f8k020310ex10i_bioneutral.htm


     

    
      Exhibit
10.1

       

       

      First
Amendment to the Advisory Agreement by and Between

      Chertoff
Group, L.L.C. and BioNeutral Group, Inc.

      


       

      This
First Amendment to the Advisory Agreement dated 26 August 2009 (the
“Amendment”), dated this 3rd day of February 2010 (the “Amendment Effective
Date”), by and between Chertoff Group, L.L.C. (“Advisor”), a Delaware limited
liability company, and BIONEUTRAL GROUP, INC. (the “Company”), a Nevada
corporation; together “the Parties”.

       

      WHEREAS
Advisor and Company entered into an Advisory Agreement on 26 August 2009 (the
“Agreement”); and

       

      WHEREAS,
Advisor provides certain professional services (the “Services”) to Company as
set forth in Appendix A of the Agreement; and

       

      WHEREAS,
Company engaged Advisor to perform the Services, for good and valuable
consideration, as more fully described in Appendix A; and

       

      WHEREAS
both parties now wish to amend portions of Appendix A to reflect a modified
scope of Services, Personnel, and Fees and to amend certain provisions of the
Agreement.

       

      NOW,
THEREFORE, in consideration of the mutual promises and covenants hereinafter set
forth, and for such other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereby agree as follows:

       

      1.           Appendix
A to the Agreement is hereby amended by deleting the section entitled “Services”
in its entirety and substituting the following therefor:

      


      Services

       

      Advisor
hereby agrees that during the Term of Services (as defined below) to consult
with the board of directors of Company (the “Board”) and
management of Company and its subsidiaries in such manner as may be reasonably
requested by Company on the following matters:

       

      
        	
                ·  

              	
                Consult
      with BioNeutral’s Chief Scientific Officer (CSO) and advise the Company
      regarding the EPA submission process for Ygiene to attempt to prevent any
      delays on the Ygiene antimicrobial formula
  selected;

              


      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities in the household and consumer area for
      YgieneTM and OgieneTM and such opportunities where the Company should focus
      its efforts;

              


      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities in the federal and civilian medical and
      healthcare space for YgieneTM and OgieneTM and such opportunities where the
      Company should focus its efforts;

              


      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities in the homeland security and defense
      markets for YgieneTM and OgieneTM and such opportunities where the Company
      should focus its efforts;

              


      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities in the regulated and non-regulated
      areas for YgieneTM and OgieneTM and such opportunities where the Company
      should focus its efforts;

              


      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities and licensing agreements with large
      companies in the household and healthcare market areas for YgieneTM and
      OgieneTM and such opportunities where the Company should focus its
      efforts;

              


      

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      
        	
                ·  

              	
                Identification
      of specific business opportunities for domestic vs. foreign markets and
      such opportunities where the Company should focus its
    efforts;

              


      

       

      
        	
                ·  

              	
                Development
      of a strategy for commercialization of YgieneTM and OgieneTM and other
      Company products in international
markets;

              


      

       

      
        	
                ·  

              	
                Recommendation
      of an action plan for moving forward with respect to each of the foregoing
      items; and

              


      

       

      
        	
                ·  

              	
                Other
      advisory services that may be mutually agreed upon in
    writing.

              


      

       

      2.           Appendix
A to the Agreement is hereby amended by deleting the section entitled
“Personnel” in its entirety and substituting the following
therefor:

       

      Personnel

       

      During
the Term of Services, Advisor (i) shall make the Honorable Jeffrey W. Runge, MD,
available for 40 hours of service per month to provide the Services, and (ii)
shall, at the request of the Company, provide and devote to the performance of
the Services such employees, agents and representatives of Advisor, and for such
time, as Advisor shall deem appropriate for performance of the Services required
hereunder.

      


      In the
event Dr. Runge is unable or unavailable to provide the Services contemplated
hereunder, Advisor shall provide a qualified individual to provide such
Services, who must be reasonably satisfactory to the Company.  If
Advisor does not provide a qualified replacement reasonably acceptable to the
Company within a reasonable period of time, Company may, subject to the terms of
this Agreement, engage another person not affiliated with Advisor to provide
such Services and deduct the costs of such person’s compensation from Advisor’s
compensation under the Agreement.

