exv10w42



 








Exhibit-10.42




Consulting Services Agreement




     This consulting services agreement (“Agreement”), made and entered into on November 20, 2006
and effective as of the 1st day of December 2006, by and between CytoCore, Inc. with
its principal place of business at 414 North Orleans Court, Suite 502 in Chicago, Illinois 60610
(the “Company”) and EBM, Inc., with his mailing address of 171 E. 90th Street, Unit 4C,
New York, New York 10128, telephone (212) 348-1880) (the “Consultant”).



Background




     The Consultant provides a variety of financial and business consulting services as part of
his regular business with EBM, Inc., and is ready, willing, and able to provide such consulting
assistance to the Company on the terms and conditions set forth herein.



     The Company is in the process of developing a series of medical devices, drug delivery
systems, and other cervical and uterine cancer related medical systems. In pursuit of its business
strategy the Company desires to retain the services of the Consultant under the terms and
conditions set forth herein.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company and the Consultant agree as follows:




	 	1.	 	Engagement and Scope of Services.
	 
	 	1.1	 	Company hereby retains consultant and Consultant agrees to
provide to the Company the consulting services which are more fully described below:
	 
	 	 	 	Consulting with the Company’s Chief Executive Officer, Chief Financial Officer,
Medical Advisory Board, other Officers, or other consultants related to or regarding
certain business plans, operations, commercialization of medical devices or theories,
and other business matters that fall within the Consultant’s area of expertise.
	 
	 	 	 	Consultant will have no authority or responsibility with regard to execution of any
contract on behalf of the Company. Consultant is not an employee or officer of the
Company.
	 
	 	 	 	Consultant will provide progress reports from time to time to the Company’s Chief
Executive Officer. Consultant agrees to provide any such report in writing if so
requested by the Company’s Chief Executive Officer.
	 
	 	1.2	 	This Agreement is a non-exclusive agreement. The Consultant is free to
provide similar or different services to any other company or organization desiring his
services, provided that the Consultant is able to provide the Company the services




 1 of 6









 






	 	 	 	here agreed upon from month to month. The Company is also free to acquire similar services
from any other party should it desire to do so.
	 
	 	2.	 	Term of Agreement.
	 
	 	2.1	 	This Agreement shall supersede the Agreement that is in place between CytoCore and EBM, Inc.
beginning on April 1, 2006 that has a twelve (12) month term. The term of this Agreement
shall be for a period of twenty four (24) months from the date of execution, and shall
terminate twenty four (24) months from signing date following written notice by one party to
the other at least thirty (30) days prior to the expiration date.
	 
	 	2.2	 	This Agreement is subject to termination in the event of a material breach of any term hereof
and the breaching party’s failure to cure such material breach to the non-breaching party’s
reasonable satisfaction within ten (10) business days of written notice.
	 
	 	2.3	 	Within ten (10) business days of termination of this Agreement, Consultant shall submit to
the Company an itemized invoice for any remaining unpaid fees or reimbursable expenses then
due and owing under this Agreement. Company, upon receipt and payment of such final invoice
shall thereafter have no further obligation for payment under this Agreement. Upon the
termination of this Agreement other than the surviving obligation, if any, under Section 6.1
below and payment in full of all monies due and owed from Company to Consultant pursuant to
this Agreement, Consultant shall promptly return to Company all copies of any Company data,
information, documents, or other materials of any sort stored in any form whatsoever,
including all materials incorporating any of the Company’s proprietary information.
	 
	 	3.	 	Fees, Expenses, and Payments.
	 
	 	3.1	 	The Company shall pay Consultant a fee of Ten Thousand Dollars ($10,000.00) for each month
it provides services to the Company. At such time as the Company has raised additional
funding of Five Million Dollars ($5,000,000), the payment to Consultant shall be increased to
Fifteen Thousand Dollars ($15,000.00) per month for the balance of the term of this
Agreement.
	 
	 	3.2	 	EBM will also receive various grants of warrants to purchase CytoCore stock. The warrant
grants and their associated performance triggers are listed in Addendum A attached hereto and
made a part of. this Agreement.
	 
	 	3.3	 	The Company shall reimburse the Consultant for its out-of-pocket expenses related to this
Agreement pursuant to the Company’s usual expense reimbursement procedures. The Consultant
acknowledges that he will comply with said procedures. Further, the Consultant agrees to
comply with the Company’s Code of Ethics and Business Conduct for Officers, Directors and




 2 of 6









 






	 	 	 	Employees of CytoCore, Inc. Finally, Consultant agrees that he is an independent contractor
solely responsible for the determination and payment, if any, of all applicable federal,
state, and local taxes related to this Agreement.
	 
