**Exhibit 10.2**

 

**AMENDED AND RESTATEDEMPLOYMENT AGREEMENT**

 

ThisAmended and Restated Employment Agreement (the **“Agreement”**) by and between Power 3 Medical Products, Inc.,a New York corporation (the **“Company”**),and Ira L. Goldknopf, Ph.D. (the **“Officer”**)is executed this 29th day of December, 2004 but shall be effectivefor all purposes as of May 18, 2004 (the **“EffectiveDate”**).

 

# **RECITALS**

#  

WHEREAS,the Company and the Officer previously entered into that certain EmploymentAgreement dated as of May 18, 2004 (the **“OriginalAgreement”**);

 

WHEREAS,the Company and the Officer have determined that the Original Agreement did notaccurately reflect the parties’ mutual intent in that it did not correctly setforth the parties’ mutual understanding and agreement regarding therestrictions applicable to the stock grants referenced therein and the risks offorfeiture intended to be applicable to such shares of stock; and

 

WHEREAS,the Company and the Officer desire to enter into this Agreement to reform theprovisions of the Original Agreement to reflect the parties’ mutualunderstanding and intent and to restate the Original Agreement, as amended, inits entirety.

 

NOW,THEREFORE, in consideration of the premises and of the covenants and agreementsherein provided, the parties hereto agree as follows:

 

**1.****                                     ****EMPLOYMENT TERMS**

 

1.1                                   Term.  The Company hereby employs theOfficer, and the Officer hereby accepts employment with the Company, all inaccordance with the terms and conditions hereof, for a term commencing on May 18,2004 and terminating on May 17, 2009. However, the Officer shall be considered to be employed by the Companybeyond the Termination Date for purposes of receiving certain benefitsconferred under this Agreement, as described in Paragraph 3.1 hereof.

 

1.2                                 Position and Duties.

 

(a)                                   The Company hereby employsthe Officer, and the Officer agrees to serve the Company, as an officer of theCompany pursuant to the terms of this Agreement.  The Company has by action of its Board ofDirectors appointed the Officer to the position of Chief Scientific Officer,however it may, in the sole and unfettered discretion of the Board ofDirectors, amend the Officer’s title and/or duties and responsibilities,provided that the Officer remains an officer of the Company pursuant to

 

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the terms of this Agreement.

 

(b)                                  The Officer shall be responsible for suchduties as are commensurate with the office in which he serves and as may fromtime to time be assigned to the Officer by the Company’s Board of Directors.

 

1.3                                 Performance of Duties.

 

(a)                                   At all times prior to theTermination Date, the Officer (i) shall devote his full business time,energies, best efforts, and attention to the business of the Company, (ii) shallfaithfully and diligently perform the duties of his employment with theCompany, (iii) shall do all reasonably in his power to promote, develop,and extend the business of the Company, and (iv) shall not enter into theservice of, or be employed in any capacity or for any purpose whatsoever by,any person, firm or corporation other than the Company without the priorwritten consent of the Board of Directors of the Company.

 

(b)                                  The Officer shall perform his duties inaccordance with all applicable laws, rules, or regulations that apply to theCompany and/or its business, assets (real or personal), or employees.

 

**2.****                                     ****COMPENSATION****.**

 

2.1                                 Salary.

 

(a)                                  For so long as Officer is employed by theCompany, the Company agrees to pay to the Officer, and the Officer shall acceptfrom the Company, for all of his services rendered pursuant to this Agreement,a salary of One Hundred Twenty Five Thousand Dollars ($125,000) per annum,payable semimonthly for the period from May 18, 2004 to December 15,2004 and a salary of One Hundred Thousand Dollars ($100,000) per annum, payablesemimonthly for the period beginning December 16,2004.

 

(b)                                 The Company’s Board of Directors, orcompensation committee of the Board of Directors (the **“Compensation Committee”**), shall review theOfficer’s salary annually and merit increases thereon shall be considered andmay be approved, in the sole and unlimited discretion of the Company’s Board ofDirectors, depending in part on the profits and cash flow of the Company.  If the Company’s Board of Directors elects inits discretion to increase the salary of the Officer at any time or from timeto time, the new salary rate shall, without further action by the Officer orthe Company, be deemed substituted for the amount set forth above.  At such time, this Agreement shall be deemedamended accordingly (notwithstanding the provisions of Paragraph 7.8 below),and, as so amended, shall remain in full force and effect.

