Exhibit 10.11


 


CONSULTING AGREEMENT


 


This Consulting Agreement (this “Agreement”)
dated as of January 5, 2009 (the “Effective Date”),
is made by and between Power Medical Interventions, Inc., a Delaware
corporation (the “Company”), and John P.
Gandolfo (the “Consultant”).


 


WHEREAS, the Company desires to engage the
Consultant to perform consulting services on behalf of the Company and the
Consultant desires to perform such services on the terms and conditions
hereinafter set forth.


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants set forth
herein the parties hereby agree as follows:


 


1.                                      Consulting
Services.


 


(a)                                 The
Company hereby retains the Consultant and the Consultant hereby agrees to
perform such consulting and advisory services as the Company may request on a
non-exclusive basis, including those set forth in Schedule A and such
other services as may be mutually agreed upon by Consultant and the Company
from time to time (the “Consulting Services”).  .


 


(b)                                 The
Consultant agrees to make himself available to render the Consulting Services,
at such times and locations as may be mutually agreed, from time to time as
requested by the Company.  The Consultant
may deliver the Consulting Services over the telephone, in person or by written
correspondence.  Notwithstanding the foregoing, the Consultant shall not be required to
devote more than an average of forty hours per quarter to the performance of
the Consulting Services.


 


(c)                                  The
Consultant agrees to devote his best efforts to performing the Consulting
Services. The Consultant shall comply with all rules, procedures and standards promulgated
by the Company with regard to the Consultant’s access to and use of the Company’s
property, information, equipment and facilities.


 


2.                                      Compensation.  In consideration of Consulting Services
performed, the Company shall pay the Consultant $2,000 per month.  The Consultant agrees to invoice the Company
monthly for all amounts due pursuant to this Section 2, and the Company
shall pay all amounts due within thirty (30) days of the date of the invoice.


 


3.                                      Expenses.  The Company will reimburse the Consultant for
such reasonable business expenses as are incurred by the Consultant in the
performance of Consulting Services for the Company.


 


4.                                      Independent
Contractor.  In furnishing the
Consulting Services, the Consultant understands that he will at all times be
acting as an independent contractor of the Company and, as such, will not be an
employee of the Company.  Nothing in this
Agreement shall be construed to create any duty to, standard of care with
reference to, any liability to, or any right of suit or action in, any person
not a party to this Agreement.  Without
limiting the generality of the


 

















 


foregoing, this Agreement is not intended to
confer a benefit on any third party and no third party may rely upon this
Agreement.


 


5.                                      Term.  The
term of this Agreement will begin on the Effective Date and will end four
months after the Effective Date or upon earlier termination as provided below
(the “Term”); provided,
that the Term may be extended by mutual agreement of the Company and the
Consultant prior to the expiration or termination of this Agreement.  This Agreement may be terminated by either
party at any time by written notice to the other party.


 


6.                                      Confidential
Information.


 


While
providing the Consulting Services to the Company and thereafter, the Consultant
shall not, directly or indirectly, use any Confidential Information (as defined
below) other than pursuant to his provision of the Consulting Services by and
for the benefit of the Company, or disclose to anyone outside of the Company
any such Confidential Information.  The
term “Confidential Information” as
used throughout this Agreement shall mean all trade secrets, proprietary
information and other data or information (and any tangible evidence, record or
representation thereof), written or oral, whether prepared, conceived or
developed by a consultant or employee of the Company (including the Consultant)
or received by the Company from an outside source, which is in the possession
of the Company (whether or not the property of the Company) and which is
maintained in secrecy or confidence by the Company.


 


In addition to
the foregoing, the Consultant acknowledges that Section 5 (Restrictive
Covenants) and Section 6 (Assignment of Inventions) of the Employment
Agreement, between the Consultant and the Company, dated as of January 5,
2007, as amended, are still in full force and effect and apply to performance
of the Consulting Services by Consultant under this Agreement.


 


7.                                      Miscellaneous.


 


(a)                                 Entire
agreement.  This Agreement and the
documents referred to herein constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to such subject matter.


 


(b)                                 Assignment.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.  This Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder, except as otherwise expressly provided herein and shall not
be assignable by operation of law or otherwise.


 


(c)                                  Amendments
and supplements.  This Agreement may
not be altered, changed or amended, except by an instrument in writing signed
by the parties hereto.


 


(d)                                 No
waiver.  The terms and conditions of
this Agreement may be waived only by a written instrument signed by the party
waiving compliance.  The failure of any
party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this


 


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Agreement or any part hereof or the right of
such party thereafter to enforce each and every such provision.  No waiver of any breach of or non-compliance
with this Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.


 


(e)                                  Governing
law.  This Agreement shall be
governed by, and construed and enforced in accordance with, the substantive
laws of the Commonwealth of Pennsylvania, without regard to its principles of
conflicts of laws.


 


(f)                                   Notice.  All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered by hand,
sent by facsimile transmission with confirmation of receipt, sent via a
reputable overnight courier service with confirmation of receipt requested, or
mailed by registered or certified mail (postage prepaid and return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice), and shall be deemed given on
the date on which delivered by hand or otherwise on the date of receipt as
confirmed:


 


To the
Consultant:


 


John P.
Gandolfo


62 Terrace
Road


Wayne, New
Jersey 07470


 


To the
Company:


 


Power Medical Interventions, Inc.


2021 Cabot Boulevard


Langhorne, Pennsylvania 19047


Facsimile: 267.775.8122


 


(g)                                  Survival;
Validity.  Notwithstanding the
termination of the Consultant’s relationship with the Company (whether pursuant
to Section 5 or otherwise), the Consultant’s covenants and
obligations set forth in Section 6 and the Company’s obligations in
Sections 2 and 3, shall remain in effect and be fully enforceable in
accordance with the provisions thereof. 
In the event that any provision of this Agreement shall be determined to
be unenforceable by reason of its extension for too great a period of time or
over too large a geographic area or over too great a range of activities, it
shall be interpreted to extend only over the maximum period of time, geographic
area or range of activities as to which it may be enforceable.  If, after application of the preceding
sentence, any provision of this Agreement shall be determined to be invalid,
illegal or otherwise unenforceable by a court of competent jurisdiction, the
validity, legality and enforceability of the other provisions of this Agreement
shall not be affected thereby.


 


(h)                                 Counterparts.  This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
Agreement.


 


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IN WITNESS
WHEREOF, the parties have caused this Consulting Agreement to be executed as an
agreement under seal as of the date first written above.


 


	
   

  	
  CONSULTANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JOHN P.
  GANDOLFO

  
	
   

  	
  JOHN P.
  GANDOLFO

  	
  (signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  POWER
  MEDICAL INTERVENTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  MICHAEL P. WHITMAN

  
	
   

  	
  (signature)

  
	
   

  	
   

  
	
   

  	
  Michael P. Whitman

  
	
   

  	
  President and Chief Executive Officer

  
				



 


Signature Page to Consulting Agreement