**Exhibit10.48**

 

**CONSULTANCYAGREEMENT**

 

 

This Agreement is made and entered into this **2nd** day **January 2002**, by and **among MFICCorporation**, a Delaware Corporation, together with its wholly ownedsubsidiary, Microfluidics Corporation, and its Morehouse-COWLES Division(hereinafter collectively referred to as “MFIC”) and **Vincent B. Cortina**, referredto hereafter as the “CONSULTANT”.

 

**WHEREAS**, MFIC desires to avail itself of theservices of CONSULTANT in connection with the marketing and sale of MFIC’spatented and proprietary “Dual Stream” hi-pressure mixer/reactorMicrofluidizer7 system  (the “ConsultingAssignment”), and

 

**WHEREAS**, CONSULTANT desires to furnish itsservices to MFIC and to assist in such marketing and sales activities.

 

**NOWTHEREFORE**, forand in consideration of the mutual promises and premises contained herein, MFICand the CONSULTANT agree as follows:

 

ARTICLE 1

TERM

This Agreement shall be for an initial period of six (6) months fromthe date of its execution but will automatically renew and extend for a periodof six (6) months unless earlier terminated by any either party at any time bythe provision in writing of notice of such party’s election to do so providedat least ten (10) business days prior to the effective date of such termination.

 

ARTICLE 2

DUTIES

The CONSULTANT shall, during the term of this Agreement, generallyrender his consulting services to MFIC relating to the Consulting Assignmentand such further tasks or duties as MFIC and CONSULTANT shall agree upon fromtime to time (the “Services”).

 

ARTICLE 3

CONTROL AND STATUS

(a)  The CONSULTANT shall havethe exclusive right to establish his own working hours, days of work andsite(s) where work is performed.  TheCONSULTANT is deemed to be an independent contractor for all purposes,including but not limited to payroll withholdings, Workman’s CompensationInsurance, health, accident and disability insurance, and agency and authorityto act on behalf of MFIC.

 

(b)  CONSULTANT shall only berequired to devote such time and energies to the Services rendered to MFIC ashe shall, after consultation with MFIC, deem reasonably necessary to accomplishthe Consulting Assignment and tasks undertaken.

 

 

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ARTICLE 4

REIMBURSEMENT FOREXPENSES

CONSULTANT will be reimbursed for certain of his expenses incurred inrendering of the Services hereunder as follows:

 

A.  During theterm of this Agreement, the CONSULTANT shall, only with prior approval, beallowed reimbursement of actual out-of-pocket expenses incurred in connectionwith its activities hereunder, and shall be reimbursed on a current basis (net30 days from the presentation of original vouchers, receipts or billing forsame).

 

B. Notwithstanding the foregoing and the provisions of Article 5hereinafter, CONSULTANT shall not be entitled to bill for or seek reimbursementfor travel time from CONSULTANT’s home or place of business to and from MFIC.

 

ARTICLE 5

COMPENSATION

MFIC shall pay to the CONSULTANT for the Services rendered hereunder ata daily rate of Two Hundred Fifty Dollars ($250.00) payment to be deferreduntil a mutually agreed upon date in 2003. The maximum aggregate compensationpayable hereunder is Twenty Five Thousand Dollars ($25,000.)

 

ARTICLE 6

CONFIDENTIAL MATTERS

The CONSULTANT may receive disclosure of certain of MFIC’s proprietary,confidential and trade secret information from time to time during the term ofthis consultancy.  All such confidentialinformation is hereinafter referred to as the “Information”.  Finally, CONSULTANT may become aware of orreceive directly confidential information of customers of MFIC or the identityof such customers.

 

A.  CONFIDENTIALITY AGREEMENT

As a condition precedent to the execution of this Agreement by MFIC theCONSULTANT and MFIC have entered into a Confidentiality and Non-DisclosureAgreement of even date herewith  (the“Confidentiality Agreement”) attached hereto as **EXHIBIT A** which agreement ishereby incorporated by reference and which makes definitive provision for theparties’ use, protection and handling of certain confidential information as isdefined therein (the “Information”).

 

B.  USE OF CONFIDENTIALINFORMATION: The Information disclosed to CONSULTANT by MFIC or itscustomers shall be used by CONSULTANT solely in furtherance of his rendering ofthe Services hereunder and no other use of the Information is contemplated orpermitted hereunder.

 

C.  RESTRICTED ACCESS TOINFORMATION: Only CONSULTANT shall have access to the Information, and inthe event that CONSULTANT shall, for the purposes of effectuating the Serviceshereunder, desire to disclose the Information to any other party thenCONSULTANT must, in advance of making any disclosure, obtain written approvalfrom MFIC allowing such third party access to Information (the acceptability ofsuch third party to be in MFIC’s sole judgement and discretion).  Such approved third party must, prior toreceiving any disclosure, execute an agreement with MFIC that is in form andsubstance similar to the Confidentiality Agreement.

 

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ARTICLE  7

REPRESENTATIONS,WARRANTIES AND COVENANTS

The CONSULTANT warrants, represents and covenants as follows:

 

(a) he has the full rightand capacity to enter into this Agreement and to perform all of its obligationshereunder, and neither this Agreement nor the performance of any of itsobligations hereunder are in violation of any other agreement or instrument towhich he is a party or by which he may be bound.

