I T A L S
Consultant has certain knowledge, expertise, experience and reputation which
Company desires to avail itself; and
upon the terms and subject to the conditions of this Agreement, the Company
desires to retain Consultant to provide certain consulting services to the
Company, and Consultant wishes to render such services.
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and agreements herein contained, Consultant and the Company by this Agreement
agree as follows:
Company hereby agrees that, commencing on September 12, 2007 (the “Effective
Company shall engage Consultant and Consultant hereby accepts such engagement
with the Company, upon the terms and subject to the conditions hereinafter
term of Consultant’s engagement under this Agreement (the “Term”)
commence on the Effective Date and, subject to the provisions of Section
shall continue until the fourth anniversary of the Effective Date.
shall provide the following consulting services to the Company (“Services”):
on financing, capital structure and strategic development;
management in developing presentations to the investment community
Authority to Bind.
as directed and authorized by the Chief Executive Officer of the Company
writing, Consultant shall not execute or agree to any contract, agreement
instrument on behalf of the Company.
Company shall pay or issue to Consultant:
per day for any meetings outside New York
option to purchase 1,000,000 shares of the Company’s Common Stock at an
exercise price of $1.00 per share, 50% of which will vest on the
Date of this Agreement, and 50% of which will vest on the first
anniversary of the Effective Date.
options granted pursuant to this Agreement shall be subject to the terms
conditions of the Stock Option Agreement between the Company and Consultant.
grant of options to Consultant shall be conditioned upon receipt of such
Consultant or the Company may terminate this Agreement at any time for any
reason upon 90-days written notice delivered to the other party. In addition,
the Company may terminate this Agreement at any time “for cause” upon delivery
of written notice to Consultant, in which case such termination shall be
effective immediately upon Consultant’s receipt of the written notice.
is convicted of, or pleas nolo
(no contest) to, any crime (whether or not involving the Company)
constituting a felony in the jurisdiction involved;
is in material breach of any provision of this Agreement or any other
agreement with the Company, or willfully fails to or refuses to comply
with the lawful directives of the Chief Executive Officer or the
the performance of his duties under this Agreement (other than a
caused by temporary disability).
Rights and Nondisclosure and Nonuse of Confidential Information.
understood that during the term of this Agreement, Consultant may be exposed
information that is confidential and proprietary to the Company. All such
information (hereinafter “Lixte Confidential Information”), whether written or
oral, tangible or intangible, that is made available, disclosed, or otherwise
made known to Consultant by the Company or its employees under this Agreement
shall be considered confidential and shall be considered the sole property
the Company. Lixte Confidential Information shall be (a) marked as confidential,
or (b) otherwise represented by the disclosing party as confidential either
before or within a reasonable time after its disclosure to the receiving
This obligation of confidentiality shall remain in effect for a period of
(5) years after the expiration or termination of this Agreement.
obligations of confidentiality set forth in Paragraph 7.1 shall not apply
or hereafter becomes generally available to the public other than
reason of any default with respect to a confidentiality obligation
this Agreement; or
already known to the recipient as evidenced by prior written documents
its possession; or
disclosed to the recipient by a third party who is not in default
confidentiality obligation to the disclosing party hereunder;
developed by or on behalf of the receiving party, without reliance
confidential information received hereunder as evidenced by written
documents in its possession; or
been approved in writing by one party for publication by the other
required to be disclosed in compliance with applicable laws or
Consultant acknowledges that during the course of Consultant’s engagement by the
Company, Consultant has and will continue to have the opportunity to develop
relationships with existing employees, clients, distributors, and prospective
clients, and other business associates of the Company, which relationships
constitute goodwill of the Company and that the Company would be irreparably
damaged if Consultant were to take actions that would damage or misappropriate
such goodwill. Consultant accordingly agrees that during the period commencing
on the Effective Date and ending on the first anniversary of the conclusion
the Term, Consultant shall not, directly or indirectly, either for the benefit
of Consultant or any other person, do any of the following:
any employee of the Company to terminate his or her employment with
Company, or employ any such individual during his or her employment
the Company and for a period of six months after such individual
terminates his or her employment with the
any distributor or customer, or prospective distributor or customer,
the Company to terminate his or her relationship with the Company,
accept any business from any such distributor or customer, or prospective
distributor or customer, of the Company;
any public statement, comment or remark that disparages the integrity
competence of a Company officer, director, employee, or shareholder,
disparages any product or service of the Company, or that is reasonably
likely to cause injury to the relationships between the Company and
existing or prospective distributor, client, lessor, lessee, contractual
counterparty, vendor, supplier, customer, employee, consultant or
business associate of the Company. Likewise, the Company agrees that
shall not make any public statement, comment or remark that disparages
integrity or competence of Consultant.
of the Parties.
mutually understood and agreed that Consultant, while performing all
responsibilities under this Agreement, is and shall at all times be, act,
function, and perform all services and responsibilities in the legal capacity
an independent contractor. It is mutually understood and agreed that no work,
act, commission or omission of any act by Consultant or the Company pursuant
the terms and conditions of this Agreement shall be construed to make or
Consultant an employee of the Company. Furthermore, Consultant shall not,
any circumstances, hold itself out to be an employee of the
Consultant to Control Performance.
