CONSULTING AGREEMENT
Exhibit 10.1
This CONSULTING Agreement (the “Agreement”) is entered into as of May 31, 2024 and is effective as of July 1, 2024 (the “Effective Date”), and is by and between Lixte Biotechnology Holdings, Inc., a Delaware corporation, having its principal place of business located at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (the “Company”), and Xxx X.X. Xxxxxxxxx (the “Consultant”), an individual residing at Xxxx Xxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx.
WHEREAS, the Company desires to appoint Consultant to render services to the Company as its Chief Medical Officer commencing effective August 1, 2024, and as a consultant with respect to clinical advisory matters for the period from July 1, 2024 through July 31, 2024, and Consultant desires to accept such appointment upon the terms and conditions hereinafter set forth;
Agreement
In consideration of the mutual promises contained herein, the parties agree as follows:
1. Services and Compensation. Consultant agrees to perform for the Company the services described in Exhibit A (the “Services”), and the Company agrees to pay Consultant the compensation described in Exhibit A for Consultant’s performance of the Services. If not specified on Exhibit A, the scope, timing, duration, and site of performance of said Services shall be mutually and reasonably agreed to by the Company and Consultant and are subject to change upon the written agreement of both parties. Consultant will make reasonable, good faith efforts to provide the Services in a timely and professional manner consistent with industry practices. Consultant shall report to the Company’s Chief Executive Officer. Consultant shall provide the Services for two days per week, with the specific days in each week to be based on arrangements agreed to from time to time between Consultant and the Company’s Chief Executive Officer. As Consultant will not be providing full-time services to the Company, Consultant may consult with or become an employee of other entities, subject to the obligations as to the treatment of confidential and proprietary information of the Company and the non-compete provisions, as set forth in this Agreement.
2. Confidentiality.
2.1 Definitions. “Confidential Information” means all data, studies, reports, information, technology, samples and specimens relating to the Company or its plans, products, product concepts, formulas, technologies, business, financial, marketing, research, non-clinical, clinical or regulatory affairs, manufacturing processes and procedures, or those of any other third party, from whom the Company receives information on a confidential basis, whether written, graphic or oral, furnished to Consultant by or on behalf of the Company, either directly or indirectly, or obtained or observed by Consultant while providing Services hereunder. Confidential Information does not include (i) information that is now in the public domain or subsequently enters the public domain and is generally available without fault on the part of Consultant; (ii) information that is presently known by Consultant from Consultant’s own sources as evidenced by Consultant’s prior written records; or (iii) information disclosed to Consultant by a third party legally and contractually entitled to make such disclosures.
2.2 Nonuse and Nondisclosure. Consultant will not, during or subsequent to the Term (as defined below), (i) use the Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company or (ii) disclose the Confidential Information to any third party. Consultant agrees that, as between the Company and Consultant, all Confidential Information will remain the sole property of the Company. Consultant also agrees to take all necessary and reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Without the Company’s prior written approval, Consultant may disclose the existence, but not the terms, of this Agreement to third parties. Anything to the contrary notwithstanding, Consultant may also disclose Confidential Information to the extent such disclosure is required by a court of competent jurisdiction and provided that Consultant promptly notifies the Company of such requirement. Consultant acknowledges that the use or disclosure of Confidential Information without the Company’s express written permission will cause the Company irreparable harm and that any material breach or threatened material breach of this Agreement by Consultant will entitle the Company to seek injunctive relief and reasonable attorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.
2.3 Third Party Confidential Information. Consultant recognizes that the Company has received, and in the future may receive, from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that, during the Term of this Agreement and thereafter, Consultant will hold, and that Consultant owes the Company and such third parties a duty to hold, all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or entity or to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party, unless otherwise authorized by such third party.
2.4 Return of Materials. At any time upon the Company’s request, Consultant will deliver to the Company all of the Company’s property, equipment and documents, together with all copies thereof, that were previously provided to Consultant or created by Consultant for the Company pursuant to the Services, including but not limited to all electronically stored confidential and/or nonpublic information, passwords to access such property, or Confidential Information that Consultant may have in Consultant’s possession or control, and Consultant agrees to certify in writing that Consultant has fully complied with this obligation.
