursuant to and subject to the terms
and conditions of such stock option plans as set forth on Exhibit "A" attached
hereto and made a part hereof. Such options shall have a term of seven years and
shall become exercisable with respect to of the shares subject to the
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options on each of the first anniversary dates of this Agreement.
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In order to induce the Company to grant stock options to Consultant, Consultant
hereby represents to the Company that: (a) Consultant has adequate means of
providing for his current needs and personal contingencies, and has no need now
or in the foreseeable future to sell the Company's common stock which may be
acquired upon the exercise of the stock options and that he has the financial
liquidity to sustain a complete loss of his investment; (b) Consultant, or
Consultant and his advisors together, possess such knowledge and experience in
financial and business matters that Consultant is capable of evaluating the
merits and risks of an investment in the Company; (c) Consultant is aware that
the stock options received hereunder are non-transferable; (d) Consultant is
aware that an investment in the Company's common stock is speculative in nature
and involves a high degree of risk; (e) Consultant understands that no federal
or' state agency has passed upon or made any recommendation or endorsement of an
investment in the Company's common stock; and (f) prior to executing this
Agreement, Consultant has consulted with his tax advisors as to the tax
treatment of the stock options, if
applicable, and any elections available to him under the Internal Revenue Code
of 1954, as amended.
7. Noncompetition. The Consultant acknowledges that (1) as a result of
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Consultant's engagement under this Agreement, the Consultant will obtain
knowledge of, and access to, Confidential Information, (2) the services to be
provided under this Agreement are of a special character which have a unique
value to the Company, the loss of which cannot be adequately compensated by
damages, and (3) the restrictions contained in thus Section are reasonably
necessary to protect the interests of the Company and are not unreasonably
restrictive of any personal right. In view of the unique value to the Company of
the services of Consultant, Consultant covenants and agrees that so long as he
performs services for the Company or its affiliates (whether or not such work
shall be pursuant to this Agreement, the Royalty Agreement, or another written
agreement) and for so long as he is paid royalties by the Company or its
affiliates under the Royalty Agreement and for a period of three years
thereafter, Consultant shall not, anywhere in the world, directly or indirectly,
own, manage, operate, control, finance, or be connected with or have any
interest in, or otherwise take part as a stockholder, director, officer,
employee, agent, consultant, independent contractor or partner in, or otherwise
provide services to, any person, firm, corporation or other entity not
affiliated with the Company which is developing or sells a product or engaged in
any business competitive with the Company or its affiliates which is competitive
with the MAGO or any Instrument upon which Consultant has rendered services to
the Company or its affiliates under this or any other agreement or which
otherwise competes with the Company or its affiliates products.
The ownership or control of up to five percent of the outstanding voting
securities or securities of any class of a company with a class of securities
registered under the Securities Exchange Act of 1934, as amended, shall not be
deemed to be a violation of the provisions of this Section 7.
