exv10w39



 





Exhibit 10.39




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”), dated and effective as of November 15, 2006
(the “Effective Date”), is entered into by and between CYTOCORE, INC., with offices at 414 North
Orleans Street, Chicago, Illilonois 60610 (“Company”), and DR. AUGESTO OCANA, with offices at 20
Foxcroft Drive, Princeton, New Jersey 08540 (the “Executive”).



     In consideration of the mutual promises set forth below and other good and valuable
consideration, the receipt and sufficiency of which the parties acknowledge, the Company and
Executive agree as follows:



          1. Employment. The Company agrees to employ Executive and
Executive accepts employment on the terms and conditions set forth in this Agreement.




          2.  Employment Term. Commencing on the Effective Date, the Company agrees to
employ Executive for a term of three (3) years (“Term”), unless terminated earlier in accordance
with Section 5 below. The period of time for performance hereunder shall be referred to as the
“Employment Period”.




          3. Nature of Employment. During the Employment Period, Executive
shall serve as Chief Executive Officer and a member of the Board of Directors of the Company.
Executive shall have all of the customary powers and duties associated with these positions.
Executive shall report to the Board of Directors of the Company. Executive shall devote his full
time and attention and best efforts to perform successfully his duties and advance the Company’s
interests; provided, however, the Company shall permit Executive to act as an independent director
of other corporations and engage in other professional and business endeavors so long Executive’s
duties in connection therewith do not (i) interfere with his duties and loyalties under this
Agreement or (ii) cause Executive to violate his obligations under Sections 6, 7 and 8 of this
Agreement. Executive shall only engage in such activities or endeavors if they are performed for a
charitable organization or with respect to other organizations redound to the benefit of the
Company. Executive shall advise the Board of Directors of the identity of the organizations he is
associated with from time to time. Executive shall abide by Company policies, procedures and
practices as they may exist and be in force from time to time. Employee shall perform such services
from whatever location he elects, but he will be present at such meetings and functions at the
Company’s headquarters and elsewhere reasonably deemed important to the Company.




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          4. Compensation.




     (a) Base Salary. During the Employment Period, the Company shall pay
Executive an annual base salary of one hundred eighty thousand dollars ($180,000.00),
payable by the Company in monthly installments of $15,000.00 dollars starting November
15, 2006. Executive’s Base Salary shall be subject to all appropriate federal and state
withholding taxes and shall be payable in accordance with the normal payroll procedures
of the Company. Executive’s salary shall be reviewed annually by the Company’s Board of
Directors (“Board”) and may be increased in the Board’s discretion; provided, however,
that Executive’s annual Base Salary shall not be reduced below one hundred eighty
thousand dollars ($180,000.00) without Executive’s written consent.



     Executive’s annual base salary shall be increased to two hundred four thousand dollars
($204,000.00), payable in monthly increments of seventeen thousand ($17,000.00), at the earlier of
the date on which the Company has raised additional equity of two million five hundred thousand
dollars ($2,500,000.00) at an average price of not less than eighteen cents ($.18) per share, or
six (6) months after the Effective Date.



     In addition, Executive shall receive the sum of forty five thousand dollars ($45,000.00) in
eighteen (18) monthly installments of two thousand five hundred dollars ($2,500.00) commencing in
the month following the Effective Date. In the event of the termination of Executive’s employment
for any reason, any remaining monthly payments shall continue to be made until the sum of forty
five thousand dollars ($45,000) has been paid in full.



     (b) Warrants. During the Employment Period, Executive shall be entitled to
grants of warrants exercisable into common stock of the Company upon the occurrence of
the following events:



     (i) Five hundred thousand (500,000) warrants to purchase five hundred thousand (500,000)
shares of common stock of the Company at a price equal to the closing price of the Company’s common
stock on the first day of Executive’s Employment Period less a discount of thirty-three and one
third per cent (33 1/3%).



     (ii) Three hundred thousand (300,000) warrants to purchase (300,000) shares of common
stock of the Company upon completion of the FDA trials for the Company’s Products (as defined
below) and receipt of all necessary FDA approvals thereof for the sale of the Company’s Products to
the general public in the United States at the closing price of the Company’s common stock on the
OTC Bulletin Board of the Company on the date all such approvals have been received less a discount
of thirty-three and one third per cent (33 1/3%).



