CONSULTANT AGREEMENT
Exhibit 10.3
This
CONSULTANT AGREEMENT (the “Agreement”) is made and
entered into as of February 14, 2018, by and among GT Biopharma,
Inc. (the “Parent”), Georgetown Translational
Pharmaceuticals, Inc. (the “Subsidiary,” and
collectively, the “Companies”), and Xxxxxxx X. Xxxxxxx
(the “Consultant,” and together with the Companies, the
“Parties”).
WHEREAS, the Parties entered into an
Employment Agreement, effective September 1, 2017 (the
“Effective Date”);
WHEREAS, Consultant resigned from his
position as Executive Chairman of the Boards of the Companies on
February 14, 2018 pursuant to a Written Consent of the Board of
Directors Regarding Actions Taken without a Meeting (the
“February 14 Board Resolutions”);
WHEREAS, Consultant will retain his
position as a Director of the Parent pursuant to the February 14,
Board Resolutions;
WHEREAS, Consultant signed the February
14 Board Resolutions; and
WHEREAS, each Company is desirous of
continuing to engage the services of Consultant, and Consultant
wishes to perform consulting services for each Company in
accordance with the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES
AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED, IT IS MUTUALLY AGREED AS FOLLOWS:
1. Position and Duties: Consultant shall
provide consulting services to the Board of Directors and Chairman
of each Company. Consultant agrees to devote the necessary business
time, energy and skill to his duties at each Company, and will be
permitted engage in outside consulting and/or employment provided
said services do not materially interfere with Consultant’s
obligations to each Company under the terms of this Agreement.
Consultant agrees to advise the Board of Directors of the Parent of
any outside services, and such Board’s approval of
Consultant’s participation in any such outside services shall
not be unreasonably withheld or delayed. If such Board does not
affirmatively approve of any such outside engagements within thirty
(30) days after Consultant informs the Board, the Board’s
approval shall be deemed to have been given. The services that
Consultant shall provide to the Companies pursuant to this
Agreement shall include providing advice and consultation on
general corporate matters and other projects as may be assigned by
either Company’s Board of Directors on an as needed basis.
During the term of this Agreement, Consultant shall have the right
to serve on boards of directors of other for-profit or
not-for-profit entities provided such service does not materially
adversely affect the performance of Consultant’s duties to
each Company under this Agreement, and are not in conflict with the
interests of each Company.
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Consultant
shall be nominated to stand for election to the Board of Directors
of each Company at each of its scheduled shareholders meeting so
long as Consultant remains a consultant to either Company. As a
member of each Company’s Board, Consultant shall continue to
be subject to the provisions of each Company’s bylaws and all
applicable general corporation laws relative to his position on the
Board. In addition to each Company’s bylaws, as a member of
the Board, Consultant shall also be subject to the statement of
powers, both specific and general, set forth in each
Company’s Articles of Incorporation.
2. Term of Agreement: This Agreement shall
remain in effect until August 31, 2020, and thereafter will
automatically renew for successive one-year periods unless either
party provides ninety (90) days’ prior written notice of
termination. In the event either Company elects to terminate the
Agreement, such termination shall be considered to be an
Involuntary Termination, and Consultant shall be provided benefits
as provided in this Agreement. Upon the termination of this
Agreement for any reason, neither Consultant nor the Companies
shall have any further obligation or liability under this Agreement
to the other, except as set forth below.
3. Compensation: Consultant shall be
compensated by the Parent for his services to the Companies as
follows:
(a) Base Consulting Fee: Consultant shall be
paid a monthly Base Consulting Fee of $41,666.67 per month.
Consultant’s Base Consulting Fee shall be reviewed on at
least an annual basis and may be adjusted as appropriate, but in no
event shall it be reduced to an amount below Consultant’s
Base Consulting Fee then in effect. In the event of such an
adjustment, that amount shall become Consultant’s Base
Consulting Fee.