8. Confidentiality.
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(a) Confidential Information. The Consultant acknowledges that (1) as
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a result of Consultant's engagement under this Agreement, the Consultant will
obtain knowledge of, and access to, proprietary and confidential information of
the Company and its Affiliates, including, without limitation,(i) inventions,
discoveries, trade secrets, know-how, technical information, systems, processes,
methods, designs, manufacturing practices, specifications, models, formulae,
prototypes, samples, laboratory and clinical testing results; (ii) financial and
marketing information, business plans, financial condition or methods of
operation of the Company and its affiliates, including any of its systems,
processes, methods, products, services, discoveries, designs, inventions and
manufacturing practices; (iii) marketing and sales data and techniques of the
Company and its affiliates including the names and addresses of customers and
suppliers, the source of leads, methods of obtaining new business and methods of
product pricing; and (iv) any and all data, reports, records, diagrams, plans,
drawings, compounds, notes, memorandum, projections, writings, recordings,
representatives or reproductions in any form which Consultant may receive or
have access to related to the Instruments as well as research and development
projects, products or business of the Company and its affiliates, (collectively,
the "Confidential Information"), (2) such information, even though it may be
contributed, developed or acquired by the Consultant, constitutes valuable,
special and unique assets of the Company developed at significant expense which
are the exclusive property of the Company, (3) the restrictions on disclosure
and use of Confidential Information set forth below are reasonable and necessary
to protect the Company and its Affiliates and is not unreasonably restrictive of
any personal rights, and (4) the Company would not enter into this Agreement
without the assurance that all Confidential Information will be used for the
exclusive benefit of the Company. Accordingly, the Consultant shall not, at any
time, either during or subsequent to the term of this Agreement (A) use the
Confidential Information, except in the performance of services under this
Agreement, and (P) disclose to any Person, any of the Confidential Information
without the prior written consent of the Company, except to responsible officers
and employees of the Company and its Affiliates and other responsible persons
who are in a contractual or fiduciary relationship with the Company and who have
a need for such information for purposes in the best interests of the Company;
provided that the foregoing restrictions on use and disclosure shall not apply
to any Confidential Information which: (i) at the time of disclosure can be
demonstrated to be already known to Consultant as evidenced by written documents
in the Consultant's possession, unless such Confidential Information is the
subject of another confidentiality agreement with or other obligation of secrecy
to the Company or another Person; (ii) at the time of disclosure or subsequent
thereto is generally available to the public other than by an act or omission
on the part of Consultant; (iii) is acquired from or made available by a third
Person that is not bound by a confidentiality agreement with or other obligation
of secrecy to the Company or another Person; or (iv) is required to be disclosed
pursuant to an order of a court or governmental authority, provided that the
Consultant gives the Company prompt written notice of any such requirement so
that the Company may seek a protective order or other appropriate remedy and
Consultant cooperates with the Company is obtaining such an order or other
appropriate remedy.
Consultant acknowledges that this restriction on disclosure of Confidential
Information is reasonable and necessary to protect the goodwill of the Company
and its affiliates and is not unreasonably restrictive of any personal rights.
(b) Return of Confidential Information. Upon the termination of
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Consultant's engagement by the Company, the Consultant shall promptly deliver to
the Company all drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business, including
without limitation any materials incorporating Confidential Information, which
are in the Consultant's possession or control.
9. New Discoveries. (a). Any and all inventions, discoveries and technical data
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(whether patentable or not), or the use or preparation thereof (i) resulting
from or arising in connection with Consultant's services for the Company or its
affiliates hereunder, and (ii) conceived, reduced to practice, or advanced by
Consultant during the term of this Agreement, and which relate to the Ins urnens
or products upon which Consultant has rendered services to the Company or its
affiliates hereunder or under the Royalty Agreement or any research or other
agreement, whether performed by or on behalf of Consultant or the Company or the
affiliates, shall be the sole and exclusive property of the Company. Consultant
shall promptly disclose to the Company any and all of such inventions,
discoveries and technical data becoming known to Consultant as a result of or
related to the performance of his duties hereunder and shall furnish to the
Company in writing all relevant information with respect thereto. At the request
of the Company, Consultant shall (i) execute, without charge to the Company,
irrevocable assignments to the Company or its nominees, of Consultant's entire
right, title and interest in and to such inventions, discoveries and technical
data throughout the world, including, without limitation, all patent
applications and patents relating thereto and all right to file, obtain and
maintain such applications and patents, (ii) execute, without charge to the
Company, any and all other documents necessary or desirable to permit the
Company to file and maintain such patent applications and patents, and (iii)
assist the Company in securing, defending and enforcing such rights. Consultant
hereby binds not only himself but also his heirs, executors, administrators and
legal representatives to execute all such documents and instruments and to do
all acts which may be necessary or rewired by the Company, in order to carry
into full force and effect the provisions of this section of the Agreement and
to perfect title to said inventions, discoveries and patents in the Company, its
successors and assigns. The provisions of this section shall survive the
expiration or earlier termination of this Agreement.