     (iii) Five hundred thousand (500,000) warrants to purchase five hundred thousand (500,000)
shares of common stock of the Company on the date that the Company



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has raised five million dollars ($5,000,000) in equity at an average price of not less than twenty
two cents ($.22) per share less a discount to Executive of thirty-three and one third per cent (33
1/3%) from such average price. Executive shall have earned the incentive only if such capital raise
is completed with twelve (12) months from the date of the commencement of the Employment Period.




     (iv) The Company intends to sell its Products through existing channels of distribution.
Executive shall receive two hundred thousand (200,000) warrants to purchase two hundred thousand
(200,000) shares of the common stock of the Company at an exercise price equal to the average
closing price of the common stock of the Company (less a thirty three and one third per cent (33
1/3%) discount to the Executive) during the sixty (60) day period prior to the date on which the
Company has executed distribution agreements with third parties which have confirmed orders of (a)
ten million dollars ($10,000,000) for the Company’s E2 Collector or similar product and (b) fifteen
million dollars ($15,000,000) for its Endometrial scan or similar product (collectively the
“Products”) within twelve (12) months from the date on which the Products have received all
governmental approvals for their sale and the Company has publicly announced that the Products are
available for sale (“Announcement Date”). The foregoing shall be increased to three hundred
thousand (300,000) warrants to purchase three hundred thousand (300,000) shares of common stock of
the Company if any of the distribution companies achieves sales of twenty five million dollars
($25,000,000) of the Company’s Products during the first twelve (12) months after the Announcement
Date and has world-wide sales of all of its products of not less than twenty billion dollars
($20,000,000,000).



     (v) Two hundred thousand (200,000) warrants to purchase two hundred thousand (200,000)
shares of common stock of the Company if a distribution company which has achieved annual sales of
at least twenty five million dollars ($25,000,000) of the Company’s Products during the first
twelve (12) months of sales makes an equity investment of at least two million dollars ($2,000,000)
in the Company.



     (vi) Five hundred thousand (500,000) warrants to purchase five hundred thousand (500,000)
shares of common stock of the Company at such time as the closing price of the Company’s common
stock listed on the OTC Bulletin Board is thirty cents ($.30) or more per share during thirty (30)
days out of any consecutive forty five (45) day period during which the Company’s stock is traded.



     (vii) Five hundred thousand (500,000) warrants to purchase five hundred thousand (500,000)
shares of common stock of the Company at such time as the closing price of the Company’s common
stock listed on the OTC Bulletin Board is fifty ($.50) or more per share during forty five (45)
days out of any consecutive sixty (60) day period during which the Company’s stock is traded



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     (viii) Five hundred thousand (500,000) warrants to purchase five hundred thousand (500,000)
shares of common stock of the Company at such time as the closing price of the Company’s common
stock listed on the OTC Bulletin Board is seventy five cents ($.75) or more per share during forty
five (45) days out of any consecutive sixty (60) day period during which the Company’s stock is
traded.



     (ix) One million (1,000,000) warrants to purchase one million (1,000,000) of common stock
of the Company at such time as the closing price of the Company’s common stock listed on the OTC
Bulletin Board is one dollar ($1.00) per share during forty five (45) days out of any consecutive
sixty (60) day period during which the Company’s stock is traded;



     (x) Except as otherwise provided herein, the exercise price for all of the above
warrants is the average closing price of the Company’s stock during the prior forty five (45)
trading days less a thirty three and one third per cent discount (33 1/3%) to Executive. However,
the exercise price for the warrants to be issued pursuant to Section 5 (a) (ix) above shall be one
dollar ($1.00) per share for the first five hundred thousand (500,000) shares and one dollar and
fifty cents ($1.50) per share for the balance.



     (xi) The period for Executive to exercise any warrants granted to him shall be three (3)
years from the date of grant. A copy of the form of warrant to be granted by the Company to
Executive is attached hereto as Exhibit A.



