This AMENDED AND RESTATED AGREEMENT (the “Agreement”) is made as of the 27
th
day of
August, 2008 by and between <
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
and ADVANCE BIOFACTURES
CORPORATION AND ITS AFFILIATES, 35 Wilbur Street, Lynbrook, NY 11563,
hereinafter referred to, collectively, as the “Company.” <
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
WHEREAS
, the Company
desires to engage <
OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION>
as
an independent contractor and not as an employee to render the services and
grant the rights described below and <
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
desires to render such services
and grant such rights,
NOW,
THEREFORE, it is agreed:
1.
Services
:
<
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
will provide consulting services
to the Company at its request in connection with the clinical testing and
development of a pharmaceutical product based on Collagenase ABC for the
treatment of Peyronie’s Disease (the “Product”), such consulting services shall
be for no more than five (5) days per year unless otherwise mutually
agreed.
2.
Term
:
The consulting
services shall be for a period of twelve (12) months commencing on the date
hereof and continuing thereafter until terminated by either party on not less
than three months’ prior written notice to the other party at the addresses
stated above or at an address chosen subsequent to the execution of this
Agreement and duly communicated to the party giving notice.
3.
Consultations
:
<
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
shall be available to render the
services described above to the Board of Directors, the officers and scientific
staff and consultants of the Company provided that the Company shall pay
reasonable travel expenses and <
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
per day (including time for
travel). All payments to made under this Agreement shall be made by
wire transfer of immediately available funds to an
account
designated in writing from time to time
by <
OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION>
.
4.
Compensation
:
<
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
shall receive from the Company in
consideration of the services to be rendered and rights granted hereunder the
following compensation whether or not the Company has terminated his engagement
prior thereto: <
OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION>
5.
Access to
Records.
a.
|
Upon
the written request of <
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
, and not more than
one (1) time per calendar year,
the
Company
shall permit <
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
or
an independent certified public
accounting firm selected by <
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
to have access
upon reasonable advance notice and
during normal business hours to such records of
the Company or
BTC as may be reasonably
necessary to verify the accuracy of the quarterly royalty statements
provided by
the
Company
. The accounting firm shall enter into a
customary confidentiality agreement with
the
Company
and
BTC
to maintain in
confidence all information of
the Company
and
BTC disclosed in connection with any such audit. Any
such audit shall be at the expense of <
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
unless it reveals
an underpayment of 5% or more of the amount that should have been paid to
<
OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION>
for the
period audited, in which case
the
Company
shall bear the cost of the audit.
Pursuant to Section 10.3 of the Development
Agreement, any sales data conveyed to
<
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
or the accounting firm under this Agreement shall
be maintained by him or the accounting firm in the strictest confidence,
provided that
<
OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION>
may disclose such info to his personal accountant,
if necessary for the preparation of his personal tax
returns.
|
b.
|
The
Company
and BTC
shall retain such
books and records for a period of no less than five (5) years from the
date of this Agreement.
|
6.
Options
:
This Agreement
shall have no affect on the Prior Stock Option Grant, which will continue in
full force and effect in accordance with its terms.
7.
Use of
Name
:
<
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
grants the Company
and BTC
the right to use his name in connection
with documentation prepared during his engagement relating to clinical
investigation and approval of the Product subject to his approval of the
scientific content of the documentation, which approval shall not unreasonably
be withheld.
8.
Confidentiality
and Rights
:
<
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION>
agrees to keep in confidence and
except as may be required by law not to disclose to anyone any information
relating to the Product, or the plans or operations of the Company
or BTC
of which he may become aware during the
engagement, and in particular shall not submit for publication or present to any
forum information relating thereto without the prior written consent of the
Company and agrees to assign to the Company any inventions, discoveries or
improvements he may make relating to the Product without additional
consideration.
9.
Indemnity
and Insurance
:
The Company will
arrange for <
OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION>
to be
named as an additional insured on the Company’s
or
BTC’s
liability policy and will indemnify and defend him against any
claim for damages allegedly caused by the Product whether or not the Company
or BTC
is named in the suit but only if the
clinical trial that gives rise to any claim was sponsored by the Company
or BTC
, unless such claim is based upon his own
personal negligent act or omission.
10.
Miscellaneous:
The
validity, performance, construction and effect of this Agreement shall be
governed by the substantive laws of the State of New York without reference to
conflicts of laws provisions. Any disputes arising under, or in
connection with this Agreement, shall be submitted, by a written notice of a
request to arbitrate by either party, to final and binding arbitration under the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”)
then in force. The arbitration, which shall be before a single-member
arbitral tribunal appointed by the AAA, shall be held in Los Angeles,
California. This Agreement may not be assigned by either party
without the express written consent of the other, except that the Company may
assign this Agreement to the Company or to any third party which acquires
(whether by merger, sale of assets or otherwise) all or substantially all of
that portion of the Company’s or the Company’s business to which this Agreement
pertains. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all previous
agreements, whether written or oral, including, but not limited to, the Prior
Agreement but excluding the Prior Stock Option Grant, which shall continue in
full force and effect in accordance with its terms. This Agreement
may not be modified orally, but only by an instrument in writing signed by both
parties. If any provision of this Agreement is declared invalid or
unenforceable that provision shall be deemed fully severable. The remaining
provisions of this Agreement shall remain in full force and effect and will be
construed as if the invalid and unenforceable provision had been
deleted. It is expressly agreed that the parties are independent
contractors and the relationship will not constitute a partnership or agency of
any kind. Neither party may bind the other or make statements on
behalf of the other without prior written consent. The captions used
in this Agreement are inserted for convenience of reference only and shall not
be construed to create obligations, benefits or limitations. This
Agreement may be executed in counterparts, each of which shall constitute an
original and all of which taken together shall constitute one and the same
instrument. This Agreement shall be binding upon any successors and
assigns and, in the event that the Company or all of its assets are purchased,
this Agreement shall be binding upon the purchaser.