Exhibit 10.61
CONSULTING AGREEMENT
AGREEMENT, dated as of July 9, 2001, between Bio-Plexus, Inc (the
"Company"), and KST Consulting (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to engage the Consultant to provide
consulting services to the Company for the period provided herein upon the terms
and conditions set forth herein;
WHEREAS, the Consultant is willing, and free, to provide the
consulting services to the Company as contemplated by this agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Company and the Consultant hereby agree as follows:
1. CONSULTING PERIOD. The term of this Agreement shall commence upon
the Effective Date and shall continue for an initial period of two years, or
such other period as shall be mutually agreed between the parties (the
"Consulting Period") and for any period thereafter as may be agreed to by the
parties in writing unless sooner terminated as provided herein. The parties may
agree to extend this Agreement beyond the initial Consulting Period upon such
terms as shall be mutually agreed to in writing. "Effective Date" shall have the
meaning ascribed to such term in the Company's Plan of Reorganization dated as
of July 19, 2001.
2. DUTIES. The Consultant agrees to provide advisory and consulting
services with respect to the business of the Company as may be from time to time
requested by the Company during the term of the Agreement. The services will
include, without limitations, sales and marketing assistance, strategic
planning, organizational structuring, strategies and financial planning. The
Consultant will not engage in other business activities, while a consultant to
the Company, which would conflict directly with the performance of its duties
under this Agreement, unless the Executive Officer has determined that no
significant conflict exists. In performing its duties for the Company, the
Consultant will report to the Chief Executive Officer or such other person as
may fill such position. The Consultant shall perform the consulting services at
such locations, as the parties shall agree to be appropriate. The Consultant
will devote, on average, a minimum of 25 hours per week in performance of the
above duties, and will maintain such records as requested by the Board to
document satisfaction of this requirement.
(a) 3. COMPENSATION/EXPENSES. As compensation for the consulting services to
be rendered under this Agreement, the Company agrees to pay the Consultant
$15,000 per month for the first 5 months and $12,000 per month thereafter
payable in arrears on the 5th day of the month. The first Payment shall be
made on or about August 5, 2001.
(b) The company shall grant the Consultant 100,000 options, 50,000 of which
vest upon the first anniversary of this Agreement, and 50,000 which vest
upon the second anniversary. Upon the occurrence of a Change of Control
(to be defined in the Option Agreement), all options will vest
immediately.
(c) The Company agrees to reimburse the Consultant for approved travel
expenses on the Company's business in accordance with the Company's travel
expense policies as in effect from time to time upon presentation of
proper documentation therefor; provided that the Chief Executive Officer
has approved such travel expenses in advance.
4. TERMINATION. The Consulting Period may be terminated upon written
consent of both parties. The Consultant may also be immediately terminated at
the option of the Company prior to the end of the initial or any renewal
Consulting Period, by notice to the Consultant, for Cause. Cause shall mean (i)
dishonesty, gross negligence or malfeasance by the Consultant in the performance
of its duties, (ii) acts which are injurious to the reputation, business or
goodwill of the Company or conduct which is scandalous, immoral or achieves
general notoriety in the community, (iii) the failure of the Consultant to
substantially perform its duties hereunder, or (iv) the breach by Consultant of
its obligations under this or any other agreement with the Company.
5. INDEPENDENT CONTRACTOR. It is the express intention of the
parties that the Consultant render its services hereunder in the capacity of an
independent contractor and that the Company shall not have the right to direct,
control or supervise the Consultant in the performance of such services. In
keeping with this status, the Consultant shall be free to control its method of
work within the framework of its obligation to the Company. The Consultant shall
not be treated as an employee, officer or agent of the Company for any purpose,
and the Consultant shall not participate in or have any rights under any
employee benefit plans or other compensation arrangements maintained by the
Company for its employees. It is also understood that the Consultant shall not
have the power or authority to supervise, direct or manage any employee of the
Company, or to enter into contracts on behalf of the Company or to borrow or
incur debts or liabilities on behalf of the Company of any kind or nature
whatsoever. The Consultant shall be responsible for obtaining all necessary
licenses and permits for the conduct of Consultant's business and in all other
ways to fully comply with the requirements of applicable laws. Consultant shall
provide its own business cards indicating its trade name or, with the permission
of the Company, that it is on assignment to the Company.
6. CONFIDENTIALITY. The Consultant agrees to abide by any
confidentiality agreement between the Company and any Prospect and to keep
secret and retain in the strictest confidence all confidential matters of the
Company, its clients, and any Prospect and not to disclose any such information
to anyone outside of the Company, except in the course of performing the
consulting services hereunder or as may be required by law. The Consultant also
agrees that all records, files and other memoranda made or kept by the
Consultant in connection with the consulting services rendered by the Consultant
under this Agreement shall be the exclusive property of the Company. The
Consultant agrees to return to the Company all records, documents, files and
other records relating to the business of the Company and its clients and all
copies thereof in whatever media.
7. PROPERTY INFORMATION. In providing services to the Company under
this Agreement, Consultant agrees that it shall not use or disclose any
confidential or proprietary information or
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trade secrets belonging to any other persons, and shall not bring
into the Company's premises any non-published document or any other
property belonging to any such persons, unless consented to in
writing by such persons.
8. POWER TO ENTER INTO AGREEMENT. The Consultant represents
and warrants that it is free to enter into this Agreement and that
its performance of services under this Agreement will not result in
a breach of, or constitute a default under, any agreement or
understanding to which the Consultant is a party or by which it may
be bound.
9. NO ASSIGNMENT OR WAIVER. Neither party may assign any of
its rights or delegate any of its duties under this Agreement. Any
attempted assignment in violation of this provision shall be void.
The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver
or deprive that party of the right hereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
10. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Consultant and the Company with respect to the
consulting services to be provided by the Consultant. It may not be
changed orally but only by a written agreement signed by each of the
parties.
11. ENFORCEABILITY AND APPLICABLE LAW. The invalidity or
unenforceability of any provision of this Agreement, in any respect,
shall not affect the validity or enforceability of such provision in
any other respect or of any other provisions of this Agreement, all
of which shall remain in full force and effect. This Agreement and
all amendments hereof shall be governed by the laws of the State of
Connecticut.
12. ADDITIONAL INDEMNIFICATION. The Company shall, to the full
extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify
Consultant. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Agreement shall not be deemed
exclusive of any other rights to which Consultant may be entitled
under the By-Laws or any agreement, action of shareholders or
disinterested directors or otherwise, both as to action in
Consultant's official capacity and as to action in another capacity
while retained by the Company, and shall inure to the benefit of the
heirs, executors, and administrators of such Consultant. The
indemnification obligations of the Company to the Consultant shall
specifically include coverage for claims relating to Consultant's
actions on behalf of the Company prior to the Effective Date.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above set forth.
BIO-PLEXUS INC.
By: __________________________________
Name:
Title:
KST CONSULTING
By: __________________________________
Name: Scott Tepper
Title:
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