AMENDED AND RESTATED
CONSULTING AGREEMENT
This Amended
and Restated Consulting Agreement (the
“Agreement” ) by and between Power 3 Medical
Products, Inc., a New York corporation (the
“Company” ), and Bronco Technology, Inc. (
“BTI” ) is executed the 1 day of June, 2009 and
shall be effective for all purposes as of June 1, 2009 (the
“Effective Date” ).
RECITALS
WHEREAS, the
Company and BTI previously entered into that certain Consulting
Agreement dated as of September 7, 2008 (the “Original
Agreement” );
WHEREAS, the
Company is contracting to receive the services of Helen R. Park,
CEO of BTI (the “Officer” ), as Interim CEO of
Power3 Medical Products, Inc.
WHEREAS, the
Officer has a background in biotechnology business consulting,
planning, and reorganization and is willing to provide services to
the Company through BTI based on this background.
WHEREAS, the
Company and BTI desire to amend the Original Agreement and update
the provisions of the Original Agreement to reflect the
parties’ mutual understanding and intent and to restate the
Original Agreement, as amended, in its entirety.
NOW, THEREFORE,
in consideration of the premises and of the covenants and
agreements herein provided, the parties hereto agree as
follows:
1.1
Term . The Company hereby contracts with BTI for
the Officer to serve as Interim Chief Executive Officer, and BTI on
behalf of the Officer hereby accepts to serve as Interim Chief
Executive Officer with the Company, all in accordance with the
terms and conditions hereof, for a term commencing on June 1, 2009
and terminating on May 31, 2011.
1.2
Position and Duties .
(a) The
Company has by action of its Board of Directors appointed the
Officer to the position of Interim Chief Executive Officer,
reporting to the Board of Directors of the Company, on a consulting
basis.
(b) The
Officer shall be responsible for such duties including, but not
limited to, management, business planning, and marketing
services.
1.3
Performance of Duties .
(a) At
all times prior to the Termination Date, the Officer (i) shall
devote her full business time, energies, best efforts, and
attention to the business of the Company, (ii) shall faithfully and
diligently perform the duties of her responsibilities with the
Company, and (iii) shall do all reasonably in her power to promote,
develop, and extend the business of the Company.
(b) The
Officer shall perform her duties in accordance with all applicable
laws, rules, or regulations that apply to the Company and/or its
business, assets (real or personal), or employees.
(c) During
the term of the Agreement, the Company shall provide the support
services to the Officer, including office space, use of staff and
administrative support, and office supplies.
1.4
Relationship of Parties . The Company and BTI
mutually understand that BTI and the Officer are independent
contractors with respect to the Company, and are not employees of
the Company. The Company, will not provide fringe
benefits, including health insurance benefits, paid vacation, or
any other employee benefit, for the benefit of BTI or the
Officer.
2.1
Monthly Services Payment .
(a) For
so long as the Officer is providing services to the Company, the
Company agrees to pay to BTI, and BTI shall accept from the
Company, for all of the services rendered by the Officer pursuant
to the Agreement, a compensation payment of Eight Thousand Three
Hundred Thirty-Four Dollars ($8,334) per month, payable on the last
day of each month that services are performed.
(b) The
Company’s Board of Directors, or compensation committee of
the Board of Directors (the “Compensation
Committee” ), shall review BTI’s compensation
annually and compensation increases thereon shall be considered and
may be approved, in the sole and unlimited discretion of the
Company’s Board of Directors, depending in part on the
profits and cash flow of the Company. If the
Company’s Board of Directors elects in its discretion to
increase the compensation of BTI at any time or from time to time,
the new compensation rate shall, without further action by BTI or
the Company, be deemed substituted for the amount set forth
above. At such time, the Agreement shall be deemed
amended accordingly (notwithstanding the provisions of Paragraph
7.8 below), and, as so amended, shall remain in full force and
effect.
2.2
Commission Payments . The Company shall
award BTI a monthly commission of 1% payment, not to exceed Five
Thousand ($5,000) per month, of the royalties recognized and earned
by the Company from the sale of its NuroPro and BC SeraPro
diagnostic testing products through license agreements signed
during the term of the Agreement.