     (c) Standard Benefits. Executive may participate in any medical, dental disability,
life insurance and other Executive benefit plans and programs which may be available from time to
time to other Company executives at Executive’s level; provided however, that any such benefits for
the Company executives as a group may be changed, modified, or revoked at the sole discretion of
the Company with at least ninety (90) days’ written notice.



     (d) Reimbursement of Expenses. During the Employment Period, Executive is authorized
to incur reasonable, ordinary, and necessary business expenses in the performance of his duties
under this Agreement and the Company shall reimburse Executive or pay the expenses in accordance
with the policies established by the Company within thirty (30) days of submission of the required
documentation.



     (e) Auto Allowance. The Company will pay Executive a monthly non-accountable automobile allowance in the amount of five hundred dollars ($500.00) per
month, which amount will be increased to eight hundred dollars ($800.00) per month at
such time as the Company has received equity contributions of not less than five million
dollars ($5,000,000).



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     (f) Revenue Incentives. Executive will receive one million warrants
(1,000,000) to purchase one million (1,000,000) shares of common stock of the Company at an
exercise price of the average closing price of the common stock of the Company during the sixty
(60) day period prior to the date on which the Company’s gross revenue from the sale of its
Products exceeds twenty million dollars ($20,000,000) during any consecutive twelve (12) month
period; and a warrant for the purchase of an additional one million (1,000,000) shares of common
stock of the Company at an exercise price of the average closing price of the common stock of the
Company during the sixty (60) day period prior to the date on which the Company’s gross revenue
from the sale of its Products exceeds fifty million dollars ($50,000,000) during any consecutive
twelve (12) month period.



     (g) Acquisition of the Company



     (i) Executive shall receive two and one half million (2,500,000) warrants to purchase
two and one half million (2,500,000) shares of common stock of the Company at an exercise price of
twenty five cents ($.25) per share if the Company is acquired for more than one dollar ($1.00) per
share;



     (ii) Executive will receive three and one half million (3,500,000) warrants to purchase
three and one half million (3,500,000) shares of common stock of the Company at an exercise price
of fifty cents ($.50) if the Company is acquired for more than two dollars ($2.00) per share,



     (iii) Executive will receive five million (5,000,000) warrants to purchase five million
(5,000,000) shares of common stock of the Company at an exercise price of seventy five ($.75) per
share if the Company is acquired for more than three dollars ($3.00) per share; and



     (iv) The awards earned if the Company is acquired are not cumulative.




     5. Termination of Employment Executive’s employment with the Company will
continue throughout the Employment Period, unless earlier terminated pursuant to Section 2 of
this Agreement or any of the following provisions:



     (a) Death. In the event that Executive shall die during his employment by the Company
hereunder, the Company shall pay to Executive’s estate any compensation due that would otherwise
have been payable through the date of his death.



     (b) Disability. In the event that Executive shall become disabled during his
employment by the Company, Executive’s employment hereunder shall terminate and the Company shall
provide Executive with severance payments equal to three (3) months Base



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Salary (based on Executive’s monthly salary on the date of termination). Such severance payments
shall be paid over a period of six (6) months in accordance with the Company’s normal payroll
practices and schedule. For purposes of this Agreement, Executive shall become “disabled” if he
shall become, because of illness or incapacity, unable to perform the essential functions of his
job under this Agreement with reasonable accommodation for a continuous period of 120 days during
his employment by the Company.




     (c) Termination by the Company for Cause. The Company shall have the right
to immediately terminate Executive’s employment at any time for any of the following
reasons (each of which is referred to herein as “Cause”) by giving Executive written notice
of the effective date of termination (which effective date may be the date of such notice):



     (i) the continued and intentional failure by Executive to substantially perform his duties
with the Company, other than any such failure resulting from Executive’s disability (as defined in
subsection (b) above), which is materially detrimental to the Company’s business; provided,
however, that no termination of Executive’s employment shall be for Cause as set forth in this
clause until (A) there shall have been delivered to Executive written notice setting forth that
Executive has committed the conduct set forth in this subsection (i) and specifying the
particulars thereof in reasonable detail, (B) Executive shall have been provided an opportunity to
present his position to the Board, either in writing or in person and (C) Executive shall be given
a thirty (30) day period to cure the conduct specified in the written notice referenced in
subsection (i)(A) above;



     (ii) a breach by Executive of his fiduciary duties as an officer of the Company, which is
materially detrimental to the Company’s business;



     (iii) Executive’s conviction of or plea of nolo contendere to a felony or final non-appealable
conviction of any other crime that incarcerates Executive for a period of one (1) year or longer;
or



     (iv) Executive engages in fraud, embezzlement, or theft involving the Company.