      


      Company
acknowledges and agrees that (i) each member or employee of Advisor providing
any of the Services hereunder is doing so as, as applicable, as a member and/or
employee of Advisor and not as an employee or officer of Company or its
affiliates; (ii) no member or employee of Advisor shall owe any fiduciary or
other duty to Company or its subsidiaries and Company hereby releases and agrees
not to pursue any claim to the contrary and agrees to cause its subsidiaries to
do likewise; and (iii) neither Company nor any of its subsidiaries or any of
their stockholders, affiliates, directors, officers or employees will represent
or imply that any member or employee of Advisor is providing services to Company
and its subsidiaries in any capacity other than as a member or employee of
Advisor; it being understood and agreed that Company may refer to Dr. Runge as
Senior Medical Advisor to the Company.

      


      3.           Effective
December 1, 2009, Appendix A to the Agreement is hereby amended by deleting the
paragraph entitled “Consulting Fee” that is part of the Section entitled “Fees”
and substituting the following therefor:

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      Consulting Fee: On
the first day of each month during the Term (each, a “Payment Date”)
commencing January 1, 2010, Company shall pay to Advisor (regardless of whether
an invoice has been prepared or received) a monthly advisory fee of $28,000 in
immediately available funds (the “Advisory
Fee”).  In the event that, (i) Dr. Runge devotes more than 40
hours of services in any particular month or (ii) or any other person associated
with Advisor provides services during any particular month, the Company shall
pay Advisor at its then in effect normal hourly rate for such
services.  Advisor shall deliver to the Company, by not later than the
thirtieth (30th) day of each month, a reasonably detailed description (including
the number of hours) of the Services provided during the prior month during the
Term.

       

      4.           Appendix
A to the Agreement is hereby amended by deleting the Section entitled “Term of
Services” in its entirety and substituting the following therefor:

      


      The Term
of Services will be the 12-month period commencing upon the execution of this
Agreement.  The parties agree that at or prior to the end of the
initial Term of Services, they will review the terms of this Appendix A to
determine whether changes or modifications are required.  In the event
neither party request modifications to this Appendix A at the end of the initial
or any extended Term of Services, the Term of Services shall be extended for an
additional 12 months.  If either party requests modifications to this
Appendix A, the parties agree to engage in good faith negotiations regarding
such changes.  In the event that there is a request for, but the
parties are unable to agree to, modifications to this Appendix A, the terms of
this Appendix A in effect immediately prior to such request shall continue to
apply during the Term.

      


      5.           Section
9 of the Agreement is hereby amended and restated in its entirety as
follows:

      


      “9.           WORK
PRODUCT.

      


      Upon full
payment of all amounts due to Advisor in connection with this Agreement, all
right, title and interest in any deliverables Advisor has provided to Company
will become Company’s sole and exclusive property, except as set forth
below.  Advisor will retain sole and exclusive ownership of all right,
title and interest in its work papers, proprietary information, processes,
methodologies and know how, including such information as existed prior to,
during or after the delivery of the Services and anything which Advisor may
discover, create or develop during the provision of the Services.  To
the extent that any of the items described in the preceding sentence are
included in, or are necessary for the use of, any of the deliverables provided
to Company, Advisor hereby grants to Company a non-exclusive, perpetual,
irrevocable, paid-up, royalty-free, transferable license, with the right to
sublicense, subject to the terms of this Agreement, to use, copy,
distribute, modify and otherwise exploit any such items in connection with
Company's use of such deliverables.”

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      6.           The
Company agrees that no event that has occurred on or prior to the Amendment
Effective Date constitutes “Cause”, as defined in Section 4(b) of the Agreement,
and the Company hereby waives any right it may have to claim that any event
occurring on or before the Amendment Effective Date constitutes “Cause” for
purposes of the Agreement.   Advisor hereby waives any right it
may have had to claim “Good Reason” as a result of the Company’s failure to pay
the full amount of the November 2009 Advisory Fee, the Company’s failure to pay
the December, 2009 Advisory Fee, or the Company’s failure to deliver the Equity
Award prior to September 30, 2009 or any other event that would constitute “Good
Reason” under Section 4(b) of the Agreement of which Advisor has actual
knowledge on the Amendment Effective Date.

      


      7.           Except
as specifically set forth herein, the provisions of the Agreement shall continue
in full force and effect in accordance with their terms.

      


      * * * * *
* * * * *

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Amendment as of the day and year first set forth
above.

      
 

      
        	
                Company

              	 	
                Advisor

                 

              	 
	
                By:                     

              	 	
                By:                     

              	 
	
                Print
      Name:   Stephen J.
      Browand

              	 	
                Print
      Name:                                                                    

              	 
	
                Title:  Chief Executive
      Officer

              	 	
                Title:                                                                    

              	 


      

       

      
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