Published on August 14, 2007
CONSULTING
AGREEMENT
THIS
CONSULTING AGREEMENT (“Agreement”)
is entered into this 18th day of April, 2007 by and between CryoPort,
Inc. (“The
Company”), and Malone
& Associates, LLC (“Consultant”).
RECITALS
A.
Consultant, through the expenditure of considerable money, time and effort,
has
created and developed, and is continuing to improve an efficient system for
providing his services (The “Services”) to private and public
companies.
B.
The
Company desires to obtain the assistance of Consultant, and Consultant is
willing to provide such assistance, with respect to the Services.
NOW,
THEREFORE,
in
consideration of the mutual covenants and promises contained herein, the
sufficiency of which is hereby acknowledged by each of the parties. The Company
and Consultant hereby agree as follows:
AGREEMENT
1.
Appointment
as Consultant/Scope of Services:
The
Company hereby engages Consultant in connection with the Services. Consultant
hereby agrees to perform such consulting services upon the terms and conditions
hereinafter set forth.
2.
Definition
of Consultant:
The
term "Consultant" as used herein shall be deemed to include the employees and
officers of the Consultant utilized in the performance of this Agreement. The
obligations, warranties, and representations of the Consultant hereunder are
also imposed on employees and officers of Consultant. Consultant shall advise
their employees and officers in writing of these obligations, warrants and
representations.
3.
Term:
This
Agreement shall be for a period of 6 months commencing as of the date of this
agreement. Company agrees that any relationships introduced to the Company
Directly or Indirectly through the efforts of the Consultant, shall not be
contacted nor any Business Dealings be had without the Consultant being
informed. These terms shall last for a period of 3 years.
4.
Services
of the Consultant:
Consultant agrees that during the term of this agreement, unless this agreement
is sooner terminated pursuant to its terms, consultant shall perform the
Services agreed, herein including more specifically those services described
below (a) attached hereto and incorporated herein by reference (collectively
“The Services”). The parties agree that the work performed by Consultant will be
governed by the general terms and conditions of this agreement, which will
be
controlling. (b) Consultant agrees to introduce marketing programs, and other
resources to the Company for the purpose of advancing the Company in its
executive summary and business plan.
-1-
5.
Compensation:
As
compensation for Consultant’s services as a consultant pursuant hereto, the
Company agrees to pay Consultant a total of 750,000 shares of restricted 144.
The first of which is 375,000 due upon signing and the balance is due 90 days
there after. The share price of the shares paid as compensation for services
rendered shall be valued, per share, at 50% of the closing price on the day
of
issuance of said shares.
6.
Expenses:
Consultant shall be responsible for any and all of its expenses incurred in
connection with the performance of the services.
7.
Relationship
of the Parties:
Consultant under this agreement is and shall act as an independent contractor,
and not an agent, servant or employee of the Company. Nothing in this agreement
shall be construed to imply that the Consultant or its agents, servants or
employees are officers or employees of the Company. Consultant shall assume
full
resume full responsibility to and for all of its agents and employees under
any
federal, state or local laws or regulations regarding employees liability,
workers compensation, unemployment insurance, income tax withholding, and
authorization for employment as well as any other acts laws, or regulations,
of
similar import. Consultant hereby acknowledges and agrees that it shall have
no
authority to enter into any contract or agreement or to bind the Company except
as specifically provided herein and that in connection with the performance
with
the services it shall have no authority to make any representations of any
kind.
8.
Non-Disclosure
Covenant:
(a)
Consultant covenants and agrees that it will not, at any time during the term
of
this Agreement or at any time thereafter communicate or disclose at any person,
or use for its own account or for the account of any other person, without
the
prior written consent of The Company, any confidential knowledge or information
concerning any trade secret or confidential information concerning the business
and affairs of the Company or any of its affiliates acquired by the Consultant
during the term of this agreement. Consultant will not deliver reproduce, or
in
any way allow such information or document s to be delivered by it or any person
or entity outside the Consultant without duty authorized specific direction
or
consent of the Company. (b) Company covenants and agrees that it will not,
at
any time during the term of the Agreement, or at any time thereafter,
communicate or disclose to any person, or use for its own account or for the
account of any person, without the prior written consent of the Consultant,
any
confidential knowledge or information concerning any trade secret or
confidential information concerning the business and affair of the Consultant
or
any of its affiliates acquired by the Company during the term of this agreement,
including the names of the investors identified or introduced by
Consultant.
