**Exhibit 10.1**

 

**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 Steven B. Rash (the **“Officer”**)is executed this 29th day of December, 2004 but shall be effective for allpurposes as of May 18, 2004 (the **“EffectiveDate”**).

 

# **RECITALS**

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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 the restrictionsapplicable to the stock grants referenced therein and the risks of forfeitureintended 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 Companyhereby employs the Officer, and the Officer agrees to serve the Company, as anofficer of the Company pursuant to the terms of this Agreement.  The Company has by action of its Board ofDirectors appointed the Officer to the position of Chairman/Chief ExecutiveOfficer, 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

 

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pursuant to 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 timesprior to the Termination Date, the Officer (i) shall devote his fullbusiness time, energies, best efforts, and attention to the business of theCompany, (ii) shall faithfully and diligently perform the duties of hisemployment with the Company, (iii) shall do all reasonably in his power topromote, develop, and extend the business of the Company, and (iv) shallnot enter into the service of, or be employed in any capacity or for anypurpose whatsoever by, any person, firm or corporation other than the Companywithout the prior written 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 Two Hundred Fifty Thousand Dollars ($250,000) per annum, payablesemimonthly.

 

(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.      The Company, in the sole andunfettered discretion of its Board of Directors or Compensation Committee, mayfrom time to time award cash bonuses to the Officer based upon its measure ofOfficer’s performance.  Such bonuses maybe awarded in a lump sum or may be conditioned upon the future performance or

 

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employmentof Officer, in the sole and unfettered discretion of the Board of Directors ofthe Company.

 

2.3                                 Expenses.      Upon submission of appropriateinvoices or vouchers, the Company shall pay or reimburse the Officer for allreasonable expenses incurred by the Officer in the performance of his dutieshereunder in furtherance of the business of the Company.

 

2.4                                 Benefits.       The Company extends to theOfficer the right to participate in whatever employee benefit plans (excludingany employee benefit plan covered separately in this Agreement) may be ineffect from time to time, to the extent the Officer is eligible under the termsof the plans.  However, no employeebenefits other than those specifically conferred by the terms of this Agreementhave been 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 Executive 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 FiftyThousand (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 foregoing condition,the Officer shall have no right to, and the Officer hereby agrees that he shallnot, sell, pledge, assign, hypothecate, encumber, give, grant or otherwisetransfer such Restricted Stock or alienate his then-current or expected futurerights to such Restricted Stock, and the certificates representing all of suchRestricted Stock shall prominently bear appropriate legends reflecting theserestrictions and the Company’s stock register shall likewise reflect theserestrictions.

 

(ii)                                  Upon issuance of the Restricted Stock, exceptfor the

 

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restrictionsset forth in this Paragraph 2.5, the Officer shall have all rights of ashareholder of the Company with respect to such Restricted Stock including theright to vote such Restricted Stock and to receive all dividends and otherdistributions paid with respect to such Restricted Stock; provided, however,dividends, if any, paid or distributed on the Restricted Stock shall not bepaid by the Company to the Officer unless and until such time as the RestrictedStock 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 Ira Goldknopf, 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 the shareholdersof the Company approving a plan of complete or substantially completeliquidation 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 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

 

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contestor (b) an actual or threatened solicitation of proxies or consents by oron behalf of a person other than the Board) shall be, for purposes of thisAgreement, considered as though such person were a member of 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.                         The Company may withhold from any amountspayable under this Agreement any and all federal, state, city, or other taxesor other amounts required to be withheld by 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 pursuantto Paragraph 5.4 below (the **“Termination Date”**).

 

(b)                                 Until the expiration of the contract on May 17,2009

 

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(**“Transition Period”**), unless terminated for“Cause” as defined in Paragraph 3.4 or if the Officer resigns from hisposition or duties, the Officer will continue to be considered as an employeeof the Company only for the purpose of receiving the compensation and benefitsawarded 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 Termination dateand will not be entitled to receive or participate in any bonus, incentive, orbenefit program, involving stock or otherwise, that is established followingthe Termination Date.

 

3.2                                 Termination by Mutual Consent.   The Officer and theCompany may at any time terminate the employment of the Officer under thisAgreement by mutual consent in writing upon the terms and conditions stated insuch writing.

 

3.3                                 Termination Upon Death.    If the Officer dies, hisemployment shall immediately terminate automatically as of the date of hisdeath.  In such event, the Officer shallbe treated as if he had terminated his employment with the Company under theterms of Paragraph 3.1 above, with the date of his death serving as boththe Notice Date and the Termination Date.

 

3.4                                 Termination for Cause.    This Agreement may beterminated for Cause by either party for the following reasons, only:

 

**3.4.a.1**            Commission of a criminal offense by eitherparty in the course of performance of the Agreement shall entitle the other toeffect immediate termination upon giving written 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;

 

**3.4.a.3**            The election of one party (the **“aggrieved party”**) to terminate thisAgreement upon (1) the actual breach or actual default by the other partyin the reasonable performance of the defaulting party’s obligations and

 

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dutiesunder this Agreement and (2) the failure of the defaulting party to curethe same within fifteen (15) days (the “cure period”) after receipt by thedefaulting party of a good faith written notice from the aggrieved partyspecifying such breach or default and (3) provided that the defaultingparty has not cured the default and the aggrieved party may then give writtennotice to defaulting party of his or its election to terminate ten (10) daysafter expiration of the cure period.

 

3.5                                 Transition.    Officer shall make a good faith effort to aid inthe transition of management necessitated by the termination of his employmentpursuant to this Agreement.  To theextent feasible and/or practical, Officer shall devote the time and energynecessary to effect said goal of a smooth transition for the successor chairmanand/or chief executive officer.  Thesalary payable to Officer by the Company pursuant to Paragraph 2.1(a) ofthis contract shall continue to be paid to Officer during such transitionperiod.

 

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

 

4.1                                 Acknowledgments.    The Officer acknowledgesthat (a) the Officer has or will be afforded access to ProprietaryInformation of the Company or its affiliates; (b) public disclosure ofsuch Proprietary Information could have an adverse effect on the Company andits affiliates; and (c) the provisions of this Section 4 arereasonable and necessary to prevent the improper use or disclosure of suchProprietary Information.

 

4.2                                 Non-Disclosure and Non-Use of ProprietaryInformation.    Duringthe Officer’s employment by the Company and for a period of five (5) yearsthereafter, the Officer covenants and agrees that the Officer (a) shallnot disclose to others or use for the benefit of himself or others, any of theCompany’s Proprietary Information, except that the Officer may disclose suchinformation (i) in the course of and in furtherance of the Officer’semployment with the Company to the extent necessary for the benefit of theCompany, (ii) with the prior specific written consent of the Board ofDirectors of the Company, or (iii) to the extent required by law; and (b) shalltake all measures reasonably necessary to preserve the confidentiality of allProprietary Information of the Company known to the Officer, shall cooperatefully with the Company’s or its affiliates’ enforcement of measures intended topreserve the confidentiality of all Proprietary Information, and shall notifythe Board of Directors immediately upon receiving any request for, or makingany disclosure of, any Proprietary Information from or to any person other thanan officer or employee of the Company or of one of its affiliates who has aneed to know such information.

 

4.3                                 Proprietary Information.    For purposes of thisAgreement, **“Proprietary Information”**means trade secrets, secret or confidential information or knowledge pertainingto, or any other nonpublic information pertaining to the business or affairs ofthe Company or any of its affiliates, including without limitation, medicalimaging software programs (including source code and object code) and designdocumentation; identities, addresses, backgrounds, or other informationregarding licensors, suppliers,

 

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customers,sublicensees, potential customers and sublicensees, employees, contractors, orsources of referral; marketing plans or strategies, business or personnel acquisitionplans; pending or contemplated projects, ventures, or proposals; financialinformation (including historical financial statements; financial, capital, oroperating budgets, plans or projections; historical or projected sales,royalties and license fees, and the amounts of compensation paid to employeesand contractors); trade secrets, know-how, technical processes, or researchprojects; and notes, analysis, compilations, studies, summaries, and othermaterial prepared by or for the Company containing or based, in whole or inpart, on any information included in the foregoing, except information that isgenerally known in the industry (other than as a result of a disclosure by theOfficer).

 

4.4                                 Proprietary Items.     Upon termination orexpiration of the Officer’s employment by the Company for any reason or byeither party, or upon the request of the Company during such tenure, theOfficer will immediately return to the Company all Proprietary Items in theOfficer’s possession or subject to the Officer’s control, and the Officer shallnot retain any copies, abstracts, sketches, or other physical embodiment of anyProprietary Items.  For purposes of thisAgreement, **“Proprietary Items”**means all documents and tangible items (including all customer lists,memoranda, books, papers, records, notebooks, plans, models, components,devices, or computer software or code, whether embodied in a disk or in anyother form) provided to the Officer by the Company, created by the Officer, orotherwise coming into the Officer’s possession for use in connection with isengagement with the Company or otherwise containing Proprietary Information(whether provided or created during the term of this agreement or priorthereto).

 

4.5                                 Ownership Rights.    The Officer recognizesthat, as between the Company and the Officer, all of the ProprietaryInformation and all of the Proprietary Items, whether or not developed by theOfficer, are the exclusive property of the Company.  The Officer agrees that allintellectual property of every kind, including without limitation copyright,patent, trademarks, trade secrets, and similar rights, created or developed orrealized in connection with the Officer’s performance of any duties orfunctions 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 recognizesthat, should a dispute or controversy arising from or relating to this portionof the Agreement (Section 4) be submitted for adjudication to anycourt, arbitration panel, or other third party, the preservation of the secrecyof Proprietary Information may be jeopardized. The Officer agrees that he will use best efforts to ensure that allpleadings, documents, testimony, and records relating to any such adjudicationwill be maintained in secrecy.

 

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

 

5.1                                 Non-Interference.    During the Officer’semployment with the Company and for a period of five (5) years followingtermination or expiration of such tenure, the Officer covenants and agrees thatthe Officer shall not, directly or indirectly, for the benefit of the Officeror another (a) persuade or attempt to persuade any employee, independentcontractor, consultant, agent, supplier, licensor, or distributor of theCompany or of any affiliate of the Company to discontinue such person’srelationship with the Company or the affiliate; (b) hire away or solicitto hire away from the Company or from any of its affiliates any employee; (c) otherwiseengage or seek to engage any employee or independent contractor of the Companyor of any of its affiliates in a business relationship that would or mightconflict with such employee’s or independent contractor’s obligations to theCompany or affiliate; (d) interfere with the Company’s or any of itsaffiliates’ relationship with any governmental or business entity, includingpayor, supplier, licensor, lender, or contractor of the Company or theaffiliate; or (e) disparage the Company or any of its affiliates or any ofthe shareholders, directors, officers, employees, or agents of any of them.

 

5.2                                 Cooperation.    During the Officer’s Employment with the Companyand for a period of five (5) years following the termination or expirationof such tenure, the Officer agrees to cooperate with the Company and itsaffiliates in connection with any litigation or investigation involving theCompany or any of its affiliates or any of the shareholders, directors,officers, employees, or agents of any of them and shall furnish suchinformation and assistance as may be lawfully requested by the Company.

 

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

 

During the Officer’semployment 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 is severable.

 

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

 

7.1                                 Indemnification.    TheCompany hereby agrees to indemnify and hold harmless the Officer from andagainst any and all losses, claims, damages, expenses

 

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and/orliabilities which may incur arising out of the normal course of business incarrying out the duties and responsibilities associated with the position ofChief Executive Officer arising from the Officer’s reliance upon and approveduse of information, reports and data furnished by and representations made bythe Company, with respect to itself, where the Officer in turn distributes andconveys such information, reports and data to the public in the normal courseof representing the Company.  Suchindemnification shall include, but not be limited to, expenses (including allattorney’s fees), judgments, and amounts paid in settlement actually andreasonably incurred by Officer in connection with an action, suit or proceedingbrought against the Company or Officer.

 

7.2                                 Injunctive Relief.    The Officer acknowledgesthat the injury that would be suffered by the Company as a result of a breachof the provisions of this Agreement would be largely irreparable and that anaward of monetary damages to the Company for such a breach would be aninadequate remedy.  The Company will havethe right, in addition to any other rights it may have (including the right todamages that the Company may suffer), to obtain injunctive relief to restrainany breach or threatened breach or otherwise to specifically enforce anyprovision of this Agreement, and the Company will not be obligated to post bondor other security in seeking such relief. The Officer agrees to request neither bond nor security in connectionwith any such injunction.  The Officeragrees that if he breaches this Agreement, the Officer shall be liable for anyattorney’s fees and costs incurred by the Company in enforcing its rights underthis 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 shallinure to the benefit of, and shall be binding upon, the parties hereto andtheir respective successors, assigns, heirs, and legal representatives.  Insofar as the Officer is concerned, thiscontract, being personal, cannot be assigned other than by will or the laws ofdescent and distribution.

 

7.5                                 Notices.     All notices and other communications which arerequired or permitted hereunder shall be in writing and shall be sufficient ifmailed by certified mail, postage prepaid, and shall be effective three daysafter such mailing or upon delivery, 

 

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whicheveris earlier, to the following addresses or such other address as the appropriateparty may advise each other party hereto:

 

Ifto the Officer:

 

StevenRash

10Spiceberry Place

TheWoodlands, TX 77382

 

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 containsthe entire agreement between the parties hereto and supersedes all prioragreements and understandings, oral or written, between the parties hereto withrespect to the subject matter hereof including, without limitation, theOriginal Agreement.

 

7.7                                 No Third-Party Beneficiaries.    This Agreement shall notconfer any rights or remedies upon any person other than the Company, theOfficer, and their respective successors and permitted assigns, other than asexpressly set forth in this Agreement.

 

7.8                                 Amendments and Waivers.    Except as set forth inParagraph 2.1(b) above, this Agreement may not be modified or amendedexcept by an instrument or instruments in writing signed by the party againstwhom enforcement of any such modification or amendment sought.  Either party hereto may, by an instrument inwriting, waive compliance by the other party with any term or provision of thisAgreement on the part of such other party hereto to be performed or compliedwith.  The waiver by any party hereto ofa breach of any term or provision of this Agreement shall not be construed as awaiver of any subsequent breach.  Nodelay or failure by either party in exercising any right under this Agreement,and no partial or single exercise of that right, shall constitute a waiver ofthat or any other right.

 

7.9                                 Headings.    The paragraph headings contained in this Agreementare for reference purposes only and shall not be deemed to be a part of thisAgreement or to control or affect the meaning or construction of any provisionof this Agreement.

 

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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”jurisdiction shall mean a court of forum from which no appeal may be taken orfrom whose decree, decision, judgment, or order no appeal is taken orprosecuted.

 

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 questions officerhad about the agreement and received satisfactory answers to all suchquestions; and (d) understands officer’s rights and obligations under theagreement.

 

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IN WITNESS WHEREOF, the parties hereto have duly executed thisEmployment Agreement as of the date first written above but to be effective asof the Effective Date.

 

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

 

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