(b) Benefits: Consultant shall have the
right to continue to receive health benefits under either
Company’s health plan pursuant to the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”). The Companies
shall reimburse Consultant for the monthly premium under COBRA for
a period of 18 months following the date of this Agreement, such
that Consultant receives health benefits at the same cost to him as
when he was an active employee of the Companies, provided, however,
that the Companies shall in no event be required to provide any
benefits otherwise required by this clause after such time as
Consultant becomes entitled to receive benefits of the same type
from another employer or recipient of Consultant’s services
(such entitlement being determined without regard to any individual
waivers or other similar arrangements). It shall be the obligation
of Consultant to inform the Parent that new benefits have been
obtained. Consultant shall not be required to perform any
consulting services for the Companies for (4) four weeks per annum,
(5) five personal days per annum and up to (6) six paid sick days
per annum.
(c) Performance Bonus: Consultant shall have
the opportunity to earn a performance bonus in accordance with the
Parent’s Performance Bonus Plan if in effect (“Target
Bonus”); if the Parent does not have a Bonus Plan in effect
at any given time during the term of this Agreement, then the
Parent’s Compensation Committee or Board of Directors shall
have discretion as to determining bonus compensation for
Consultant.
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(d) General Grant: NA
(a) Expenses: The Parent shall reimburse
Consultant for reasonable travel, lodging, entertainment and meal
expenses incurred in connection the performance of services within
this Agreement. Consultant shall be entitled to fly Business Class
on any flight longer than four (4) hours and receive full
reimbursement for such flight from the Parent.
(b) Travel: Consultant shall travel as
necessary from time to time to satisfy his performance and
responsibilities under this Agreement.
4.
Effect of Termination of
Agreement:
(a) Voluntary Termination: In the event
Consultant voluntarily terminates this Agreement by no longer
performing services for the Companies, other than for Good Reason
pursuant to Sections 5(d) or 5(e), Consultant shall be entitled to
no compensation or benefits from the Companies other than those
earned under Section 3 through the date of the termination, in the
case of each stock option, restricted stock award or other Company
stock-based award granted to Consultant, the extent to which such
awards are vested through the date of termination. In the event
that the Agreement terminates as a result of his death or
disability, Consultant shall be entitled to a pro-rata share of the
performance-based bonus for which Consultant is then-eligible
pursuant to Section 3(c) (presuming performance meeting, but not
exceeding, target performance goals) in addition to all
compensation and benefits earned under Section 3 through the date
of termination.
(b) Termination for Cause: If the Companies
terminate this Agreement for Cause, Consultant shall be entitled to
no compensation or benefits from the Companies other than those
earned under Section 3 through the date of the termination and, in
the case of each stock option, restricted stock award or other
Company stock-based award granted to Consultant, the extent to
which such awards are vested through the date of termination. In
the event that the Companies terminate this Agreement for Cause,
the Companies shall provide written notice to Consultant of that
fact prior to, or concurrently with, the termination. Failure to
provide written notice that the Companies contend that the
termination is for Cause shall constitute a waiver of any
contention that the termination was for Cause, and the termination
shall be irrebuttably presumed to be an Involuntary
Termination.
(c) Involuntary Termination During Change in
Control Period: If this Agreement terminates as a result of
a Change in Control Period Involuntary Termination, then, in
addition to any other benefits described in this Agreement,
Consultant shall receive the following:
(i) all compensation
and benefits earned under Section 3 through the date of the
Involuntary Termination;
(ii) a
lump sum payment equivalent to the greater of (a) the bonus paid or
payable to Consultant for the year immediately prior to the year in
which the Change in Control occurred and (b) the Target Bonus under
the Performance Bonus Plan in effect immediately prior to the year
in which the Change in Control occurs;
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(iii) a
lump sum payment equivalent to the remaining Base Salary (as it was
in effect immediately prior to the Change in Control) due
Consultant from the date of Involuntary Termination to the end of
the term of this Agreement or one-half of Consultant’s Base
Salary then in effect, whichever is the greater; and
(iv) reimbursement
for the cost of any medical insurance coverage pursuant to Section
3(b), provided, however, that the Companies shall in no event be
required to provide any benefits otherwise required by Section 3(b)
after such time as Consultant becomes entitled to receive benefits
of the same type from another employer or recipient of
Consultant’s services (such entitlement being determined
without regard to any individual waivers or other similar
arrangements). It shall be the obligation of Consultant to inform
the Parent that new benefits have been obtained.
