CONSULTING AGREEMENT
This agreement is entered into between MarketByte, LLC, a California
Limited Liability Company (hereafter known as MBLLC) and AMNIS SYSTEMS INC., a
Delaware Corporation (hereafter known as AMNM), with reference to the following
facts.
AMNM has expressed a desire to enter into this agreement with MBLLC to
provide Internet Public Relations Services for AMNM. MBLLC is in the business of
providing such services and desires to enter into an agreement with AMNM to
provide these services for AMNM, a publicly traded company. This Agreement is
for the purpose of defining the services to be provided and the rights and
responsibilities of both parties.
I. SERVICES PROVIDED BY MBLLC
1. MBLLC agrees to prepare a detailed profile report on AMNM following
certain guidelines that have already been established by MBLLC. The
report shall be released during the month of May or June 2003, final
date to be established by both parties.
2. MBLLC agrees to expose all future editions to all the members of its
proprietary OTC Journal database of over 1.2 million members.
3. MBLLC will continue to release to its subscribers on the selected
Newsletter all substantive information (i.e. Press Releases, Annual
Reports, Analysts Reports, etc.), which AMNM has formally and
officially released to the general public, for an indefinite period
at the discretion of MBLLC.
4. MBLLC reserves the right to share any views or opinions of its
choosing with its proprietary database regarding the performance of
AMNIS SYSTEMS INC stock. The management of AMNIS SYSTEMS INC shall
have no editorial control over the content published on AMNIS
SYSTEMS INC within the context of the OTC Journal, and as such both
parties recognize that any opinions expressed in the OTC Journal are
solely those of the editors.
II. RESPONSIBILITIES OF AMNM
1. AMNM agrees to assist MBLLC, as requested, in the preparation of
the corporate profile report on said Company.
2. AMNM will, if requested, provide or arrange to be provided to
MBLLC or its designee, such accounting information as may be necessary to
complete the corporate "due diligence" necessary to compile an accurate
and detailed profile report on the companies.
3. AMNM agrees to provide MBLLC with certain business and other
material information about AMNM, its products, services, contracts,
pending litigation, patents, trademarks and other such business matters
which MBLLC may request and which MBLLC considers to be important for the
completion of this contract.
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4. AMNM agrees, during the term of this agreement, to notify MBLLC
of any changes in the status or nature of its business, any pending
litigation, or any other developments that may require further disclosure.
III. COMPENSATION
1. MBLLC shall receive a fee of twenty five thousand US dollars
($25,000), payable upon the signing of this agreement.
2. MBLLC shall receive a fee of two million (2,000,000) newly issued
shares of common stock in AMNIS SYSTEMS INC. The aforementioned shares
shall have piggyback registration rights on any appropriate registration
statement filed by the company.
IV. REPRESENTATIONS BY MBLLC
MBLLC represents, warrants, and covenants the following:
1. MBLLC is a Company duly organized and existing under the laws of
the State of California and is in good standing with the jurisdiction of
its incorporation.
2. MBLLC will disclose to AMNM any and all material facts and
circumstances, which may affect its ability to perform it's undertaking
herein.
3. MBLLC will cooperate in a prompt and professional manner with
AMNM or its agents in the performance of this Agreement.
V. REPRESENTATIONS OF AMNM
AMNM represents, warrants and covenants the following:
1. AMNM will cooperate fully with MBLLC in executing the
responsibilities required under this Agreement so that MBLLC may fulfill
its responsibilities in a timely manner.
2. AMNM will not circumvent this Agreement either directly or
indirectly nor will it interfere with, impair, or delay MBLLC in
performing work described in this Agreement. AMNM will not cause MBLLC to
perform work not described in this Agreement.
3. AMNM and each of its subsidiaries is a corporation duly organized
and existing under the laws of its state of incorporation and is in good
standing with the jurisdiction of its incorporation in each state where it
is required to be qualified to do business.
4. AMNM's articles of incorporation and by-law's delivered pursuant
to this Agreement are true, and complete copies of it have been duly
adopted.