     Notwithstanding the foregoing, no failure to perform by Executive after Executive gives
notice of termination shall constitute Cause for purposes of this Agreement.



     If the Company terminates Executive’s employment for Cause as defined above, Executive shall
only be entitled to any compensation due that would otherwise have been payable through the date
of his termination, and the Company shall have no further obligations hereunder from and after
the effective date of termination.



     (d) Termination by the Company Without Cause. The Company shall have the right to
terminate Executive without Cause for any reason at any time upon at least ninety (90) days’
prior written notice to Executive. If the Company terminates Executive’s employment without Cause,
Executive shall be entitled to severance payments as set forth in subsection (g) below.



     (e) Voluntary Termination by Executive for “Good Reason”. Executive may at any time
terminate this Agreement for “Good Reason” upon at least ninety (90) days’



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prior written notice to the Company. For purposes of this Agreement, “Good Reason” shall mean any
one or more of the following: a reduction by the Company without Executive’s consent of Executive’s
position, duties, responsibilities, or status with the Company that represents an adverse change in
his position, duties, responsibilities, or status, or the removal of Executive from or any failure
to reelect Executive to any of the positions referred to in
Section 3 above, but
specifically excluding any action in connection with the termination of Executive’s employment for
death, disability, or Cause (as defined herein);




     (i) a reduction by the Company of the compensation Executive has become entitled to without
Executive’s consent.



     (ii) any material breach by the Company of any provision of this Agreement or any other
agreement between the Company or any of its subsidiaries and Executive that, in any case, is not
cured within fourteen (14) days of the Company’s receipt of written notice from Executive of such
breach; or



     (iii) the insolvency of or the filing by the Company of a petition for bankruptcy of the
Company, which petition is not dismissed within sixty (60) days; or



     If Executive terminates this Agreement for Good Reason, Executive shall be entitled to
severance payments as set forth in subsection (g) below.



     (f) Voluntary Termination by Executive. Executive may terminate this Agreement at any
time upon delivering at least ninety (90) days’ prior written notice of resignation to the
Company. In the event of such termination by Executive (other than for Good Reason), Executive
shall only be entitled to compensation that would otherwise have been payable through the date of
the termination of his employment.



     (g) Compensation
Upon Termination Without Cause or For Good Reason. In the event of a
termination of this Agreement by the Company without Cause or by Executive for Good Reason, the
Company shall pay to Executive as severance pay and in lieu of any further compensation for
periods subsequent to the termination, an amount in cash equal to the sum of (i) twelve (12)
months’ Base Salary divided into twelve (12) equal monthly installments payable in accordance with
the Company’s customary practice (which payments shall be calculated using Executive’s Base Salary
at the time of termination), with the first installment to be paid within thirty (30) days
following termination and (ii) the full amount of any performance bonus that Executive was
eligible to receive for the year during which the termination of this Agreement occurs. In
addition, Executive shall be entitled, for a period of twelve (12) months, to continue to receive
the standard benefits under the plans and programs described in Section 4 (c) above. Executive
shall be entitled to receive any Warrants which would have been granted to Executive within six
(6) months following such termination as if the Employment Period had not terminated shall be
granted to Executive.



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     (h) No Mitigation or Set-Off. Executive will not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment. The Company shall have
no right of set-off or counterclaim in respect of any claim, debt of obligation against any
payment to or for the benefit of Executive provided for in this Agreement, except as expressly
provided herein.