 

2.2                                 Bonuses.   TheCompany, in the sole and unfettered discretion of

 

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itsBoard of Directors or Compensation Committee, may from time to time award cashbonuses to the Officer based upon its measure of Officer’s performance.  Such bonuses may be awarded in a lump sum ormay be conditioned upon the future performance or employment of Officer, in thesole and unfettered discretion of the Board of Directors of the Company.

 

2.3                                 Expenses.   Uponsubmission of appropriate invoices or vouchers, the Company shall pay or reimburse the Officer for all reasonable expensesincurred by the Officer in the performance of his duties hereunder infurtherance of the business of the Company.

 

2.4                                 Benefits.   TheCompany extends to the Officer the right to participate in whatever employeebenefit plans (excluding any employee benefit plan covered separately in thisAgreement) may be in effect from time to time, to the extent the Officer is eligible under the terms of theplans.  However, no employee benefitsother than those specifically conferred by the terms of this Agreement havebeen promised to the Officer in connection with this employment.  The adoption of one or more employee benefitplans, the terms of the plans, and the Officer’s participation in the plans, ifany, are in the sole discretion of the Company and may be changed by theCompany at any time and from time to time.

 

2.5                                 Stock Grant.

 

(a)                                  To induce the Officer to accept the positionof Chief Scientific Officer, and subject to the terms of thisParagraph 2.5, the Officer is hereby granted by the Company, effectiveupon the Effective Date of this Agreement, Thirteen Million Two Hundred Fifty Thousand(13,250,000) shares of the Company’s common stock (the **“Common Shares”**) and One Million FiveHundred Thousand (1,500,000) shares of Series B preferred stock to bedesignated by the Company (the **“Series BShares”**; and collectively with the Common Shares, the **“Restricted Stock”**).  The grant of the Restricted Stock shall besubject to the following terms and conditions:

 

(i)                                     If at any time before May 18, 2006, theOfficer’s employment with the Company shall cease or terminate for any reason,including but not limited to, termination by reason of **[death or]** disability, termination by theCompany with or without cause and whether or not in breach of the Agreement, ortermination by the Officer for any reason, voluntarily or otherwise, then theOfficer shall forfeit all of such Restricted Stock to the Company, and theOfficer shall have no claim or right, either express or implied, against theCompany for any compensation, payment or benefit in lieu of the RestrictedStock so forfeited or otherwise.  Inaddition, unless and until the Officer’s rights in the foregoing RestrictedStock become nonforfeitable by virtue of the satisfaction of the foregoingcondition, the Officer shall have no right to, and the Officer hereby agreesthat he shall not, sell, pledge, assign, hypothecate, encumber, give, grant orotherwise transfer such Restricted Stock or alienate his then-current orexpected future rights to such Restricted Stock, and the certificatesrepresenting all of such Restricted Stock shall prominently bear appropriatelegends reflecting these

 

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restrictionsand the Company’s stock register shall likewise reflect these restrictions.

 

(ii)                                  Upon issuance of the Restricted Stock, exceptfor the restrictions set forth in this Paragraph 2.5, the Officer shallhave all rights of a shareholder of the Company with respect to such RestrictedStock including the right to vote such Restricted Stock and to receive alldividends and other distributions paid with respect to such Restricted Stock;provided, however, dividends, if any, paid or distributed on the RestrictedStock shall not be paid by the Company to the Officer unless and until suchtime as the Restricted Stock becomes nonforfeitable.

 

(iii)                               In the event of a Change in Control (asherein defined), the Company may waive in whole or in part any and allremaining restrictions on the Restricted Stock. For purposes hereof, a Change of Control shall mean, and shall be deemedto have occurred:

 

(A)                              if any person, other than any benefit plan ofthe Company or the Officer and Steven B. Rash, as holders of the Series BPreferred Stock, directly or indirectly, becomes the beneficial owner (asdefined in Section 13(d) of the Securities Exchange Act of 1934, asamended) of securities representing 51% or more of the combined voting power ofthe Company’s then-outstanding securities, but excluding any such acquisitionpursuant to a merger, consolidation or similar business combination involvingthe Company; or

 