2.5 No Improper Disclosure or Use of Materials. Consultant will not improperly use or disclose to, or for the benefit of, the Company any confidential information or trade secrets of (i) any former, current or future employer, (ii) any person to whom Consultant has previously provided, currently provides or may in the future provide services, or (iii) any other person to whom Consultant owes an obligation of confidentiality. Consultant will not bring onto the premises of the Company any unpublished documents or any property belonging to any person referred to in the foregoing clauses (i) - (iii) of this Section 2.5 unless consented to in writing by such person. Without limiting the generality of the foregoing, Consultant will not disclose to the Company, and will not use for the benefit of the Company, any information relating to or arising out of Consultant’s work conducted at his present employer, or utilizing the funds, personnel, facilities, materials or other resources of his present employer, until such information has been published.
2.6 Non-Exclusivity of Confidentiality Obligations. The obligations of Consultant under this Section 2 are without prejudice, and are in addition to, any other obligations or duties of confidentiality, whether express or implied or imposed by applicable law, that are owed to the Company or any other person to whom the Company owes an obligation of confidentiality.
3. Ownership.
3.1 Assignment. Consultant agrees that all copyrights and copyrightable material, notes, records, drawings, designs, inventions, ideas, discoveries, enhancements, modifications, know-how, improvements, developments, discoveries, trade secrets, data and information of every kind and description conceived, generated, made, discovered, developed or reduced to practice by Consultant, solely or in collaboration with others, during the Term and in the course of performing Services under this Agreement (collectively, “Inventions”), are, as between the Company and Consultant, the sole and exclusive property of the Company. Consultant agrees to disclose such Inventions promptly to the Company and hereby assigns, and agrees to assign, all of Consultant’s right, title and interest in and to any such Inventions promptly to the Company without royalty or any other consideration and to execute all applications, assignments or other instruments reasonably requested by the Company in order for the Company to establish the Company’s ownership of such Inventions and to obtain whatever protection for such Inventions, including copyright and patent rights in any and all countries on such Inventions as the Company shall determine.
3.2 Further Assurances. Consultant agrees to assist the Company, or its designee, in every reasonable way to secure the Company’s rights in Inventions and any copyrights, patents or other intellectual property rights relating to all Inventions (the “Proprietary Rights”) in any and all countries, including the disclosure to the Company of all pertinent information and data with respect to all Inventions, the execution of all applications, specifications, oaths, assignments and all other instruments that the Company may deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive right, title and interest in and to all Inventions, and any copyrights, patents, or other intellectual property rights relating to all Inventions. Consultant also agrees that Consultant’s obligation to execute or cause to be executed any such instrument or papers shall continue after the termination of this Agreement.
3.3 Pre-Existing Materials. Subject to Section 3.1, Consultant agrees that if, in the course of performing the Services, Consultant incorporates into any Invention developed under this Agreement any pre-existing invention, improvement, development, concept, discovery or other proprietary information owned by Consultant or in which Consultant has an interest, (i) Consultant will inform the Company, in writing before incorporating such invention, improvement, development, concept, discovery or other proprietary information into any Invention, and (ii) the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify, use and sell such item as part of or in connection with such Invention. Consultant will not incorporate any invention, improvement, development, concept, discovery or other proprietary information owned by any third party into any Invention without the Company’s prior written permission.
3.4 Attorney-in-Fact. Consultant agrees that, if the Company is unable because of Consultant’s unavailability, mental or physical incapacity, or for any other reason, to secure Consultant’s signature for the purpose of applying for or pursuing any application for any United States or foreign patents, mask work or copyright registrations covering the Inventions assigned to the Company in Section 3.1, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf to execute and file any such applications and to do all other lawfully permitted acts only to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by Consultant.
3.5 Waiver; Non-Exclusivity of Obligations. Consultant hereby waives and quitclaims to the Company any and all claims of any nature whatsoever that may now or hereafter have for infringement of any Inventions and Proprietary Rights assigned Consultant hereunder to the Company. Without the prior written consent of the Company, Consultant will not, at any time, file any patent or copyright application with respect to, or claiming, any Inventions. The obligations of Consultant under this Section 3 are without prejudice, and are in addition to, any other obligations or duties of Consultant, whether express or implied or imposed by applicable law, to assign to the Company all Inventions and all Proprietary Rights.