Unless
otherwise agreed to by Consultant at the time of Involuntary
Termination, the amount payable to Consultant under subsections (i)
through (iii), above, shall be paid to Consultant in a lump sum
within thirty (30) days following the Involuntary Termination. The
amounts payable under subsection (iv) shall be paid monthly during
the reimbursement period.
(d) Termination Without Cause in the Absence of
Change in Control: In the event that this Agreement
terminates as a result of a Non Change in Control Period
Involuntary Termination, then Consultant shall receive the
following benefits:
(i) all compensation
and benefits earned under Section 3 through the date of the
termination;
(ii) a
lump sum payment equivalent to the greater of (a) the bonus paid or
payable to Consultant for the year immediately prior to the year in
which the Change in Control occurred and (b) the Target Bonus under
the Performance Bonus Plan in effect immediately prior to the year
in which the Change in Control occurs;
(iii) a
lump sum payment equivalent to the remaining Base Salary (as it was
in effect immediately prior to the Change in Control) due
Consultant to the end of the term of this Agreement or one-half of
Consultant’s Base Salary then in effect, whichever is the
greater; and
(iv) reimbursement
for the cost of medical insurance coverage pursuant to Section
3(b), provided, however, that the Companies shall in no event be
required to provide any benefits otherwise required by Section 3(b)
after such time as Consultant becomes entitled to receive benefits
of the same type from another employer or recipient of
Consultant’s services (such entitlement being determined
without regard to any individual waivers or other similar
arrangements). It shall be the obligation of Consultant to inform
the Parent that new benefits have been obtained.
Unless
otherwise agreed to by Consultant, the amount payable to Consultant
under subsections (i) through (iii) above shall be paid to
Consultant in a lump sum within thirty (30) days following the
termination. The amounts payable under subsection (iv) shall be
paid monthly during the reimbursement period.
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(e) Termination with Good Reason During Change in
Control Period: If Consultant terminates this Agreement as a
result of a Change in Control Period Good Reason, then, in addition
to any other benefits described in this Agreement, Consultant shall
receive the following:
(i) all compensation
and benefits earned under Section 3 through the date of the
Involuntary Termination;
(ii) a
lump sum payment equivalent to the greater of (a) the bonus paid or
payable to Consultant for the year immediately prior to the year in
which the Change in Control occurred and (b) the Target Bonus under
the Performance Bonus Plan in effect immediately prior to the year
in which the Change in Control occurs;
(iii) a
lump sum payment equivalent to the remaining Base Salary (as it was
in effect immediately prior to the Change in Control) due
Consultant from the date of Involuntary Termination to the end of
the term of this Agreement or one-half of Consultant’s Base
Salary then in effect, whichever is the greater; and
(iv) reimbursement
for the cost of medical insurance coverage pursuant to Section
3(b), provided, however, that the Companies shall in no event be
required to provide any benefits otherwise required by Section 3(b)
after such time as Consultant becomes entitled to receive benefits
of the same type from another employer or recipient of
Consultant’s services (such entitlement being determined
without regard to any individual waivers or other similar
arrangements). It shall be the obligation of Consultant to inform
the Parent that new benefits have been obtained.
Unless
otherwise agreed to by Consultant, the amount payable to Consultant
under subsections (i) through (iii) above shall be paid to
Consultant in a lump sum within thirty (30) days following the
Involuntary Termination. The amounts payable under subsection (iv)
shall be paid monthly during the reimbursement period.
(f) Termination with Good Reason in the Absence of
Change in Control: If Consultant terminates this Agreement
as a result of a Non Change in Control Period Good Reason, then, in
addition to any other benefits described in this Agreement,
Consultant shall receive the following:
(i) all compensation
and benefits earned under Section 3 through the date of the
Involuntary Termination;
(ii) a
lump sum payment equivalent to the greater of (a) the bonus paid or
payable to Consultant for the year immediately prior to the year in
which the Change in Control occurred and (b) the Target Bonus under
the Performance Bonus Plan in effect immediately prior to the year
in which the Change in Control occurs;
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(iii) a
lump sum payment equivalent to the remaining Base Salary (as it was
in effect immediately prior to the Change in Control) due
Consultant from the date of Involuntary Termination to the end of
the term of this Agreement or one-half of Consultant’s Base
Salary then in effect, whichever is the greater; and
(iv) reimbursement
for the cost of medical insurance coverage pursuant to Section
3(b), provided, however, that the Companies shall in no event be
required to provide any benefits otherwise required by Section 3(b)
after such time as Consultant becomes entitled to receive benefits
of the same type from another employer or recipient of
Consultant’s services (such entitlement being determined
without regard to any individual waivers or other similar
arrangements). It shall be the obligation of Consultant to inform
the Parent that new benefits have been obtained.