     6. Non-Disclosure. The Company agrees to provide Executive with its
Confidential Information (as defined below) during the Employment Period. During the
Employment Period and at all times thereafter, Executive shall keep secret and retain in
strictest confidence, and shall not, without the prior written consent of a majority of the
members of the Board of Directors of the Company, furnish, make available or disclose to
any third party or use for the benefit of himself or any third party, except in the
furtherance of his job duties with the Company, any Confidential Information. Executive
shall not, at any time after his employment with the Company has ended (for whatever
reason), use or divulge to any person or entity, directly or indirectly, any Confidential
Information, or use any Confidential Information in subsequent employment, work or
business of any nature. As used in this Agreement, “Confidential Information” shall mean
any information relating to the business or affairs of the Company and its affiliates and
predecessors, including, but not limited to, trade secrets, information relating to financial
statements, operations manuals, systems manuals, customer identities, customer profiles,
customer preferences, partner or investor identities, Executives, suppliers, project designs,
project methods, advertising programs, advertising techniques, target markets, servicing
methods, equipment, programs, strategies and information, computer programs and
models, technology, market analyses, profit margins, pricing information, cost structure,
past, current or future marketing strategies, or any other proprietary information used by
the Company or its affiliates; provided however, that Confidential Information shall not
include any information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Executive. Executive acknowledges that the
Confidential Information is vital, sensitive, confidential and proprietary to the Company
and that he is under a contractual and common law duty to not disclose the Confidential
Information to any third party at any time.



     7. Non-Competition. In consideration of the numerous mutual promises
contained in this Agreement between Executive and the Company, including, without
limitation, those involving Confidential Information, and in order to protect the
Company’s Confidential Information (including trade secrets), the value and goodwill of
the Company’s business, and the Company’s legitimate business interests and to reduce the
likelihood of irreparable damage which would occur in the event such information is
provided to or used by a competitor of the Company, Executive agrees that during the
Employment Period and for a period of one (1) year immediately following the
termination of this Agreement (for whatever reason, except as provided in Sections 5(d),
and 5(e) (the “Non-Competition Term”), he will not, directly or indirectly, either through
any form of ownership or as a director, officer, principal, agent, Executive, employer,
adviser, consultant, shareholder, partner, member, manager, or in any other individual or
representative capacity whatsoever, either for his own benefit or for the benefit of any
other person, firm, business, corporation, partnership, governmental or private entity, or
any other entity of whatever kind, without the prior written consent of the Company



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(which consent may be withheld in the Company’s sole discretion), (i) compete for or solicit
business related to cancer diagnostic products or services for or on behalf of any person or
business entity with a place of business in the United States; (ii) own, operate, participate in,
undertake employment with or have any interest in any entity with a place of business in the United
States which competes with the business of the Company, except owning publicly traded stock for
investment purposes only in which Executive owns less than five per cent (5%); (iii) compete or
solicit business competitive with the business of the Company from any customer of the Company; or
(iv) use in any competition, solicitation, or marketing effort any Confidential Information, any
proprietary list, or any information concerning customers of the Company.




     Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities
and the time duration of the provisions of this Section 7 are reasonable and are no broader than
are necessary to protect the legitimate business interests of the Company, including protecting the
value and goodwill of the Company, including its Confidential Information. It is the intent of the
parties that the provisions of this Section 8 shall be enforced to the fullest extent permissible
under the applicable law. The parties agree that if at the time enforcement is sought, a court of
competent jurisdiction adjudges any terms of any provision of this Section 8 to be void, invalid or
unenforceable, such court shall modify or reform such provision so that it is enforceable to the
fullest extent permitted by applicable law or if such modification or reformation is not possible,
shall sever the provision, and enforce the remaining provisions of this Section, which shall remain
in full force and effect.



     This Non-Competition provision can only be revoked or modified by a writing signed by the
parties which specifically states an intent to revoke or modify this provision.



     8. Non-interference or Solicitation



     (a) Executive agrees that, during the Employment Period and for an additional period of
one (1) year after the termination of Executive’s employment (for whatever reason, except as
provided in Sections 5(d)and 5(e)), neither he nor any individual, partner(s), limited partnership,
corporation or other entity or business with which he is in any way affiliated, including without
limitation, any partner, limited partner, director, officer, member, shareholder or Executive of
any such entity or business, will solicit or accept business from, or perform services on behalf
of, any client or customer of the Company with which Executive had contact during the Employment
Period, or in any way encourage them to terminate or otherwise negatively alter their relationship
with the Company. This Section 9 shall not apply if Executive’s employment is terminated pursuant
to Sections 5(d) or 5(e)- However, nothing herein shall prevent Executive from soliciting or
providing goods and services that are competitive with the business of the Company to any client or
customer of the Company.