 

(b) he shall notwillfully or recklessly make any proprietary claims or use any technology orinvention that would infringe on the patent, copyright or other proprietaryintellectual property rights of any third party, without first obtainingwritten permission or license from such party.

 

 (c) he will not seek any claim of ownershipor inventorship of, intellectual property right in, or license to any equipmentmodification, improvement, or process relating in any way to theMicrofluidizer7 materials processing equipment or any component thereof.

 

ARTICLE  9

TERMINATION:  BREACH

Notwithstanding the above, either party may terminatethis Agreement upon provision to the other of fourteen (14) days writtennotice, or upon the occurrence of any of the following:

(a)  CONSULTANT’s breach of any provision of theConfidentiality Agreement;(b)  breach of any warranty,representation or covenant by the CONSULTANT;(c)  the bankruptcy or insolvency of theCONSULTANT;(d) failure by either party to perform any material obligation hereunder.

 

ARTICLE  10

ASSIGNMENT

The CONSULTANT may not assign either this Agreement, which is apersonal services agreement, or his rights and/or obligations hereunder (exceptfor an assignment to MFIC) without the prior written consent of MFIC.

 

ARTICLE 11

NOTICE

Any notice which by any provision of this Agreement is required orprovided to be given shall be deemed to have been sufficiently given or servedfor all purposes if sent by the United Stated Postal Service, postage prepaid,certified mail with return receipt or by Federal Express or other privateexpedited carrier or delivery service with signature required with all chargesprepaid to the parties at their respective addresses below:

 
| If to MFIC to:       | Robert P. Bruno,  President & COO |
|----------------------|---------------------------------------|
|                 | MFIC Corporation                      |
|                 | 30 Ossipee Road                       |
|                 | Newton, MA 02464-9101                 |
|                 |                                  |
| If to CONSULTANT to: | Vincent B. Cortina                    |
|                 | 83 Thornberry Road                    |
|                 | Winchester, MA 01890                  |

 

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ARTICLE  12

DEFINITIVEAGREEMENT:  AMENDMENT

This Agreement and any schedule hereto, together with theConfidentiality Agreement and the Non-Competition Agreement, constitute theentire agreement between the parties relating to the subject matter hereof,supersedes any previous written or oral understandings or agreements and mayonly be amended in writing by the parties.

 

ARTICLE 13

RIGHTS AND REMEDIES

The parties agree that in the event a breach or threatened breach ofthis Agreement, MFIC’s  availabledamages and remedies at law would be inadequate in that irreparable injurymight be sustained by MFIC and, accordingly, MFIC shall have the right toobtain temporary and/or permanent injunctive relief or its equivalent underdomestic or foreign law against CONSULTANT and his agents to prevent theviolation of an affirmative or negative covenant as well as all other remediesthat may be available to MFIC.  Alllegal and equitable rights, remedies and damages available to MFIC shall beconsidered cumulative and the use or choice of a particular remedy, damage orrelief shall not preclude MFIC’s further exercise of other rights, remedies anddamages.  Damages and relief shallspecifically include an equitable accounting of all earnings, profits and otherbenefits arising from a breach or violation including lost income potential andlost business opportunity.  No delay oromission in exercising any rights hereunder shall operate as a waiver of thator any other right; a waiver or consent given by MFIC on a certain occasion iseffective only in that instance and shall not constitute or be construed as abar to, or a waiver of any right on any other occasion, unless otherwise agreedto by MFIC.

 

ARTICLE  14

GOVERNING LAW:CONSTRUCTION: JURISDICTION

This Agreement shall be governed by and construed under the laws of theCommonwealth of Massachusetts, U.S.A. as an instrument under seal withoutregard to its internal conflict of law provision.  The parties hereby consent to the jurisdiction of the courts ofthe Commonwealth of Massachusetts or such other jurisdiction as MFIC may findmore convenient or effective for the prosecution of any action hereunder.

 

ARTICLE 18

SEVERABILITY

The parties agree that the provisions of this Agreement areseverable.  If any provision hereofshall be declared to be invalid or unenforceable for any reason, suchunenforceability shall not affect the enforceability of the remainingprovisions of the Agreement, and such provision shall be reformed and construedto the extent permitted by law so that the remainder is valid and enforceable.

 

ARTICLE 19

SURVIVAL

A termination hereunder shall only serve to stop the transfer of  Information and such termination shall notalter or affect CONSULTANT’s obligations under Articles 6 or 7 of  this Agreement or the provisions of theConfidentiality Agreement or the Non-Competition Agreement whether arisingprior to or after termination, which obligations shall specifically survivetermination and continue in full force and effect.

 

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ARTICLE  20

BINDING NATURE OFOBLIGATIONS

The obligations of CONSULTANT under this Agreement shall be binding respectivelyupon any affiliate, assignee, or transferee of CONSULTANT.

 

ARTICLE  21

COUNTERPARTS

This Agreement may be executed in two or more counterparts, eachof  which shall be deemed an original,but all of which together shall constitute one and the same instrument.