(b). Payments. In the event Consultant develops a new Instrument resulting
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from or arising in connection with Consultant's services for the Company or its
affiliates, in consideration of the sale, transfer and assignment to the Company
or its nominee, of Consultant's rights to the new Instrument, Company agrees to
pay Consultant $300 for each new Instrument sold or placed after the first unit
is sold or placed at a customer's site. Such payments will continue for a period
of three years or until the termination or expiration of this Agreement,
whichever occurs first. The $300 payment may be increased to $500 if (a) the new
Instrument is of equal or superior specifications with respect to the MAGO
System currently being manufactured; (b) Less time versus projected time is
required for the manufacturing of the first three prototypes; and (c) Lower cost
versus projected cost is achieved for all components.
(c). Market Sectors. In the event Consultant develops a new Instrument
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resulting from or arising in connection with Consultant's services for the
Company or its affiliates, which is designated for use in market sectors that
are different to that of the MAGO or other comparable systems, the Company
agrees to discuss with the
Consultant, in good faith, bonus payment to Consultant on a mutually agreeable
amount.
10. Remedies. The restrictions set forth in Sections 7 and 8 are considered by
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the parties to be reasonable for the purposes of protecting the value of the
business of the Company and its affiliates. The Consultant acknowledges that
compliance by Consultant with the restrictions set forth in Sections 7 and 8
will not prevent Consultant from earning a livelihood. The Consultant
acknowledges that the Company would be irreparably harmed and that monetary
damages would not provide an adequate remedy in the event of a breach of the
provisions of Sections 7 or 8. Accordingly, the Consultant agrees that, in
addition to any other remedies available to the Company, the Company shall be
entitled to injunctive and other equitable relief to secure the enforcement of
these provisions, and shall be entitled to receive reimbursement from the
Consultant for all attorneys' fees and expenses incurred by the Company in
enforcing these provisions, should the Company prevail. If the Consultant
breaches the covenant set forth in Section 8, the running of the noncompete
period described therein shall be tolled for so long as such breach continues.
It is the desire and intent of the parties that the provisions of Sections 7, 8
and 9 be enforced to the fullest extent permissible under the laws and public
policies of each jurisdiction in which enforcement is sought. If any provisions
of Sections 7, 8 or 9 relating to the time period, scope of activities or
geographic area of restrictions is declared by a court of competent jurisdiction
to exceed the maximum permissible time period, scope of activities or geographic
area, the maximum time period, scope of activities or geographic area, as the
case may be, shall be reduced to the maximum which such court deems enforceable.
If any provisions of Sections 7, 8 or 9 other than those described in the
preceding sentence are adjudicated to be invalid or unenforceable, the invalid
or unenforceable provisions shall be deemed amended (with respect only to the
jurisdiction in which such adjudication is made) in such manner as to render
them enforceable and to effectuate as nearly as possible the original intentions
and agreement of the parties.
11. Term and Termination.
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(a) Term. Subject to the earlier termination of this Agreement as
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provided herein, the term of this Agreement shall commence as of this Agreement
and shall continue for a period of three (3) years from that date.
(b) Events of Termination. This Agreement may be terminated (i) by the
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mutual consent of the parties in writing, (ii) by the Company upon Consultant's
death or permanent disability (as hereinafter defined), or for cause (as
hereinafter defined), which termination shall except as otherwise provided
herein, be effective immediately upon written notice from the Company, or (iii)
by Consultant, in the event the Company fails to pay Consultant the consulting
fee when due and payable as set forth in Section 6 hereof, which nonpayment
continues for more than thirty (30) days after receiving written notice of such
nonpayment form Consultant, such termination to be effective upon written notice
to the Company after failure to cure or remedy such
default. For the purposes of this Agreement, the term "permanent disability"
shall mean the Consultant's inability to perform his duties under this Agreement
for a period of 60 consecutive days, whether or not consecutive, in any twelve
month period (the "Disability Period"), due to illness, accident or any other
physical or mental incapacity, as reasonably determined in good faith by the
Company.