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     (b) Executive also agrees that during the Employment Period and for an additional period
of one (1) year after the termination of Executive’s employment (for whatever reason, except as
provided in Sections 5(d)and 5(e)) that neither he nor any individual, partner(s), limited
partnership, corporation or other entity or business with which he is in any way affiliated,
including without limitation, any partner, limited partner, director, officer, member, shareholder
or Executive of any such entity or business, will request, solicit, induce or attempt to
influence, directly or indirectly, any employee of the Company to terminate their employment with
the Company. This Section 9 shall not apply if Executive’s employment is terminated pursuant to
Sections 5(d), and 5(e) herein. This Section 8(b) shall not prohibit Executive from soliciting or
hiring any employees whose employment was involuntarily terminated by the Company.



     9. Work Product For purposes of this Section 9, “Work Product” shall mean all
intellectual property rights, including all trade secrets, U.S. and international copyrights,
trademarks, trade names, patentable inventions, discoveries and other intellectual property rights
in any work product that is created in connection with Executive’s work or using the Company’s
materials. For purposes of this Agreement, “Work” shall mean (1) any direct assignments and
required performance by or for the Company, and (2) any other productive output that relates to the
business of the Company and is produced during Executive’s employment by the Company. For this
purpose, Work may be considered present even after normal working hours, away from the Company’s
premises, on an unsupervised basis, alone or with others. Unless otherwise approved in writing by
the Chief Executive Officer or the Board, this Agreement shall apply to all Work Product created in
connection with ail Work conducted before or after the date of this
Agreement.



     The
Company shall own all rights in the Work Product. To this end, all Work Product shall be
considered work made for hire for the Company. If any of the Work Product may not, by operation of
law or agreement, be considered Work made by Executive for hire for the Company (or if ownership of
all rights therein do not otherwise vest exclusively in the Company immediately), Executive agrees
to assign, and upon creation thereof does hereby automatically assign, without further
consideration, the ownership thereof to the Company. Executive hereby irrevocably relinquishes for
the benefit of the Company and its assigns any moral rights in the Work Product recognized by
applicable law. The Company shall have the right to obtain and hold, in whatever name or capacity
it selects, copyrights, registrations, and any other protection available in the Work Product.



     10. Remedies for the Company. The termination of this Agreement by the Company
for Cause shall not be deemed to be a waiver by the Company of any breach by Executive of this
Agreement or any other obligation owed the Company, and, notwithstanding such a termination,
Executive shall be liable for all damages attributable to such a
breach. Because of the special
relationship between Executive and the Company, the confidential nature of the Company’s
developments and the fact that damages may not




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be adequate to enforce the rights of the Company in the event of a breach of this Agreement by
Executive, it is agreed that the Company may seek to enforce all or some of its rights by seeking
an injunction from a court of appropriate jurisdiction.




     11. Remedies for Executive




          (a) The termination of this Agreement by Executive for Good Reason shall not be deemed to be
a waiver by Executive of any breach by the Company of this Agreement or any other obligation owed
Executive, and, notwithstanding such a termination, the Company shall be liable for all damages
attributable to such a breach.




          (b) In the event that Executive is terminated for Cause and it is ultimately determined that
the Company lacked Cause, (i) the termination shall be treated as a termination other than for
Cause; (ii) Executive shall have the right to seek remedy for a breach of this Agreement by the
Company, including, but not limited to, any other such damages as may be suffered and/or incurred
by Executive, Executive’s costs incurred during the dispute and reasonable attorneys’ fees in
connection with such dispute; and (iii) Executive shall receive all severance benefits to which he
would have been entitled in the event of a termination by the Company without Cause, as provided
in Section 5(g).




     12.
No Waiver. No waiver or non-action by either party with respect to any breach by
the other party of any provision of this Agreement, nor the waiver or non-action with respect to
the provisions of any similar agreement with other employees or the breach thereof, shall be deemed
or construed to be a waiver of any succeeding breach of such provision, or as a waiver of the
provision itself.



