CONSULTANT AGREEMENT
Exhibit 10.24
This
CONSULTANT AGREEMENT (the “Agreement”) is made and
entered into as of November 13, 2020, by and among GT Biopharma,
Inc. (the “Company”) and Xxxxxxx Xxxxxxxxx
(“Consultant,” and together with the Company, the
“Parties”).
WHEREAS, the Company wishes to engage
the services of Consultant, and Consultant wishes to perform
consulting services for the 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
perform the duties of Chief Financial Officer of the Company on an
interim basis. Consultant shall devote the necessary business time,
energy and skill to his duties at the Company, and will be
permitted to engage in outside consulting and/or employment,
provided said services do not materially interfere with
Consultant’s obligations to the Company under the terms of
this Agreement. Consultant agrees to advise the Board of any
outside services, and the Board’s approval of
Consultant’s participation in any such outside services shall
not be unreasonably withheld or delayed. If the 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 Company pursuant to this Agreement
shall also include providing advice and consultation on general
corporate matters and other projects as may be assigned by the
Board 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 the Company under this Agreement, and
are not in conflict with the interests of the Company.
2. Term
of Agreement: This Agreement shall remain in effect until
terminated by either party on ninety (90) days’ prior written
notice. Upon the termination of this Agreement for any reason,
neither Consultant nor the Company 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 Company for his services as
follows:
(a) Base
Consulting Fee: Consultant shall be paid a monthly Base
Consulting Fee of $15,000.00 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) Discretionary Bonus: Consultant shall
have the opportunity to earn a discretionary bonus in such amount
and at such time as determined by the Board.
(c) Expenses: The Company 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 Company.
(d) 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: In
the event that either party terminates this Agreement, (a)
Consultant shall be entitled solely to such compensation earned
under Section 3 through the date of termination and (b) Consultant
shall, and shall be deemed to have, simultaneously resigned from
each position he holds with the Company and any of the
Company’s affiliated entities.
5. 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 Company 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 Company shall bear all costs not otherwise borne by a plaintiff
in a court proceeding. The Company agrees that any decisions of the
Arbitration Panel will be binding and enforceable in any state that
the Company conducts the operation of its business.
6. 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.
7. 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 Company
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 Company. Any Confidential
Information or data now or hereafter acquired by Consultant with
respect to the business of the Company (which shall include, but
not be limited to, confidential information concerning the
Company’s financial condition, prospects, technology,
customers, suppliers, methods of doing business and promotion of
the Company’s products and services) shall be deemed a
valuable, special and unique asset of the 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 the 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 the 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
Company, 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.
(b) Non-Competition. Consultant shall not,
while performing services for the 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 the Company that is significant to the
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 the Company arising out of such provision of services
and pertinent to any field of business or research in which the
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 Company;
(ii) to disclose promptly to an authorized
representative of the Company 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
Company;
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(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
Company 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 Company 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 Company, and
without expense to Consultant, to execute such documents and
perform such other acts as the Company deems necessary or
appropriate, for the Company to obtain patents on such inventions
in a jurisdiction or jurisdictions designated by the Company, and
to assign to the Company or its respective designees such
inventions and any and all patent applications and patents relating
thereto.
8. General:
(a) Successors and Assigns: The provisions
of this Agreement shall inure to the benefit of and be binding upon
the Company, 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 Company.
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, email or by overnight delivery with receipt
requested.
Notices
to Consultant shall be addressed as follows or to such other
address as provided by such Party to the other:
Xxxxxxx
Xxxxxxxxx
E-mail:
xxxxxxxxxxxxxxx@xxxxx.xxx
Mailed
notices to the Company shall be addressed as follows:
Attention:
Xxxxxxx X. Xxxxxxx, CEO
0000 X
Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx,
X.X. 00000
E-mail:
xxxxxxx00@xxx.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 Company. This Agreement supersedes all prior negotiations,
representations or agreements among the Parties, whether written or
oral concerning Consultant’s provision of services to or
employment by the Company.
(e) Independent Contractor Relationship:
Consultant’s relationship with the Company 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 Company for the payment of any social
security, federal, state or other employee payroll taxes. The
Company 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 Company under applicable laws.
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(f) Counterparts: This Agreement may be
executed by the Company 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 Company, 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 Company’s request and without further consideration,
Consultant shall execute and deliver such additional documents and
take all such further action as reasonably requested by the Company
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
Company agree that this Agreement shall be interpreted in
accordance with and governed by the laws of the State of
Delaware.
(l) Board
Approval: The Company warrants to Consultant that the Board
has ratified and approved this Agreement, and that the Company 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:
November 13, 2020
_________________________
Xxxxxxx
Xxxxxxxxx
Date:
November 13, 2020
_________________________
Xxxxxxx
X. Xxxxxxx, CEO
[Signature
Page to X. Xxxxxxxxx Consultant Agreement]