	 	4.	 	Proprietary Information.
	 
	 	4.1	 	The Consultant acknowledges that in order to perform the services called for in this
Agreement, it may be necessary for the Company to disclose to Consultant certain confidential
technical, medical, or commercial information (“Confidential Information”). The Consultant
agrees that without the Company’s express written approval Consultant and its senior
employees shall, not, disclose, transfer, use, copy or allow access to any such Confidential
Information to any third parties, except those who have a need to know such Information and
are obligated to maintain the confidentiality of such Information. The foregoing shall not
apply to that Information which was already known to the Consultant before disclosure, is
publicly disseminated through no fault of either the Consultant, is rightfully received from
a third party or is required to be disclosed pursuant to court order. This provision shall
survive the termination of this Agreement and continue in effect for a period of three (3)
years.
	 
	 	5.	 	Warranty and Exclusion of Warranty.
	 
	 	5.1	 	The Consultant warrants that (i) its services will be of professional quality and performed
in accordance with the terms hereof and (ii) Consultant is under no obligation, the
enforcement of which would prevent it from performing the services required hereunder.
	 
	 	5.2	 	The foregoing warranties are in lieu of all other warranties, conditions, or
representations, express or otherwise, including without limitation any implied warranties of
merchantability or fitness of use for a particular purpose.
	 
	 	6.	 	Termination.
	 
	 	6.1	 	This Agreement may be terminated by either party to this Agreement upon thirty (30) days
prior written notice to the other party. This termination may be without cause. If this
Agreement is terminated without cause by the Company, the Company will be obligated to pay
the Consultant the balance of the fees and expenses due for the remainder of the Agreement.
	 
	 	7.	 	No Interference.
	 
	 	7.1	 	For the period commencing on the date hereof and ending on the date twenty four (24) months
after the date this Agreement is terminated, the Contractor agrees he shall not:






	 	(a)	 	take any action which would:










 3 of 6









 












	 	(i)	 	interfere with the contractual relationships of the Company or any
affiliate of the Company, customers, suppliers, other consultants,
employees, or others which relate to the business of the Company or any
affiliate of the Company; or
	 
	 	(ii)	 	induce any employee, consultant, or representative of the
Company or any affiliate of the Company not to become or not to continue as an
employee, consultant, or representative of the Company or affiliate of the
Company.






	 	(b)	 	make remarks or take any other action which would tend to disparage or diminish
the reputation of the Company or any entity affiliated with the Company.






	8.	 	General.
	 
	8.1	 	This Agreement is made and entered into, and is to be at least partially performed, in Cook
County, Illinois. It shall be interpreted, construed and enforced by, and its construction
and performance shall be governed by, the laws of the State of Illinois applicable to written
agreements made and to be performed entirely within Illinois without regard to principles of
conflicts of laws, except to the extent that Federal law may apply.
	 
	8.2	 	All notices required to be given hereunder shall be in writing and addressed to the
respective parties set forth herein, unless another address shall have been previously
designated in writing to the other party. Notice shall be deemed sent and effective when
delivered by hand delivery, via U.S. Mail, Certified, with return receipt requested, or via
regular U.S. Mail and confirmed facsimile delivery.
	 
	8.3	 	This Agreement constitutes the complete and entire Agreement between the Consultant and the
Company with respect to the subject matter hereof. This Agreement supersedes all prior
agreements, contracts, representations, proposals, discussions, and communications, whether
oral or in writing, relating hereto. This Agreement may be modified only in writing signed by
both the Consultant and a duly authorized representative of the Company.
	 
	8.4	 	This Agreement may be executed in counterparts or with facsimile signatures, all of which
shall constitute an original.




 4 of 6









 






	8.5	 	In the event any portion of this Agreement is deemed to be invalid or
unenforceable, that portion will be deemed to be omitted and the remainder of this
Release will remain in full force and effect.
	 
	9.	 	Signatures





	 	 	 	 	 	 	 
	The Company

	 	 	 	The Consultant	 	 
	 
	 	 	 	 	 	 
	Cytocore, Inc.

	 	 	 	Ebm, Inc.	 	 
	 
	 	 	 	 	 	 
	/s/ Robert McCullough
	 	 	 	 	 	 
	 

By: Robert McCullough

	 	 
	 	 

By:   Eugene Martineau
	 	 
	Title: Chief Financial Officer

	 	 	 	Title:	 	 
	Date: November 20, 2006

	 	 	 	Date: