CONSULTANCY AGREEMENT









Exhibit

10.48




 




CONSULTANCY

AGREEMENT




 




 




This Agreement is made and entered into this 2nd day January 2002, by and among MFIC

Corporation, a Delaware Corporation, together with its wholly owned

subsidiary, Microfluidics Corporation, and its Morehouse-COWLES Division

(hereinafter collectively referred to as “MFIC”) and Vincent B. Cortina, referred

to hereafter as the “CONSULTANT”.




 




WHEREAS, MFIC desires to avail itself of the

services of CONSULTANT in connection with the marketing and sale of MFIC’s

patented and proprietary “Dual Stream” hi-pressure mixer/reactor

Microfluidizer7 system  (the “Consulting

Assignment”), and




 




WHEREAS, CONSULTANT desires to furnish its

services to MFIC and to assist in such marketing and sales activities.




 




NOW

THEREFORE, for

and in consideration of the mutual promises and premises contained herein, MFIC

and the CONSULTANT agree as follows:




 




ARTICLE 1




TERM




This Agreement shall be for an initial period of six (6) months from

the date of its execution but will automatically renew and extend for a period

of six (6) months unless earlier terminated by any either party at any time by

the provision in writing of notice of such party’s election to do so provided

at 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, generally

render his consulting services to MFIC relating to the Consulting Assignment

and such further tasks or duties as MFIC and CONSULTANT shall agree upon from

time to time (the “Services”).




 




ARTICLE 3




CONTROL AND STATUS




(a)  The CONSULTANT shall have

the exclusive right to establish his own working hours, days of work and

site(s) where work is performed.  The

CONSULTANT is deemed to be an independent contractor for all purposes,

including but not limited to payroll withholdings, Workman’s Compensation

Insurance, health, accident and disability insurance, and agency and authority

to act on behalf of MFIC.




 




(b)  CONSULTANT shall only be

required to devote such time and energies to the Services rendered to MFIC as

he shall, after consultation with MFIC, deem reasonably necessary to accomplish

the Consulting Assignment and tasks undertaken.




 




 





























 




ARTICLE 4




REIMBURSEMENT FOR

EXPENSES




CONSULTANT will be reimbursed for certain of his expenses incurred in

rendering of the Services hereunder as follows:




 




A.  During the

term of this Agreement, the CONSULTANT shall, only with prior approval, be

allowed reimbursement of actual out-of-pocket expenses incurred in connection

with its activities hereunder, and shall be reimbursed on a current basis (net

30 days from the presentation of original vouchers, receipts or billing for

same).




 




B. 

Notwithstanding the foregoing and the provisions of Article 5

hereinafter, CONSULTANT shall not be entitled to bill for or seek reimbursement

for 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 at

a daily rate of Two Hundred Fifty Dollars ($250.00) payment to be deferred

until a mutually agreed upon date in 2003. The maximum aggregate compensation

payable 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 of

this consultancy.  All such confidential

information is hereinafter referred to as the “Information”.  Finally, CONSULTANT may become aware of or

receive directly confidential information of customers of MFIC or the identity

of such customers.




 




A.  CONFIDENTIALITY AGREEMENT




As a condition precedent to the execution of this Agreement by MFIC the

CONSULTANT and MFIC have entered into a Confidentiality and Non-Disclosure

Agreement of even date herewith  (the

“Confidentiality Agreement”) attached hereto as EXHIBIT A which agreement is

hereby incorporated by reference and which makes definitive provision for the

parties’ use, protection and handling of certain confidential information as is

defined therein (the “Information”).




 




B.  USE OF CONFIDENTIAL

INFORMATION: The Information disclosed to CONSULTANT by MFIC or its

customers shall be used by CONSULTANT solely in furtherance of his rendering of

the Services hereunder and no other use of the Information is contemplated or

permitted hereunder.




 




C.  RESTRICTED ACCESS TO

INFORMATION: Only CONSULTANT shall have access to the Information, and in

the event that CONSULTANT shall, for the purposes of effectuating the Services

hereunder, desire to disclose the Information to any other party then

CONSULTANT must, in advance of making any disclosure, obtain written approval

from MFIC allowing such third party access to Information (the acceptability of

such third party to be in MFIC’s sole judgement and discretion).  Such approved third party must, prior to

receiving any disclosure, execute an agreement with MFIC that is in form and

substance 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 right

and capacity to enter into this Agreement and to perform all of its obligations

hereunder, and neither this Agreement nor the performance of any of its

obligations hereunder are in violation of any other agreement or instrument to

which he is a party or by which he may be bound.




 




(b) he shall not

willfully or recklessly make any proprietary claims or use any technology or

invention that would infringe on the patent, copyright or other proprietary

intellectual property rights of any third party, without first obtaining

written permission or license from such party.




 




 (c) he will not seek any claim of ownership

or inventorship of, intellectual property right in, or license to any equipment

modification, improvement, or process relating in any way to the

Microfluidizer7 materials processing equipment or any component thereof.




 




ARTICLE  9




TERMINATION:  BREACH




Notwithstanding the above, either party may terminate

this Agreement upon provision to the other of fourteen (14) days written

notice, or upon the occurrence of any of the following:




(a)  CONSULTANT’s breach of any provision of the

Confidentiality Agreement;


(b)  breach of any warranty,

representation or covenant by the CONSULTANT;


(c)  the bankruptcy or insolvency of the

CONSULTANT;


(d) failure by either party to perform any material obligation hereunder.




 




ARTICLE  10




ASSIGNMENT




The CONSULTANT may not assign either this Agreement, which is a

personal services agreement, or his rights and/or obligations hereunder (except

for 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 or

provided to be given shall be deemed to have been sufficiently given or served

for all purposes if sent by the United Stated Postal Service, postage prepaid,

certified mail with return receipt or by Federal Express or other private

expedited carrier or delivery service with signature required with all charges

prepaid 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




DEFINITIVE

AGREEMENT:  AMENDMENT




This Agreement and any schedule hereto, together with the

Confidentiality Agreement and the Non-Competition Agreement, constitute the

entire agreement between the parties relating to the subject matter hereof,

supersedes any previous written or oral understandings or agreements and may

only be amended in writing by the parties.




 




ARTICLE 13




RIGHTS AND REMEDIES




The parties agree that in the event a breach or threatened breach of

this Agreement, MFIC’s  available

damages and remedies at law would be inadequate in that irreparable injury

might be sustained by MFIC and, accordingly, MFIC shall have the right to

obtain temporary and/or permanent injunctive relief or its equivalent under

domestic or foreign law against CONSULTANT and his agents to prevent the

violation of an affirmative or negative covenant as well as all other remedies

that may be available to MFIC.  All

legal and equitable rights, remedies and damages available to MFIC shall be

considered cumulative and the use or choice of a particular remedy, damage or

relief shall not preclude MFIC’s further exercise of other rights, remedies and

damages.  Damages and relief shall

specifically include an equitable accounting of all earnings, profits and other

benefits arising from a breach or violation including lost income potential and

lost business opportunity.  No delay or

omission in exercising any rights hereunder shall operate as a waiver of that

or any other right; a waiver or consent given by MFIC on a certain occasion is

effective only in that instance and shall not constitute or be construed as a

bar to, or a waiver of any right on any other occasion, unless otherwise agreed

to by MFIC.




 




ARTICLE  14




GOVERNING LAW:

CONSTRUCTION: JURISDICTION




This Agreement shall be governed by and construed under the laws of the

Commonwealth of Massachusetts, U.S.A. as an instrument under seal without

regard to its internal conflict of law provision.  The parties hereby consent to the jurisdiction of the courts of

the Commonwealth of Massachusetts or such other jurisdiction as MFIC may find

more convenient or effective for the prosecution of any action hereunder.




 




ARTICLE 18




SEVERABILITY




The parties agree that the provisions of this Agreement are

severable.  If any provision hereof

shall be declared to be invalid or unenforceable for any reason, such

unenforceability shall not affect the enforceability of the remaining

provisions of the Agreement, and such provision shall be reformed and construed

to 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 not

alter or affect CONSULTANT’s obligations under Articles 6 or 7 of  this Agreement or the provisions of the

Confidentiality Agreement or the Non-Competition Agreement whether arising

prior to or after termination, which obligations shall specifically survive

termination and continue in full force and effect.




 




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ARTICLE  20




BINDING NATURE OF

OBLIGATIONS




The obligations of CONSULTANT under this Agreement shall be binding respectively

upon any affiliate, assignee, or transferee of CONSULTANT.




 




ARTICLE  21




COUNTERPARTS




This Agreement may be executed in two or more counterparts, each

of  which shall be deemed an original,

but all of which together shall constitute one and the same instrument.




 




 




 




IN

WITNESS WHEREOF,

the CONSULTANT and MFIC have each caused this Agreement to be executed as a

sealed instrument, and to be delivered one to another as of the day, month and

year 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 Delaware

corporation together with its subsidiary, Microfluidics Corporation, and its

Morehouse-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 respect

to information which MFIC or its customers may furnish to the CONSULTANT for

consideration, evaluation and assistance in conjunction with consulting

Services to be provided to MFIC under a Consultancy  Agreement of even date herewith which is hereby incorporated by

reference, including marketing, sales, financial and related information,

inventions, or discoveries covered by any patent, any materials, devices,

processes, trade secrets, schematics, drawings, processes, methods and

materials of manufacture, timing of mixing and reaction, know-how or other

proprietary information which is disclosed (the “Information”)




 




All Information which submitted to CONSULTANT is submitted in

confidence and CONSULTANT agrees that it will not (without the prior written

consent of the MFIC disclosing such Information) for a period of Five (5) years

from the date hereof disclose to any third party any of the Information.  All Information submitted or provided in

writing shall be marked “Confidential” or if communicated or disclosed verbally

will be designated as confidential at the time of its communication confirmed

in writing as “Confidential” within thirty (30) days of its verbal

disclosure.  The provisions of this

paragraph shall not apply to any information:




 




1.             which is now or which becomes public

knowledge or a part of any public document or record through no fault of the

CONSULTANT;




 




2.             which is provided to the CONSULTANT

without restriction by a independent third party, who is not legally restricted

by agreement with MFIC or the disclosing party or otherwise, or;




 




3.                                     which the CONSULTANT can show by its

written records was already in its possession at the time of receipt of the

information from MFIC or the disclosing party.




 




Further, CONSULTANT agrees to be bound by the terms of any

confidentiality agreements in force between MFIC and such of its customers as

CONSULTANT may become exposed to or receive such customers confidential

information while rendering the services hereunder.




 




Notwithstanding the above provisions and except as provided for in the

Consultancy Agreement between the parties of even date herewith, nothing herein

contained shall be construed as granting to CONSULTANT any license, or other

rights in or with respect to any invention, or discovery (relating to the

Information) 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 the

other MFIC or its customers but specifically including product samples and any

interaction chamber or auxiliary processing module of any Microfluidizer7

device.




 




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The parties agree that in the event of CONSULTANT’s breach of this

Agreement, MFIC’s available damages and remedies at law would be inadequate

and, accordingly, MFIC shall have the right to obtain temporary and/or

permanent injunctive relief or its equivalent under domestic or foreign law against

the CONSULTANT or to prevent the unauthorized use or disclosure of any

information as well as all other remedies that may be available to the

MFIC.  All legal and equitable rights,

remedies and damages available to MFIC shall be considered cumulative and the

use or choice of a particular remedy, damage or relief shall not preclude

MFIC’s further exercise of other rights, remedies and damages.




 




This Agreement shall be governed by and construed under the laws of the

Commonwealth of Massachusetts without regard to its internal conflicts of law

provisions.  The parties hereby consent

to the jurisdiction of the courts of the Commonwealth of Massachusetts or such

other jurisdiction as MFIC may find more convenient or effective for the

prosecution of any action hereunder.




 




This Agreement together with Sections 6 & 7 of the Consultancy

Agreement above represents the entire agreement between the parties relating to

the subject matter hereof and supersedes any previous understanding or

agreement.




 




The parties agree that the provisions of this Agreement are

severable.  If any provision hereof

shall be declared to be invalid or unenforceable for any reason, such

unenforceability shall not effect the enforceability of the remaining

provisions of the Agreement, and such provision shall be reformed and construed

to 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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