Unless
otherwise agreed to by Consultant, the amount payable to Consultant
under subsections (i) through (iii) above shall be paid to
Consultant in a lump sum within thirty (30) days following the
Involuntary Termination. The amounts payable under subsection (iv)
shall be paid monthly during the reimbursement period.
(g) Resignation from Positions: In the event
that this Agreement is terminated for any reason, on the effective
date of the termination Consultant shall simultaneously resign from
each position he holds on the Board and/or the Board of Directors
of any of the Companies’ affiliated entities and any position
Consultant holds as an officer of the Companies or any of the
Companies’ affiliated entities.
5. Certain Definitions: For the purpose of
this Agreement, the following capitalized terms shall have the
meanings set forth below:
(a) “Cause”
shall mean any of the following occurring on or after the date of
this Agreement:
(i) Consultant’s
theft, dishonesty, breach of fiduciary duty for personal profit or
falsification of any employment or Company record;
(ii) Consultant’s
willful violation of any law, rule or regulation (other than
traffic violations, misdemeanors or similar offenses) or final
cease-and-desist order, in each case that involves moral
turpitude;
(iii) any
material breach by Consultant of either Company’s Code of
Professional Conduct, which breach shall be deemed
“material” if it results from an intentional act by
Consultant and has a material detrimental effect on either
Company’s reputation or business; or
(iv) any
material breach by Consultant of this Agreement, which breach, if
curable, is not cured within thirty (30) days following written
notice of such breach from the applicable Company.
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(b)
“Change in
Control” shall mean the occurrence of any of the following
events:
(i) the Parent is party
to a merger or consolidation which results in the holders of the
voting securities of the Parent outstanding immediately prior
thereto failing to retain immediately after such merger or
consolidation direct or indirect beneficial ownership of more than
fifty percent (50%) of the total combined voting power of the
securities entitled to vote generally in the election of directors
of the Parent or the surviving entity outstanding immediately after
such merger of consolidation;
(ii) a
change in the composition of the Board of Directors of the Parent
occurring within a period of twenty-four (24) consecutive months,
as a result of which fewer than a majority of the directors are
Incumbent Directors;
(iii) effectiveness
of an agreement for the sale, lease or disposition by the Parent of
all or substantially all of the Parent’s assets;
or
(iv) a
liquidation or dissolution of the Parent.
(c) “Change in
Control Period” shall mean the period commencing on the date
sixty (60) days prior to the date of consummation of the Change of
Control and ending one hundred eighty (180) days following
consummation of the Change of Control.
(d) “Change
in Control Period Good Reason” shall mean Consultant’s
resignation for any of the following conditions, first occurring
during a Change in Control Period and occurring without
Consultant’s written consent:
(i) a decrease in
Consultant’s Base Salary or a decrease in Consultant’s
Target Bonus (as a multiple of Consultant’s Base Salary)
under the Performance Bonus Plan, in each case other than as part
of any across-the-board reduction applying to all senior executives
of either Company which does not have adverse effect on Consultant
disproportionate to similarly situated executives of an
acquirer;
(ii) a
material, adverse change in Consultant’s title, authority,
responsibilities, as measured against Consultant’s title,
authority, responsibilities or duties immediately prior to such
change.
(iii) a
change in Consultant’s ability to maintain his principal
workplace in Beverly Hills, California;
(iv) any
material breach by either Company of any provision of this
Agreement, which breach is not cured within thirty (30) days
following written notice of such breach from
Consultant;
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(v) any failure of the
Parent to obtain the assumption of this Agreement by any of the
Parent’s successors or assigns by purchase, merger,
consolidation, sale of assets or otherwise.
(vi) any
purported termination of Consultant’s employment for
“material breach of contract” which is purportedly
effected without providing the “cure” period, if
applicable, described in Section 5(iv), above.
The
effective date of any termination of this Agreement by Consultant
for Change in Control Period Good Reason shall be the date of
notification to the Parent of such termination by Consultant. For
the avoidance of doubt, Consultant acknowledges that his change in
title, authority, responsibilities and duties from Executive
Chairman to Consultant does not constitute a Change in Control
Period Good Reason as defined under this Section of the
Agreement.
(e) “Non Change
in Control Period Good Reason” shall mean Consultant’s
resignation within six months of any of the following conditions
first occurring outside of a Change in Control Period and occurring
without Consultant’s written consent:
(i) a decrease in
Consultant’s total cash compensation opportunity (adding Base
Salary and Target Bonus) of greater than ten percent
(10%);
(ii) a
material, adverse change in Consultant’s title, authority,
responsibilities or duties, as measured against Consultant’s
title, authority, responsibilities or duties immediately prior to
such change;
(iii) any
material breach by either Company of a provision of this Agreement,
which breach is not cured within thirty (30) days following written
notice of such breach from Consultant;
(iv) a
change in Consultant’s ability to maintain his principal
workplace in Beverly Hills, California;
(v) any purported
termination of Consultant’s employment for “material
breach of contract” which is purportedly effected without
providing the “cure” period, if applicable, described
in Section 5(iv), above.
The
effective date of any termination of this Agreement by Consultant
for Non Change in Control Period Good Reason shall be the date of
notification to the Parent of such termination by Consultant. For
the avoidance of doubt, Consultant acknowledges that his change in
title, authority, responsibilities and duties from Executive
Chairman to Consultant does not constitute a Non Change in Control
Period Good Reason as defined under this Section of the
Agreement.
(f) “Incumbent
Directors” shall mean members of the Board who either (a) are
members of the Board as of the date hereof, or (b) are elected, or
nominated for election, to the Board with the affirmative vote of
at least a majority of the Incumbent Directors at the time of such
election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or
threatened proxy contest relating to the election of members of the
Board).
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(g) “Change in
Control Period Involuntary Termination” shall mean during a
Change in Control Period the termination of this Agreement by the
Companies for any reason, including termination as a result of
death or disability of Consultant, but excluding termination for
Cause. The effective date of any Change in Control Period
Involuntary Termination shall be the date of notification to
Consultant of the termination of this Agreement.
(h) “Non Change
in Control Period Involuntary Termination” shall mean outside
a Change in Control Period the termination of this Agreement by the
Companies for any reason, including termination by as a result of
death or disability of Consultant, but excluding termination for
Cause. The effective date of any Non Change in Control Period
Involuntary Termination shall be the date of notification to
Consultant of the termination of this Agreement.
6. Dispute Resolution: In the event of any
dispute or claim relating to or arising out of this Agreement
(including, but not limited to, any claims of breach of contract,
wrongful termination or age, sex, race or other discrimination),
Consultant and the Companies agree that all such disputes shall be
fully addressed and finally resolved by binding arbitration
conducted by the American Arbitration Association in New York City,
in the State of New York in accordance with its National Employment
Dispute Resolution rules. In connection with any such arbitration,
the Parent shall bear all costs not otherwise borne by a plaintiff
in a court proceeding. Each Company agrees that any decisions of
the Arbitration Panel will be binding and enforceable in any state
that either Company conducts the operation of its
business.
7. Attorneys’ Fees: The prevailing
party shall be entitled to recover from the losing party its
attorneys’ fees and costs incurred in any action brought to
enforce any right arising out of this Agreement.
8. Restrictive Covenants:
(a) Nondisclosure. During the term of this
Agreement and following termination of this Agreement, Consultant
shall not divulge, communicate, use to the detriment of the
Companies or for the benefit of any other person or persons, or
misuse in any way, any Confidential Information (as hereinafter
defined) pertaining to the business of the Companies. Any
Confidential Information or data now or hereafter acquired by
Consultant with respect to the business of the Companies (which
shall include, but not be limited to, confidential information
concerning each Company’s financial condition, prospects,
technology, customers, suppliers, methods of doing business and
promotion of each Company’s products and services) shall be
deemed a valuable, special and unique asset of each Company that is
received by Consultant in confidence and as a fiduciary. For
purposes of this Agreement “Confidential Information”
means information disclosed to Consultant or known by Consultant as
a consequence of or through his employment by each Company
(including information conceived, originated, discovered or
developed by Consultant) prior to or after the date hereof and not
generally known or in the public domain, about each Company or its
business. Notwithstanding the foregoing, none of the following
information shall be treated as Confidential Information: (i)
information which is known to the public at the time of disclosure
to Consultant, (ii) information which becomes known to the public
by publication or otherwise after disclosure to Consultant, (iii)
information which Consultant can show by written records was in his
possession at the time of disclosure to Consultant, (iv)
information which was rightfully received by Consultant from a
third party without violating any non-disclosure obligation owed to
or in favor of the Companies, or (v) information which was
developed by or on behalf of Consultant independently of any
disclosure hereunder as shown by written records. Nothing herein
shall be deemed to restrict Consultant from disclosing Confidential
Information to the extent required by law or by any
court.
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(b) Non-Competition. Consultant shall not,
while performing services for either Company, engage or
participate, directly or indirectly (whether as an officer,
director, employee, partner, consultant or otherwise), in any
business that manufactures, markets or sells products that directly
compete with any product of either Company that is significant to
such Company’s business based on sales and/or profitability
of any such product as of the date of the termination of this
Agreement. Nothing herein shall prohibit Consultant from being a
passive owner of less than 5% stock of any entity directly engaged
in a competing business.
(c) Property Rights; Assignment of
Inventions. Except as set forth below, with respect to
information, inventions and discoveries or any interest in any
copyright and/or other property right developed, made or conceived
of by Consultant, either alone or with others, while performing
services for each Company arising out of such provision of services
and pertinent to any field of business or research in which each
Company is engaged or (if such is known to or ascertainable by
Consultant) is considering engaging, Consultant hereby
agrees:
(i) that all such
information, inventions and discoveries or any interest in any
copyright and/or other property right, whether or not patented or
patentable, shall be and remain the exclusive property of the
Companies;
(ii) to
disclose promptly to an authorized representative of the Parent all
such information, inventions and discoveries or any copyright
and/or other property right and all information in
Consultant’s possession as to possible applications and uses
thereof;
(iii) not
to file any patent application relating to any such invention or
discovery except with the prior written consent of an authorized
officer of the Parent;
(iv) that
Consultant hereby waives and releases any and all rights Consultant
may have in and to such information, inventions and discoveries,
and hereby assigns to the Parent and/or its nominees all of
Consultant’s right, title and interest in them, and all
Consultant’s right, title and interest in any patent, patent
application, copyright or other property right based thereon.
Consultant hereby irrevocably designates and appoints the Parent
and each of its duly authorized officers and agents as his agent
and attorney-in-fact to act for him and on his behalf and in his
stead to execute and file any document and to do all other lawfully
permitted acts to further the prosecution, issuance and enforcement
of any such patent, patent application, copyright or other property
right with the same force and effect as if executed and delivered
by Consultant; and
(v) at the request of
the Parent, and without expense to Consultant, to execute such
documents and perform such other acts as the Parent deems necessary
or appropriate, for the Companies to obtain patents on such
inventions in a jurisdiction or jurisdictions designated by the
Parent, and to assign to the Companies or their respective
designees such inventions and any and all patent applications and
patents relating thereto.
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9.
General:
(a) Successors and Assigns: The provisions
of this Agreement shall inure to the benefit of and be binding upon
the Companies, Consultant and each and all of their respective
heirs, legal representatives, successors and assigns. The duties,
responsibilities and obligations of Consultant under this Agreement
shall be personal and not assignable or delegable by Consultant in
any manner whatsoever to any person, corporation, partnership,
firm, company, joint venture or other entity. Consultant may not
assign, transfer, convey, mortgage, pledge or in any other manner
encumber the compensation or other benefits to be received by him
or any rights which he may have pursuant to the terms and
provisions of this Agreement.
(b) Amendments; Waivers: No provision of
this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and
signed by Consultant and by an authorized officer of the Parent. No
waiver by any Party of any breach of, or of compliance with, any
condition or provision of this Agreement by the other Party or
Parties shall be considered a waiver of any other condition or
provision or of the same condition or provision at another
time.