(a) The
Company shall pay commission payments to BTI no later than 30 days
after the Company recognizes and earns royalty revenues through the
license agreements.
(b) The
Company shall maintain records in sufficient detail for purposes of
determining the amount of commission. The Company shall
provide to BTI a written accounting that sets forth the manner in
which the commission payment was calculated.
(c) BTI,
or BTI’s agent, shall have the right to inspect the
Company’s records for the limited purpose of verifying the
calculation of the commission payments, subject to such
restrictions as the Company may reasonably impose to protect the
confidentiality of the records. Such inspections shall
be made during reasonable business hours as may be set by the
Company.
(d) If
the Officer dies or becomes disabled and unable to perform the
services as Interim Chief Executive Officer during the term of this
Agreement, BTI shall be entitled to commission payments for the
remainder of the term of the Agreement.
2.3
Bonuses . The Company, in the sole and unfettered
discretion of its Board of Directors or Compensation Committee, may
from time to time award additional cash bonuses to BTI based upon
its measure of the Officer’s performance. Such
bonuses may be awarded in a lump sum or may be conditioned upon the
future performance
2.4
Expenses . Upon submission of appropriate
invoices or vouchers, the Company shall pay or reimburse the
Officer for all reasonable expenses incurred by the Officer in the
performance of her duties hereunder in furtherance of the business
of the Company.
3.1
Termination Upon 30 Days Notice .
(a) Either
party may terminate the Officer’s Agreement for any reason
whatsoever, either with or without cause, upon giving the other
party no less than thirty (30) days prior written notice of such
termination (the “Notice Date” ). The
effective date of a termination pursuant to this Paragraph 3.1
shall be such termination date as stated on the notice, provided
that the termination date can be no earlier than the 31
st day following the day the notice becomes
effective pursuant to Paragraph 5.4 below (the
“Termination Date” ).
3.2
Termination by Mutual Consent . BTI and the
Company may at any time terminate the Agreement by mutual consent
in writing upon the terms and conditions stated in such
writing.
3.3
Termination Upon Death . If the Officer
dies or becomes disabled, the Agreement shall immediately terminate
automatically as of the date of her death or
disability. In such event, the Agreement shall be
treated as if it had terminated under the terms of
Paragraph 3.1 above, with the date of the Officer’s
death or disability serving as both the Notice Date and the
Termination Date.
3.4
Transition . BTI and the Officer shall make a
good faith effort to aid the Company in the transition of
management necessitated by the termination of the
Agreement. To the extent feasible and/or practical, the
Officer shall devote the time and energy necessary to effect said
goal of a smooth transition for the successor chief executive
officer. The compensation payable to BTI by the Company
pursuant to Paragraph 2.1(a) of this contract shall continue
to be paid to BTI during such transition period.
4.1
Disclosure . BTI is
required to disclose any outside activities or interest, including
ownership or participation in the development of prior invention,
that conflict or may conflict with the best interest of the
Company. Prompt disclosure is required if the activity
or interest is related, directly or indirectly, to: any
intellectual property of the Company; a product or product line of
the Company; a manufacturing process of the Company; or any
activity that BTI may be involved with on behalf of the
Company.
4.2
Employees of BTI . BTI employees, if
any, who perform services for the Company under this Agreement, and
the Officer, shall also be bound by the provision of this
Agreement.
5.
PROPRIETARY INFORMATION AND ITEMS
.
5.1
Acknowledgments . BTI acknowledges that (a) the
Officer has or will be afforded access to Proprietary Information
of the Company or its affiliates; (b) public disclosure of such
Proprietary Information could have an adverse effect on the Company
and its affiliates; and (c) the provisions of this Section 5 are
reasonable and necessary to prevent the improper use or disclosure
of such Proprietary Information.
5.2
Non-Disclosure and Non-Use of Proprietary Information
.During the term of this Agreement and for a period of five (5)
years thereafter, BTI covenants and agrees that BTI and the Officer
(a) shall not disclose to others or use for the benefit of
themselves or others, any of the Company’s Propr