Company shall have no right or authority to direct or control Consultant
respect to the performance of Consultant’s duties under this Agreement, or with
respect to any other matter, except as otherwise provided by this Agreement.
is further understood that Consultant is free to contract with other companies
to provide professional services, as long as that service does not violate
provisions of Sections 7 or 8.
as provided in this Section 9.3 and Section 5(a), Consultant shall be fully
responsible to pay any and all expenses and disbursements that it incurs
performance of any services or obligations covered by this Agreement. The
Company shall, however, reimburse Consultant for all actual and reasonable
travel expenses incurred by Consultant when Consultant is traveling at the
request of the Company in connection with its duties; provided,
(i) Consultant shall not be entitled to reimbursement for any individual
expenditure in excess of $1,000, unless such expenditure shall have been
pre-approved in writing by the Company’s Chief Executive Officer, and (ii)
Consultant shall not be entitled to reimbursement for a particular expenditure
if Consultant does not submit to the Company sufficient documentation evidencing
and Benefit Programs.
Consultant shall be liable and responsible to pay any and all taxes relating
all amounts paid to Consultant hereunder. It is understood and agreed that
because Consultant is not an employee of the Company, the Company shall not
withhold any taxes from amounts paid to Consultant. Consultant shall be fully
and solely responsible to report income and expenses. Consultant acknowledges
that it is solely responsible for its own tax planning and that the Company
not provided Consultant with any tax advice regarding the tax implications
this Agreement. It is also understood and agreed that Consultant shall not
eligible to participate in any benefits or programs sponsored or financed
Company for its employees.
notices, requests, demands and other communications required or permitted
given hereunder shall be in writing and shall be deemed to have been duly
upon receipt, if delivered personally, upon confirmation of receipt, if given
electronic facsimile and on the third business day following mailing, if
first-class, postage prepaid, registered or certified mail addressed as
to the Company to:
John Kovach, M.D.
may by notice given in accordance with this Section 11.1 to the other parties
designate another address or person for receipt of notices
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. This Agreement may be amended, superceded, canceled,
renewed or extended, and the terms hereof or thereof may be waived, only
written instrument signed by each of the parties hereto or thereto or, in
case of a waiver, by the party waiving compliance.
legal action or arbitration arises under this Agreement, arises by reason
asserted breach of it, or arises between the parties and is related in any
to the subject matter of the Agreement, the prevailing party shall be entitled
to recover all costs and expenses, including reasonable attorneys’ fees,
arbitration costs, investigative costs, reasonable accounting fees and charges
Agreement shall be binding upon and inure to the benefit of the parties and
their respective permitted successors and permitted assigns. Neither this
Agreement nor any of the rights hereunder may be assigned by any party, nor
any party delegate any obligations hereunder or thereunder, without the written
consent of the other party hereto or thereto; provided,
the Company may assign its rights hereunder to any subsidiary or to any person
or entity that acquires, directly or indirectly, all or substantially all
Company’s business (whether through acquisition of assets, stock or any other
means). Any non-permitted assignment or attempted assignment shall be void,
herein is intended or shall be construed to give any person any legal or
equitable right, remedy or claim under or in respect of this Agreement or
provision contained herein, except as otherwise provided herein.
Agreement may be executed by the parties in separate counterparts, each of
when so executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument. Delivery of any
counterpart signature page of this Agreement, written communication or notice
hereunder by facsimile shall be equally as effective as delivery of a manually
executed original of such counterpart signature page, communication or
party hereto shall execute such documents and other papers and take such
actions as may be reasonably required or desirable to carry out the provisions
of this Agreement and the transactions contemplated hereby.
Consultant hereby represents and warrants that it is free to enter into this
Agreement and that it is free to render its services pursuant to this Agreement,
and that Consultant is not subject to any obligation or restriction that
prevent it or them from discharging their duties under this Agreement, and
agrees to indemnify and hold harmless the Company from and with respect to
liability, damages or costs, including attorneys’ fees, arising out of any
breach by Consultant of this representation and warranty.
validity, interpretation and construction of this Agreement and each part
thereof will be governed by the laws of the State of New York.
Agreement, and any other agreement explicitly mentioned herein, by and between
the Company and Consultant, set forth the entire agreement between the Company
and Consultant with respect to the subject matter hereof, and supersedes
all prior agreements between the Company and Consultant, whether written
oral, relating to any or all matters covered by and contained or otherwise
with in this Agreement. This Agreement does not constitute a commitment of
Company with regard to Consultant’s engagement, express or implied, other than
to the extent expressly provided for herein.
termination of this Agreement shall not affect the obligations to the parties
hereunder which by the nature thereof are intended to survive any such
termination including, without limitation, the obligations of Consultant
Sections 7 and 8.
WITNESS WHEREOF, the parties hereto have duly executed this Consulting Agreement
as of the day and year first above written.