(c) Notices: Any notices to be given
pursuant to this Agreement by any Party may be effected by personal
delivery or by overnight delivery with receipt requested. Mailed
notices shall be addressed to the Parties at the addresses stated
below, but each Party may change its or his address by written
notice to the other in accordance with this subsection (c). Mailed
notices to Consultant shall be addressed as follows:
Xxxxxxx
X. Xxxxxxx
0000
Xxxxx Xxxxxxx Xx.
Xxxxxxx
Xxxxx, XX 00000
E-mail:
xxxxxxx00@xxx.xxx
Mailed
notices to the Companies shall be addressed as
follows:
Attention: Xxxxxx
Xxxxxx, CFO
0000 X Xxxxxx XX,
Xxxxx 000
Xxxxxxxxxx, X.X.
00000
E-mail:
xxx@xxxxxxxxxxx.xxx
(d) Entire Agreement: This Agreement
constitutes the entire agreement among the Parties regarding the
terms and conditions of Consultant’s provision of services to
the Companies, with the exception of any stock option, restricted
stock or other Company stock-based award agreements among
Consultant and the Companies to the extent not modified by this
Agreement. This Agreement (including the other documents referenced
in the previous sentence) supersedes all prior negotiations,
representations or agreements among the Parties, whether written or
oral, including without limitation the Employment Agreement,
concerning Consultant’s provision of services to or
employment by the Companies.
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(e) Independent Contractor Relationship:
Consultant’s relationship with the Companies is that of an
independent contractor, and nothing in this Agreement is intended,
or shall be construed, to create any employee relationship.
Consultant is solely responsible for, and will file, on a timely
basis, all tax returns and payments required to be filed with, or
made to, any federal, state or local tax authority with respect to
the performance of services and receipt of compensation under this
Agreement. No part of Consultant’s compensation will be
subject to withholding by the Companies for the payment of any
social security, federal, state or other employee payroll taxes.
The Companies will report amounts paid to Consultant by filing Form
1099-MISC with the Internal Revenue Service as required by law
and/or make such other reports as deemed necessary or appropriate
by the Companies under applicable laws.
(f) Counterparts: This Agreement may be
executed by the Companies and Consultant in counterparts, each of
which shall be deemed an original and which together shall
constitute one instrument.
(g) Headings: Each and all of the headings
contained in this Agreement are for reference purposes only and
shall not in any manner whatsoever affect the construction or
interpretation of this Agreement or be deemed a part of this
Agreement for any purpose whatsoever.
(h) Savings Provision: To the extent that
any provision of this Agreement or any paragraph, term, provision,
sentence, phrase, clause or word of this Agreement shall be found
to be illegal or unenforceable for any reason, such paragraph,
term, provision, sentence, phrase, clause or word shall be modified
or deleted in such a manner as to make this Agreement, as so
modified, legal and enforceable under applicable laws. The
remainder of this Agreement shall continue in full force and
effect.
(i) Construction: The language of this
Agreement and of each and every paragraph, term and provision of
this Agreement shall, in all cases, for any and all purposes, and
in any and all circumstances whatsoever be construed as a whole,
according to its fair meaning, not strictly for or against
Consultant or the Companies, and with no regard whatsoever to the
identity or status of any person or persons who drafted all or any
portion of this Agreement.
(j) Further Assurances: From time to time,
at the Companies’ request and without further consideration,
Consultant shall execute and deliver such additional documents and
take all such further action as reasonably requested by the
Companies to be necessary or desirable to make effective, in the
most expeditious manner possible, the terms of this Agreement and
to provide adequate assurance of Consultant’s due performance
hereunder.
(k) Governing Law: Consultant and the
Companies agree that this Agreement shall be interpreted in
accordance with and governed by the laws of the State of
Delaware.
(l) Board Approval: Each Company warrants to
Consultant that the Board of Directors of such Company has ratified
and approved this Agreement, and that the Parent will cause the
appropriate disclosure filing to be made with the Securities and
Exchange Commission in a timely manner.
[Signature
page follows]
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IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the
date written below.
CONSULTANT:
Date:
February 14, 2018
/s/ Xxxxxxx X Xxxxxxx
Xxxxxxx
X. Xxxxxxx
Date:
February 14, 2018
/s/ Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, CFO
[Signature
Page to X. Xxxxxxx Consultant Agreement]
13