9.
Representations
and Warrants of the Consultant:
Consultant hereby represents and warrants as of the date hereof each of the
following: (a) Consultant has the power and authority to enter this agreement
and to carry out its obligations hereunder. The execution and delivery of this
agreement by the Consultant and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by Consultant, and
no
other action on the part of the Consultant is necessary to authorize this
agreement and such transaction. (c) The Consultant is not nor has he ever been
a
Licensed Broker or Broker Dealer.
-2-
10.
Representations
and warranties of the Company:
Company
hereby represents and warrants as of the date hereof each of the following:
(a)
The Company has the requisite corporate power and authority to enter into the
agreement and to carry out its obligations hereunder. The execution and delivery
of this agreement by the Company and the consummation by Company of the
transactions contemplated hereby have been duly authorized by the Company,
and
no other corporate proceedings on the part of the Company are necessary to
authorize this agreement and such transaction.
11.
Successors
and Assigns:
The
rights and benefits of the direct and indirect successor(s), assignor(s), and
transferee(s) of both parties shall have no right to assign, transfer or
otherwise dispose of his, hers, its, right, title and interest in and to any
part of this Agreement or to assign of delegate the burdens hereof without
prior
written consent of the other party. Consultant's obligations hereunder shall
survive any termination of this Agreement.
12.
Notices:
Any
notice of communication to be given under the terms of this agreement shall
be
in writing and delivered in person or deposited certified or registered, in
the
United States mail, postage prepaid, addressed as follows:
|
If
to Consultant:
|
Malone
& Associates, LLC
Dr.
Art Malone Jr.
409
Calle San Pablo
Suite
12
Camarillo,
CA 93012
Phone:
805-445-9149
Fax:
805-445-0070
|
||
|
If
to Company:
|
Peter
Berry, CEO
CryoPort,
Inc.
451
Atlas Street
Brea,
CA 92821
Phone:
714-256-6100
Fax:
714-256-6110
|
-3-
13.
Entire
Agreement:
This
agreement constitutes and embodies the full and complete understanding and
agreement of the Parties hereto with respect to the subject matter hereof and
supersedes all prior understandings whether oral or in writing and may not
be
modified except by writing signed by the Parties hereto.
14.
Arbitration:
The
parties shall resolve any disputes arising hereunder before a panel of three
arbitrators selected to pursuant to and run in accordance with the rules of
the
American Arbitration Association. The arbitration shall be held in Ventura
County. Each party shall bear their own attorney’s fees and costs of such
arbitration. Disputes under this agreement as well of the terms and conditions
of the Agreement shall be governed in accordance with and by the laws of the
State of California (without regard its conflicts of law principles). The
successful party in the arbitration proceedings shall be entitled to seek an
award of reasonable attorney’s fees from the Arbitrators.
15.
Effect
and Waiver:
The
failure of either party to insist on strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term covenant, or condition, nor shall any waiver or
relinquishment of any right or power at any one time be deemed a waiver of
relinquishment of that right or power for all or any other times.
16.
Modifications:
Any
modifications of this Agreement will be effective only if it is in writing
and
signed by the party to be charged.
17.
No
Rights in Third Parties:
Nothing
herein expressed or implied is intended to or shall be construed to confer
upon
or give to any person, firm or other entity, other than the parties hereof
and
their respective successors and assigns or personal representatives, any rights
or remedies under or by reason of this Agreement.
IN
WITNESS WHEREOF,
This
Consultant Agreement has been executed as of the day and year first written
below.
|
The
Company:
|
|||
 |
Date: 4/19/07 | ||
|
|
|||
|
Peter
Berry, Chief Executive Officer
|
|
Consultant:
|
|||
 |
Date: ________________ | ||
|
|
|||
|
Dr.
Art Malone Jr., Chairman/President
|
-4-
ATTACHMENT
“A”
CONSULTANT
SERVICES
Consultant
shall provide those services requested by the Company.
-5-