(c) Cause. For the purposes hereof, "cause" shall mean: (i) breach by
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the Consultant of any material provision of this Agreement and failure to cure
such breach within thirty (30) days after receiving written notice of such
breach from the Company, such termination to be effective upon written notice to
Consultant after failure to cure or remedy such breach; (ii) a willful refusal
without justification by Consultant to follow good faith, lawful and reasonable
directives of the Company consistent with the provisions hereof; (iii)
negligence or willful misconduct of Consultant in connection with the
performance of his duties under this Agreement; (iv) material neglect or
material inattention by Consultant of or to his duties hereunder; (v) fraud,
dishonesty, criminal conduct (as evidenced by the filing of any criminal action
against the Consultant) or embezzlement by the Consultant; (vi) Consultant's
misappropriation for personal use of assets or business opportunities of the
Company; or (vii) any act or omission to act by Consultant which is harmful to
the business interests, reputation or goodwill of the Company.
(d) Effect of Termination. In the event of any termination under this
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Section 11, the Company shall have no further obligation under this Agreement or
the Royalty Agreement, as amended, to make any payments to, or bestow any
benefits on, the Consultant from and after the date of the termination, other
than payments or benefits accrued and due and payable to her prior to the date
of the termination.
(e) Survive Termination. Notwithstanding anything to the contrary that
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may be contained herein, in the event of any termination or expiration of this
Agreement, the confidentiality provisions, the noncompete provision and the
remedies provision and any other provisions which by their terms are to be
performed or complied with subsequent to the expiration or other termination of
this Agreement shall survive and continue in full force and effect. The
termination of this Agreement for any reason shall be without prejudice to, and
shall not effect, the right of either party to recover from the other any and
all damages to which either may be entitled therefor, or any other rights of
either in connection therewith, and such rights of both shall survive such
termination.
12. Miscellaneous.
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(a) Entire Agreement. This Agreement sets forth the entire
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understanding of the parties and merges and supersedes any prior or
contemporaneous agreements, negotiations, understandings, representations,
statements, and writings between the parties pertaining to the subject matter
hereof. This Agreement may not be modified or terminated orally, and no
modification, termination or attempted waiver
of any of the provisions hereof shall be binding unless in writing and signed by
each of the parties hereto.
(b) Waiver. Failure of a party to enforce one or more of the
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provisions of this Agreement or to require at any time performance of any of the
obligations hereof shall not be construed to be a waiver of such provisions by
such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(c) Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the Company and its successors and assigns. The
obligations of Consultant are personal and may be performed only by him.
Accordingly, Consultant shall not assign any or all of his interest in this
Agreement with out the prior written consent of the Company, which consent may
be arbitrarily withheld.
(d) Additional Acts. The Consultant and the Company each agrees to
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execute, acknowledge and deliver and file, or cause to be executed, acknowledged
and delivered and filed, any and all further instruments, agreements or
documents as may be necessary or expedient in order to consummate the
transactions provided for in this Agreement and do any and all further acts and
things as may be necessary or expedient in order to carry out the purpose and
intent of this Agreement.
(e) Communications. All notices, requests, reports, demands and other
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communications (hereinafter collectively referred to as "correspondence")
required or permitted under this Agreement shall be in writing and shall be
deemed to have been given at the time personally delivered or when mailed in any
United States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the addresses set forth below, or to such other
address as any party may specify by notice to the other party; provided,
however, that any notice of change of addresg shall be effective only upon
receipt.
To the Company: IVAX Diagnostics, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attn: President
Facsimile:(000) 000-0000
With a copy to: IVAX Corporation
0000 Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
Facsimile:(000) 000-0000
To the Consultant: Xxxxx Xxxxx
Xxx Xxxxxxxxx 000
00000 Xxxx
Xxxxx
Facsimile:
All notice periods provided in this Agreement shall be deemed to begin running
(i) in the case of notice by letter sent by air mail, on the date of
registration of the letter; (ii) in the case of notice by facsimile, on the date
when the communication is sent; and (iii) in the case of any other method of
notice, on the date when the notice is actually received.