(B)                                upon the consummation of a merger,consolidation, or similar business combination involving the Company, otherthan any such transaction which results in at least 75% of the total votingpower represented by the voting securities of the surviving entity (or theparent entity thereof) outstanding immediately after such transaction beingbeneficially owned by at least 75% of the holders of the outstanding votingsecurities of the Company immediately prior to the transaction with the votingpower of each such continuing holder relative to other such continuing holdersnot being substantially altered in the transaction; or

 

(C)                                upon the Board of Directors or theshareholders of the Company approving a plan of complete or substantiallycomplete liquidation of the Company; or

 

(D)                               upon the consummation of the sale, lease, ordisposition by the Company of 50% or more of the total assets of the Company inone or a series of related transactions (provided that a license, sublicense orsimilar transaction involving the Company’s intellectual property rights shallnot be considered as a Change of Control); or

 

(E)                                 upon the individuals who constitute the Boardas of the Effective Date (the **“IncumbentBoard”**) ceasing for any reason to constitute at least a majority ofthe members of the Board, provided that any person becoming a director afterthe Effective Date whose election, or nomination for election by the

 

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Company’sshareholders, was approved by a vote of at least two-thirds of the directorsthen comprising the Incumbent Board (other than any individual whose initialassumption of office occurs as a result of either (a) an actual orthreatened election contest or (b) an actual or threatened solicitation ofproxies or consents by or on behalf of a person other than the Board) shall be,for purposes of this Agreement, considered as though such person were a memberof the Incumbent Board.

 

(v)                                 The Common Shares shall have demandregistration rights or piggyback registration rights (neither of which,however, shall be effective unless and until, after May 18, 2006, theOfficer’s rights to such shares have ceased to be subject to the risks offorfeiture as provided herein).

 

(b)                                 The Officer agrees to pay in a timely mannerdeemed suitable by the Company, and to indemnify and hold harmless the Companyfrom, any and all taxes (including all penalties and interest, if any,thereon), resulting from the grant and/or transfer of the above-referencedRestricted Stock for which ultimate responsibility is assigned to or assertedagainst the Officer under applicable law. For purposes of this provision, all withholding obligations of theCompany in respect of the aforementioned taxes (including any and all taxes,penalties and interest imposed on or asserted against the Company for failureto properly withhold and remit any such amounts in a timely manner) shall beconsidered the responsibility of the Officer and, accordingly, the Officeragrees to pay in a timely manner deemed suitable by the Company, and toindemnify and hold harmless the Company from, any and all of such obligations.

 

2.6                                 Vacation; Sick Leave.   The Company’s vacation and sick leave policyhas been established by the Company and may be changed by the Company at anytime and from time to time.  Said policyis published in separate data files accessible to the Officer.  The Officer will not be entitled to receivepayment for any unused sick leave either during employment or upon terminationof employment.

 

2.7                                 Withholding.   TheCompany may withhold from any amounts payable under this Agreement any and allfederal, state, city, or other taxes or other amounts required to be withheldby any applicable law.

 

**3.****                                     ****TERMINATION****.**

 

3.1                                 Termination Upon 30 Days Notice.

 

(a)                                  Either party may terminate the Officer’semployment under this Agreement for any reason whatsoever, either with orwithout cause, upon giving the other party no less than thirty (30) days priorwritten notice of such termination ( the **“NoticeDate”**).  The effective date ofa termination pursuant to this Paragraph 3.1 shall be such termination date asstated on the notice, provided that the termination date can be no earlier thanthe 31st day following the day the notice becomes effective pursuant

 

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toParagraph 5.4 below (the **“Termination Date”**).

 

(b)                                 Until the expiration of the contract on May 17,2009 (**“Transition Period”**), unlessterminated for “Cause” as defined in Paragraph 3.4 or if the Officerresigns from his position or duties, the Officer will continue to be consideredas an employee of the Company only for the purpose of receiving thecompensation and benefits awarded in Paragraphs 2.1, 2.2, and 2.4 hereof.  More specifically, for the duration ofTransition Period the Officer (i) shall continue to receive his salary atthe rate in effect as of the Notice Date, (ii) shall continue to beconsidered an employee of the Company for purposes of determining eligibilityto receive any contingent or deferred bonuses awarded to the Officer prior tothe Termination Date, (iii) shall continue to be considered an officer ofthe Company for purposes of vesting in any stock options granted to Officer(but not for purposes of the forfeiture restrictions applicable to theRestricted Stock as set forth in Paragraph 2.5), and (iv) shall, tothe extent allowed by such plan, remain eligible to participate in any benefitplan of the Company in which the Officer participates as of the Notice Date.

 

(c)                                  Notwithstanding any provision herein to thecontrary, however, the Officer will not be entitled to act as, or representhimself to be, an officer or employee of the Company following the Terminationdate and will not be entitled to receive or participate in any bonus, incentive,or benefit program, involving stock or otherwise, that is established followingthe Termination Date.

 

3.2                                 Termination by Mutual Consent.   The Officer and the Company may at any timeterminate the employment of the Officer under this Agreement by mutual consentin writing upon the terms and conditions stated in such writing.

 

3.3                                 Termination Upon Death.   If the Officer dies, his employment shallimmediately terminate automatically as of the date of his death.  In such event, the Officer shall be treatedas if he had terminated his employment with the Company under the terms ofParagraph 3.1 above, with the date of his death serving as both the NoticeDate and the Termination Date.

 

3.4                                 Termination for Cause.   This Agreement may be terminated for Cause byeither party for the following reasons, only:

 

**3.4.a.1**            Commissionof a criminal offense by either party in the course of performance of theAgreement shall entitle the other to effect immediate termination upon givingwritten notice;

 

**3.4.a.2****           **If either party becomes insolvent or makes ageneral assignment for the benefit of creditors or if petition in bankruptcy isfiled against the defaulting party and is not discharged or disputed withinfive (5) working days of such filing or of the agent is adjudicatedbankrupt or insolvent;

 

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**3.4.a.3**            Theelection of one party (the **“aggrieved party”**)to terminate this Agreement upon (1) the actual breach or actual defaultby the other party in the reasonable performance of the defaulting party’sobligations and duties under this Agreement and (2) the failure of thedefaulting party to cure the same within fifteen (15) days (the “cure period”)after receipt by the defaulting party of a good faith written notice from theaggrieved party specifying such breach or default and (3) provided thatthe defaulting party has not cured the default and the aggrieved party may thengive written notice to defaulting party of his or its election to terminate ten(10) days after expiration of the cure period.

 

3.5                                 Transition.   Officershall make a good faith effort to aid in the transition of managementnecessitated by the termination of his employment pursuant to thisAgreement.  To the extent feasible and/orpractical, Officer shall devote the time and energy necessary to effect saidgoal of a smooth transition for the successor chief scientific officer.  The salary payable to Officer by the Companypursuant to Paragraph 2.1(a) of this contract shall continue to bepaid to Officer during such transition period.

 

**4.****                                     ****PROPRIETARY INFORMATION ANDITEMS****.**

 

4.1                                 Acknowledgments.   The Officer acknowledges that (a) theOfficer has or will be afforded access to Proprietary Information of theCompany or its affiliates; (b) public disclosure of such ProprietaryInformation could have an adverse effect on the Company and its affiliates; and(c) the provisions of this Section 4 are reasonable and necessary toprevent the improper use or disclosure of such Proprietary Information.

 

4.2                                 Non-Disclosure and Non-Use of ProprietaryInformation.   During the Officer’s employment by theCompany and for a period of five (5) years thereafter, the Officercovenants and agrees that the Officer (a) shall not disclose to others oruse for the benefit of himself or others, any of the Company’s ProprietaryInformation, except that the Officer may disclose such information (i) inthe course of and in furtherance of the Officer’s employment with the Companyto the extent necessary for the benefit of the Company, (ii) with theprior specific written consent of the Board of Directors of the Company, or (iii) tothe extent required by law; and (b) shall take all measures reasonablynecessary to preserve the confidentiality of all Proprietary Information of theCompany known to the Officer, shall cooperate fully with the Company’s or itsaffiliates’ enforcement of measures intended to preserve the confidentiality ofall Proprietary Information, and shall notify the Board of Directorsimmediately upon receiving any request for, or making any disclosure of, anyProprietary Information from or to any person other than an officer or employeeof the Company or of one of its affiliates who has a need to know suchinformation.