 

 

 

**INWITNESS WHEREOF**,the CONSULTANT and MFIC have each caused this Agreement to be executed as asealed instrument, and to be delivered one to another as of the day, month andyear first written above.

 

 
|   |                                  |
|--------|---------------------------------------|
|   | **Vincent B. Cortina**                |
|   |                                  |
|   |                                  |
|   |                                  |
|   | **MFIC Corporation**                  |
|   |                                  |
| By:    |                                  |
|   | Robert P. Bruno,  President & COO |

 

 

 

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**EXHIBIT  A**

 

**CONFIDENTIALITY & NON-DISCLOSURE AGREEMENT**

 

This will affirm the agreement between **MFIC Corporation**, a Delawarecorporation together with its subsidiary, Microfluidics Corporation, and itsMorehouse-COWLES Division (collectively referred to hereinafter as “MFIC”) and **Vincent B.Cortina**, whose address is 83 Thornberry Road, Winchester,Massachusetts 01890 (hereinafter referred to as the “CONSULTANT”), with respectto information which MFIC or its customers may furnish to the CONSULTANT forconsideration, evaluation and assistance in conjunction with consultingServices to be provided to MFIC under a Consultancy  Agreement of even date herewith which is hereby incorporated byreference, including marketing, sales, financial and related information,inventions, or discoveries covered by any patent, any materials, devices,processes, trade secrets, schematics, drawings, processes, methods andmaterials of manufacture, timing of mixing and reaction, know-how or otherproprietary information which is disclosed (the “Information”)

 

All Information which submitted to CONSULTANT is submitted inconfidence and CONSULTANT agrees that it will not (without the prior writtenconsent of the MFIC disclosing such Information) for a period of Five (5) yearsfrom the date hereof disclose to any third party any of the Information.  All Information submitted or provided inwriting shall be marked “Confidential” or if communicated or disclosed verballywill be designated as confidential at the time of its communication confirmedin writing as “Confidential” within thirty (30) days of its verbaldisclosure.  The provisions of thisparagraph shall not apply to any information:

 

1.             which is now or which becomes publicknowledge or a part of any public document or record through no fault of theCONSULTANT;

 

2.             which is provided to the CONSULTANTwithout restriction by a independent third party, who is not legally restrictedby agreement with MFIC or the disclosing party or otherwise, or;

 

3.                                     which the CONSULTANT can show by itswritten records was already in its possession at the time of receipt of theinformation from MFIC or the disclosing party.

 

Further, CONSULTANT agrees to be bound by the terms of anyconfidentiality agreements in force between MFIC and such of its customers asCONSULTANT may become exposed to or receive such customers confidentialinformation while rendering the services hereunder.

 

Notwithstanding the above provisions and except as provided for in theConsultancy Agreement between the parties of even date herewith, nothing hereincontained shall be construed as granting to CONSULTANT any license, or otherrights in or with respect to any invention, or discovery (relating to theInformation) covered by any patent heretofore or hereafter issued).

 

CONSULTANT shall not, without MFIC’s or its customers’ permission,attempt to analyze, disassemble or duplicate proprietary items received from theother MFIC or its customers but specifically including product samples and anyinteraction chamber or auxiliary processing module of any Microfluidizer7device.

 

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The parties agree that in the event of CONSULTANT’s breach of thisAgreement, MFIC’s available damages and remedies at law would be inadequateand, accordingly, MFIC shall have the right to obtain temporary and/orpermanent injunctive relief or its equivalent under domestic or foreign law againstthe CONSULTANT or to prevent the unauthorized use or disclosure of anyinformation as well as all other remedies that may be available to theMFIC.  All legal and equitable rights,remedies and damages available to MFIC shall be considered cumulative and theuse or choice of a particular remedy, damage or relief shall not precludeMFIC’s further exercise of other rights, remedies and damages.

 

This Agreement shall be governed by and construed under the laws of theCommonwealth of Massachusetts without regard to its internal conflicts of lawprovisions.  The parties hereby consentto the jurisdiction of the courts of the Commonwealth of Massachusetts or suchother jurisdiction as MFIC may find more convenient or effective for theprosecution of any action hereunder.

 

This Agreement together with Sections 6 & 7 of the ConsultancyAgreement above represents the entire agreement between the parties relating tothe subject matter hereof and supersedes any previous understanding oragreement.

 

The parties agree that the provisions of this Agreement areseverable.  If any provision hereofshall be declared to be invalid or unenforceable for any reason, suchunenforceability shall not effect the enforceability of the remainingprovisions of the Agreement, and such provision shall be reformed and construedto the extent permitted by law so that the remainder is valid and enforceable.

 

 

Signed as a sealed instrument this **2nd** day of **January 2002**.

 

 
|   |                                  |
|--------|---------------------------------------|
|   | **Vincent B. Cortina**                |
|   |                                  |
|   |                                  |
|   |                                  |
|   | **MFIC Corporation**                  |
|   |                                  |
| By:    |                                  |
|   | Robert P. Bruno,  President & COO |

 

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