     13. Invalid Provisions. Should any portion of this Agreement be adjusted or held
invalid, unenforceable or void, such holding shall not have the effect of invalidating or voiding
the remainder of this Agreement and the parties hereby agree that the portion so held invalid,
unenforceable, or void shall, if possible, be deemed amended or reduced in scope, or otherwise be
stricken from this Agreement, to the extent required for the purposes of validity and enforcement
thereof.



     14. Successors and Assigns. Neither Executive nor the Company may assign its rights,
duties, or obligations hereunder without consent of the other.



     15. Survival. Unless otherwise provided herein, the provisions of Sections 6, 7, 8 and
9 of this Agreement shall survive Executive’s termination of
employment. Other provisions of this
Agreement shall survive any termination of Executive’s employment to the extent necessary to ensure
the preservation of each party’s respective rights and obligations.



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     16. 
Prior Agreements. This Agreement incorporates the entire agreement between
both parties with respect to the subject matter hereof and supersedes all other prior agreements
(oral or written), documents or other instruments with respect to the matters covered herein.



     17. Governing Law. This Agreement shall be governed by, and interpreted in accordance
with the internal substantive laws of the State of Illinois, without giving effect to the
principles of conflicts of law. Each party hereto hereby irrevocably submits itself to the
exclusive personal jurisdiction of the Federal and State courts sitting in the city of Chicago, and
hereby waives any claims it may have as to inconvenient forum.



     18.  No Oral Modifications. This Agreement may not be changed or terminated
orally, and no change, termination or waiver of this Agreement or of any of the provisions herein
contained shall be binding unless made in writing and signed by both parties, and, in the case of
the Company, by a person designated by the Board or any committee thereof.



     19. Notices.  All notices and other communications required or permitted hereunder shall
be made in writing, and shall be deemed properly given if delivered personally, mailed by certified
mail, postage prepaid and return receipt requested, sent by facsimile, or sent by Express Mail or
Federal Express or other nationally recognized express delivery service, as follows:




	 	 	 	 	 
	 

	 	If to the Company:
	 	CytoCore, Inc., 414 North Orleans
Street, 
Chicago, Illinois
	 

	 	Attention:
	 	Robert McCullough, 
Chief Financial Officer
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Edmund Schaffzin,
	 

	 	 	 	888 Seventh Avenue- Suite 4500,
	 

	 	 	 	New York, New York 10106
	 
	 	 	 	 
	 

	 	If to Executive:
	 	Dr. Augusto Ocana, 
20 Foxcroft Drive

Princeton, New Jersey 08540
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Kevin M. Briody, Esq., 
Gallagher, Briody
& Butler 
155 Village 155 Boulevard,

Princeton, New Jersey 08540






     Notice given by hand, Express Mail, Federal Express, or other such express delivery service shall be effective
upon actual receipt. Notice given by facsimile transmission shall be effective upon actual receipt during the recipient’s
customary business hours, or at the beginning of the recipient’s next business day after receipt if not received during the



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recipient’s customary business hours. All notices sent by facsimile transmission shall be confirmed
promptly after transmission in writing by certified mail or personal delivery.




     Any party may change any address to which notice shall be given to it by giving notice as
provided above of such change in address.



     20. Entire Agreement. The parties expressly agree that this Agreement is contractual in nature
and not a mere recital, and that it contains all the terms and conditions of the agreement between
the parties with respect to the matters set forth herein. All prior negotiations, agreements,
arrangements, understandings and statements between the parties relating to the matters set forth
herein that have occurred at any time or contemporaneously with the
execution of this Agreement
are superseded and merged into this completely integrated Agreement. The Recitals set forth above
shall be deemed to be part of this Agreement.



     21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which shall constitute
one and the same instrument.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	THE COMPANY: 

CytoCorc,Inc.

 	 
	 	By:  	/s/ Robert McCullough
 	 
	 
	 	EXECUTIVE:	 
	 	 	 	 
	 	By:  	/s/
Augusto Ocana
 	 
	 	 	Dr. Augusto Ocana	 
	 	 	 	 
	 




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