 

4.3                                 Proprietary Information.   For purposes of this Agreement,  **“ProprietaryInformation”** means trade secrets, secret or confidential informationor knowledge pertaining to, or any other nonpublic information pertaining tothe business or affairs of

 

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theCompany or any of its affiliates, including without limitation, medical imagingsoftware programs (including source code and object code) and designdocumentation; identities, addresses, backgrounds, or other informationregarding licensors, suppliers, customers, sublicensees, potential customersand sublicensees, employees, contractors, or sources of referral; marketingplans or strategies, business or personnel acquisition plans; pending orcontemplated projects, ventures, or proposals; financial information (includinghistorical financial statements; financial, capital, or operating budgets,plans or projections; historical or projected sales, royalties and licensefees, and the amounts of compensation paid to employees and contractors); tradesecrets, know-how, technical processes, or research projects; and notes,analysis, compilations, studies, summaries, and other material prepared by orfor the Company containing or based, in whole or in part, on any informationincluded in the foregoing, except information that is generally known in theindustry (other than as a result of a disclosure by the Officer).

 

4.4                                 Proprietary Items.   Upon termination or expiration of the Officer’semployment by the Company for any reason or by either party, or upon the requestof the Company during such tenure, the Officer will immediately return to theCompany all Proprietary Items in the Officer’s possession or subject to theOfficer’s control, and the Officer shall not retain any copies, abstracts,sketches, or other physical embodiment of any Proprietary Items.  For purposes of this Agreement, **“Proprietary Items”** means alldocuments and tangible items (including all customer lists, memoranda, books,papers, records, notebooks, plans, models, components, devices, or computersoftware or code, whether embodied in a disk or in any other form) provided tothe Officer by the Company, created by the Officer, or otherwise coming intothe Officer’s possession for use in connection with is engagement with theCompany or otherwise containing Proprietary Information (whether provided orcreated during the term of this agreement or prior thereto).

 

4.5                                 Ownership Rights.   The Officer recognizes that, as between theCompany and the Officer, all of the Proprietary Information and all of theProprietary Items, whether or not developed by the Officer, are the exclusiveproperty of the Company.  The Officeragrees that all intellectual property of every kind, including withoutlimitation copyright, patent, trademarks, trade secrets, and similar rights,created or developed or realized in connection with the Officer’s performanceof any duties or functions as an Officer of the Company (collectively, the **“Intellectual Property”**) shall be theexclusive property of the Company and shall constitute ProprietaryInformation.  The Officer hereby assignsunto the Company all rights, title, and interest that the Officer may have tosuch Intellectual Property and each and every derivative work thereof, andagrees to execute, acknowledge, and deliver to the Company as assignment to theCompany of any right, title, or interest of the Officer in any and all suchIntellectual Property, in such form as may be reasonably requested by theCompany.

 

4.6                                 Disputes of Controversies.   The Officer recognizes that, should a disputeor controversy arising from or relating to this portion of the Agreement (Section 4)be submitted for adjudication to any court, arbitration panel, or other thirdparty, the

 

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preservationof the secrecy of Proprietary Information may be jeopardized.  The Officer agrees that he will use bestefforts to ensure that all pleadings, documents, testimony, and recordsrelating to any such adjudication will be maintained in secrecy.

 

**5.****                                     ****NON-INTERFERENCE; COMPLIANCEWITH LAW; COOPERATION**

 

5.1                                 Non-Interference.   During the Officer’s employment with theCompany and for a period of five (5) years following termination orexpiration of such tenure, the Officer covenants and agrees that the Officershall not, directly or indirectly, for the benefit of the Officer or another (a) persuadeor attempt to persuade any employee, independent contractor, consultant, agent,supplier, licensor, or distributor of the Company or of any affiliate of theCompany to discontinue such person’s relationship with the Company or theaffiliate; (b) hire away or solicit to hire away from the Company or fromany of its affiliates any employee; (c) otherwise engage or seek to engageany employee or independent contractor of the Company or of any of itsaffiliates in a business relationship that would or might conflict with suchemployee’s or independent contractor’s obligations to the Company or affiliate;(d) interfere with the Company’s or any of its affiliates’ relationshipwith any governmental or business entity, including payor, supplier, licensor,lender, or contractor of the Company or the affiliate; or (e) disparagethe Company or any of its affiliates or any of the shareholders, directors,officers, employees, or agents of any of them.