(f) Severability. The provisions of this Agreement are severable, and
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the invalidity of any provision shall not affect the validity of any other
provision. If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity and enforceability of the other
provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability. If any court
of competent jurisdiction determines that any provision of this Agreement or the
application thereof is unenforceable because of the duration or scope thereof,
the parties agree that said court in malting such determination may reduce the
duration and scope of such provision or application to the extent necessary to
make it enforceable, and that the Agreement in its reduced form shall be valid
and enforceable to the full extent permitted by law.
(g) Governing Law. This Agreement shall be construed and the legal
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relations between the parties determined in accordance with the laws of
lhe'State of Florida, U.S.A. The parties acknowledge that each has access to
counsel during the course of negotiation of this Agreement, and therefore, that
this Agreement shall be interpreted without regard to any presumption or rule
requiring construction against the party causing the Agreement to be drafted.
(h) Jurisdiction: Venue. Any suit, action or proceeding against any
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party with respect to this Agreement or any judgment entered by any court in
respect of this Agreement may be brought in the courts of the State of Florida
or in the United States District Court for the Southern District of Florida, and
the parties hereto accept the nonexclusive jurisdiction of those courts for the
purpose of any such suit, action or proceeding. In addition, the parties
irrevocably waive, to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement, or any judgment entered
by any court in respect hereof brought in Florida, and further irrevocably
waive
any claim that any suit, action or proceeding brought in Florida was brought in
an inconvenient forum.
(i) Independent Contractor. Notwithstanding any provision contained
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herein to the contrary, it is understood and agreed that Consultant is an
independent contractor and not an employee of the Company, and this Agreement
shall not be deemed to create any relationship of partnership, agency or
employment. Accordingly, Consultant shall have no right or authorization,
express or implied, to assume or create any obligation on behalf of the Company.
The parties intend that the relationship of the Consultant to the Company be
that of an independent contractor. Except as otherwise required by law, payments
to the Consultant shall be made free of withholding for federal, state and local
taxes. The Consultant shall be responsible for all federal, state and local
taxes relating to amounts received by him under this Agreement. Consultant
agrees to indemnify and hold the Company harmless from and against any and all
claims, costs, taxes, fines, penalties, expenses, attorneys' fees and court
costs arising from any claim, action, suit or other proceeding resulting from a
breach of this Section 11(i).
(j) Publication. Consultant agrees that he will not publish any
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manuscript or other written document based upon information or data resulting
from his performance of services hereunder for the Company, without the prior
written consent of the Company.
(k) Indemnification. Consultant hereby agrees to indemnify and hold
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harmless Company, its affiliates and its directors, officers, employees and
agents from, against and in respect of, the full amount of any and all
liabilities, damages, claims, deficiencies, fines, assessments, losses, taxes,
penalties, interest, costs and expenses, including, without limitation,
reasonable fees and disbursements of counsel, arising from, in connection with,
or incident to any breach or violation of any of the representations,
warranties, covenants or agreements of Consultant contained in this Agreement;
and (ii) any and all actions, suits, proceedings, demands, assessments or
judgments, costs and expenses incidental to any of the foregoing, The
representations and warranties of Consultant set forth in this Agreement and the
indemnification provisions hereof shall survive termination of this Agreement
and shall continue in effect for as long as Company shall sell Instruments.
(1) Captions. The captions of this Agreement are solely for the
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convenience of reference and shall not affect its interpretation.
(m) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be considered to be an original.
IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above.
IVAX DIAGNOSTICS, INC. CONSULTANT
By: /s/ Xxxxxxx X'Xxxx By: /s/ Xxxxx Xxxxx
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Xxxxxxx X'Xxxx, President Xxxxx Xxxxx
August 20/99