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5. AMNM will cooperate in a prompt and professional manner with
MBLLC, its attorneys, accountants and agents during the performance of the
obligations due under this Agreement.
6. All financial information from AMNM will be provided to MBLLC in
a timely and complete manner and all other information, which AMNM has
previously provided to MBLLC concerning AMNM, is accurate and complete in
every material respect. If it is later determined that such is not the
case, it shall be considered a basis for the termination of this
Agreement.
7. AMNM does hereby state that all information supplied to MBLLC
during the course of this Agreement shall be true and accurate to the best
of AMNM's knowledge. AMNM agrees to hold MBLLC harmless for the accuracy
of any information disclosed under this Agreement where the information
was provided by AMNM to MBLCC.
VI. CONFIDENTIALITY
1. MBLLC agrees that all information received from AMNM shall be
treated as confidential information and MBLLC shall not share such
information with any other person or entity, except as required by MBLLC
to fulfill this Agreement, without the express written consent of AMNM,
unless such disclosure will not cause damages to AMNM or is already in the
public domain. Furthermore, MBLLC shall not take any action with the
intention of profiting from "insider information".
VII. NOTICES
Any notices from either party to the other shall be deemed received
on the date such notice is personally delivered. Any notice sent by fax
transmission shall be deemed received by the other party on the day it has
been transmitted. Any notice sent by mail by either party to the other
shall be deemed received on the third business day after it has been
deposited at a United States or Canadian post office. For purposes of
delivering or sending notice to the parties under this Agreement such
notices shall be delivered or sent as follows:
MarketByte LLC
0000 Xxx Xxx Xxxxxxx Xx #000
Xxx Xxxxx, XX 00000
AMNIS SYSTEMS INC
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
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VIII. ENTIRE AGREEMENT
Neither party has made representations to the other, which are not
specifically set forth in this Agreement. There are no oral or other
agreements between the parties that have been entered into prior or
contemporaneously with the formation of this Agreement. All oral promises,
agreements, representations, statements and warranties hereinafter
asserted by one party against the other, shall be deemed to have been
waived by such party asserting that they were made and this Agreement
shall supersede all prior negotiations, statements, representations,
warranties and agreements made or entered into between the parties to this
Agreement.
IX. NO ASSIGNMENT
Neither party may assign any benefit due or delegate performance
under this Agreement without the express written consent of the other
party.
X. CONSTRUCTION
The laws of the State of California shall govern this Agreement.
XI. ATTORNEYS FEES
In any action concerning the enforcement, breach, or interpretation
of this Agreement, the prevailing party shall be entitled to recover its
costs of suit and reasonable attorney's fees from the other party, in
addition to any other relief granted by the court.
XII. WAIVER
The waiver of any provision of this Agreement by either party shall
not be deemed to be a continuing waiver or a waiver of any other provision
of this Agreement by either party.
XIII. SEVERABILITY
If any provision of this Agreement or any subsequent modifications
hereof are found to be unenforceable by a court of competent jurisdiction,
the remaining provisions shall continue to remain in full force and
effect.
XIV. AUTHORITY TO ENTER INTO AGREEMENT
The individuals signing this Agreement below represent to each other
that they have the authority to bind their respective corporations to the
terms and conditions of this Agreement. The individuals shall not, however
have personal liability by executing this Agreement and sign this
Agreement only in their representative capacities as authorized officers
of the AMNM and MBLLC respectively.
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XV. INDEMNIFICATION
MBLLC agrees to indemnify AMNM from any liability or claim arising out of
any act or omission on the part of MBLLC that would be in violation of any
securities laws and regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement on this 19th day of May 2003.
AMNIS SYSTEMS INC MARKETBYTE, LLC
----------------------------------- ----------------------------------------
Xxxxx Xxx Xxxxxxxx Xxxxxxxx X. Xxxx
CEO, Amnis Systems, Inc. Authorized Signing Member
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