 

5.2                                 Cooperation.   Duringthe Officer’s Employment with the Company and for a period of five (5) yearsfollowing the termination or expiration of such tenure, the Officer agrees tocooperate with the Company and its affiliates in connection with any litigationor investigation involving the Company or any of its affiliates or any of theshareholders, directors, officers, employees, or agents of any of them andshall furnish such information and assistance as may be lawfully requested bythe Company.

 

**6.****                                     ****NON-COMPETITION**

 

During the Officer’s employment by theCompany and for a period of two (2) years following the termination orexpiration of such tenure, the officer covenants and agrees to refrain fromcarrying on or engaging in a business similar to that of the Company, and fromsoliciting customers of the Company, within the North America, so long as theCompany carries on a like business therein. It is further stipulated that as forbearance for this contract term,Company has provided Officer with separate and distinct considerationconsisting of 25,000 shares of common stock. Such shares are included in the Common Shares described inParagraph 2.5 and shall be subject to the restrictions set forth therein.

 

Each word of the foregoing provision isseverable.

 

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**7.****                                     ****GENERAL PROVISIONS**

 

7.1                                 Indemnification.   The Company hereby agrees to indemnify andhold harmless the Officer from and against any and all losses, claims, damages,expenses and/or liabilities which may incur arising out of the normal course ofbusiness in carrying out the duties and responsibilities associated with theposition of Chief Scientific Officer arising from the Officer’s reliance uponand approved use of information, reports and data furnished by andrepresentations made by the Company, with respect to itself, where the Officerin turn distributes and conveys such information, reports and data to thepublic in the normal course of representing the Company.  Such indemnification shall include, but notbe limited to, expenses (including all attorney’s fees), judgments, and amountspaid in settlement actually and reasonably incurred by Officer in connectionwith an action, suit or proceeding brought against the Company or Officer.

 

7.2                                 Injunctive Relief.   The Officer acknowledges that the injury thatwould be suffered by the Company as a result of a breach of the provisions ofthis Agreement would be largely irreparable and that an award of monetarydamages to the Company for such a breach would be an inadequate remedy.  The Company will have the right, in additionto any other rights it may have (including the right to damages that theCompany may suffer), to obtain injunctive relief to restrain any breach orthreatened breach or otherwise to specifically enforce any provision of thisAgreement, and the Company will not be obligated to post bond or other securityin seeking such relief.  The Officeragrees to request neither bond nor security in connection with any suchinjunction.  The Officer agrees that ifhe breaches this Agreement, the Officer shall be liable for any attorney’s feesand costs incurred by the Company in enforcing its rights under this Agreement.

 

7.3                                 Essential, Independent, and SurvivingCovenants.

 

(a)                                  The parties agree that the covenants by theOfficer in Sections 4, 5, and 6 are essential elements of this Agreement, andwithout the Officer’s agreement to comply with such covenants, the Companywould not have entered into this Agreement.

 

(b)                                 The Officer’s covenants in Sections 4, 5, and6 are independent covenants and the existence of any claim by the officeragainst the Company under this Agreement or otherwise will not excuse theOfficer’s breach of any covenant in Section 4, 5, or 6.

 

(c)                                  After the Officer’s employment by the Companyis terminated, this Agreement will continue in full force and effect as isnecessary or appropriate to enforce the covenants and agreements of the Officerin Sections 4, 5, and 6.

 

7.4                                 Binding Effect; Benefits; Assignment.   This Agreement shall inure to the benefit of,and shall be binding upon, the parties hereto and their respective successors,assigns, heirs, and legal representatives. Insofar as the Officer is concerned, this contract, being personal,cannot be assigned other than by will or the laws of descent and distribution.

 

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7.5                                 Notices.   Allnotices and other communications which are required or permitted hereundershall be in writing and shall be sufficient if mailed by certified mail,postage prepaid, and shall be effective three days after such mailing or upondelivery, whichever is earlier, to the following addresses or such otheraddress as the appropriate party may advise each other party hereto:

 

Ifto the Officer:

 

Ira L.Goldknopf, Ph.D.

42Bushwood Court

TheWoodlands, TX 77380

 

Ifto the Company:

Power3 Medical Products, Inc.

3400Research Forest Drive

TheWoodlands, TX  77381

 

Copyto:

 

Billingsand Solomon, PLLC

2777Allen Parkway, Suite 460

Houston,TX 77019

ATTN:  Richard P. Martini

 

7.6                                 Entire Agreement.   This Agreement contains the entire agreementbetween the parties hereto and supersedes all prior agreements andunderstandings, oral or written, between the parties hereto with respect to thesubject matter hereof including, without limitation, the Original Agreement.

 

7.7                                 No Third-Party Beneficiaries.   This Agreement shall not confer any rights orremedies upon any person other than the Company, the Officer, and theirrespective successors and permitted assigns, other than as expressly set forthin this Agreement.

 

7.8                                 Amendments and Waivers.   Except as set forth in Paragraph 2.1(b) above,this Agreement may not be modified or amended except by an instrument orinstruments in writing signed by the party against whom enforcement of any suchmodification or amendment sought.  Eitherparty hereto may, by an instrument in writing, waive compliance by the otherparty with any term or provision of this Agreement on the part of such otherparty hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision ofthis Agreement shall not be construed as a waiver of any subsequentbreach.  No delay or failure by eitherparty in exercising any right under this Agreement, and no partial or singleexercise of that right, shall constitute a waiver of that or any other right.

 

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7.9                                 Headings.   Theparagraph headings contained in this Agreement are for reference purposes onlyand shall not be deemed to be a part of this Agreement or to control or affectthe meaning or construction of any provision of this Agreement.

 

7.10                           Construction.   The language used in this Agreement will bedeemed to be the language chosen by the Company and the Officer to expresstheir mutual intent, and no rule of strict construction shall be appliedagainst either party.

 

7.11                           Counterparts.   This Agreement may be executed in two or morecounterparts, each of which shall be deemed an original but all of whichtogether shall constitute one and the same instrument.

 

7.12                           Severability.   If any term or provision of this Agreement isheld or deemed to be invalid or unenforceable, in whole or in part, by a courtof competent jurisdiction, this Agreement shall be ineffective to the extent ofsuch invalidity or unenforceability without rendering invalid or unenforceablethe remaining terms and provisions of this Agreement.

 

7.13                           Expenses and Attorney’s Fees.   In the event that a dispute arises under thisAgreement that results in litigation or arbitration, the prevailing party, asdetermined by the decision of a court or forum of competent and finaljurisdiction, shall be entitled to court costs and reasonable attorney’sfees.  A court or forum of “final” jurisdictionshall mean a court of forum from which no appeal may be taken or from whosedecree, decision, judgment, or order no appeal is taken or prosecuted.

 

7.14                           Governing Law.   This Agreement shall be governed by andconstrued in accordance with the laws of the State of Texas, without regard tothe conflict of laws principles thereof.

 

7.15                           Agreement Preparation.   The Officer acknowledges that this Agreementhas been prepared by counsel for the Company, and the Officer has not relied onany representation made by the Company’s attorneys.  The Officer has engaged an attorney of hischoice to review this agreement on his behalf. By signing this employment agreement, officer is hereby certifying thatofficer (a) received a copy of this agreement for review and study beforeexecuting it; (b) read this agreement carefully before signing it; (c) hadsufficient opportunity before signing the agreement to ask any questionsofficer had about the agreement and received satisfactory answers to all suchquestions; and (d) understands officer’s rights and obligations under theagreement.

 

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INWITNESS WHEREOF, the parties hereto have duly executed this EmploymentAgreement as of the date first written above but to be effective as of theEffective Date.

 

 
|   | **OFFICER:**                         |
|--------|--------------------------------------|
|   | ** **                           |
|   | ** **                           |
|   |                                 |
|   | /s/ Ira L. Goldknopf, Ph.D.          |   |
|   | Ira L.  Goldknopf, Ph.D.        |
|   |                                 |
|   |                                 |
|   |                                 |
|   | **COMPANY:**                         |
|   |                                 |
|   | Power  3 Medical Products, Inc. |
|   |                                 |
|   |                                 |
|   | By:                                  | /s/ Steven B. Rash |   |
|   |                                 |   Steven B. Rash |
|   |                                 |   Chief Executive Officer |
|        |                                      |  |  |  |

 

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