4. Representations and Warranties. Consultant represents and warrants to the Company that: Consultant is legally able to enter into this Agreement and that Consultant’s execution, delivery and performance of this Agreement will not and does not conflict with any agreement, arrangement or understanding, written or oral, to which Consultant is a party or by which Consultant is bound; Consultant is under no physical or mental disability that would hinder his performance of the professional duties to be rendered by Consultant under this Agreement; Consultant is not a party to any civil, criminal or administrative suits or proceedings, or aware of any threatened actions of such a nature; Consultant has never been convicted of a crime, is not now under indictment, and is unaware of any such threatened actions; and Consultant has never been subjected to disciplinary proceedings or investigation by any State agency or other governmental agency.
5. Term and Termination.
5.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date, and shall remain in full force and effect until the earlier of (i) termination by either party upon sixty (60) days written notice, (ii) Consultant’s death or disability, or (iii) termination as provided in Section 5.2.
5.2 Termination. The Company may terminate this Agreement immediately and without prior notice if Consultant refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement and fails to cure such breach (if such breach is curable) within fifteen (15) days of notice of such breach by the Company.
5.3 Survival. Upon termination of this Agreement, the terms and conditions of Sections 2, 3, 7, 8 and 9 shall survive and all other rights and duties of the Company and Consultant toward each other shall cease, except that the Company will pay, within thirty (30) days after the effective date of termination, all amounts owing to Consultant for Services completed and accepted by the Company prior to the termination date and related expenses, if any, submitted in accordance with the Company’s policies and in accordance with the provisions of this Agreement.
6. Benefits; Taxes. The Company and Consultant agree that, except as may be required under applicable law, Consultant will not be eligible to receive any Company-sponsored benefits including vacation, medical or life insurance or any other fringe benefits and that the Company will not be responsible for withholding or paying any income, payroll, VAT or other taxes
7. Indemnification. The Company shall defend, indemnify and hold Consultant harmless from and against any and all claims, demands, losses, damages, liabilities (including without limitation product liability), settlement amounts, costs and expenses whatsoever (including without limitation reasonable attorneys’ fees and costs and including, without limitation, product liability claims) arising from or relating to any claim, action or proceeding made or brought against Consultant or the Company as a result of, or associated with, the development, use, manufacture, marketing or sale of products regarding which Consultant has provided Services unless such liability arises from Consultant’s or Consultant’s assistants’, employees’ or agents’ negligence, intentional misconduct or breach of this Agreement.
8. Non-Compete; Nonsolicitation; Non-Disclosure.
8.1 Non-Compete. During the Term of this Agreement, Consultant will not, without the Company’s prior written consent, become employed by or render services to any other person or entity engaged in the business of developing or marketing drug programs focusing on inhibitors of protein phosphatases (a “Competing Business”).
8.2 Nonsolicitation. During the Term of this Agreement and for a period of six (6) months thereafter (the “Restricted Period”), Consultant will not, without the Company’s prior written consent, directly or indirectly, whether for Consultant’s own account or for the account of any other person, firm, corporation or other business organization, solicit, entice, persuade, induce or otherwise attempt to influence any person or business who is, or during the period of Consultant’s engagement by the Company was, an employee, contractor, partner, supplier, customer or client of the Company or its affiliates to leave or otherwise stop doing business with the Company.
8.3 Non-Disclosure. Consultant agrees that without the prior written consent of the Company, Consultant will not intentionally generate any publicity, news release or other announcement concerning the engagement of Consultant hereunder or the services to be performed by Consultant hereunder or otherwise utilize the name of the Company or any of its affiliates for any advertising or promotional purposes.
8.4 Reasonableness of Restrictions. Consultant hereby acknowledges and agrees that the foregoing restrictions contained in this Section 8 are reasonable, proper and necessitated by the legitimate business interests of the Company and will not prevent Consultant from earning a living or pursuing his career. In the event that a court finds this Section 8, or any of its restrictions, to be unenforceable or invalid, Consultant and the Company hereby agree that (i) this Section 8 will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law and (ii) Consultant shall be bound, and such court shall enforce, this Section 8 as so modified.
9. Voluntary Nature of Agreement. Consultant acknowledges and agrees that Consultant is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Consultant further acknowledges and agrees that Consultant has carefully read this Agreement and has asked any questions needed to understand the terms, consequences and binding effect of this Agreement and fully understands it to Consultant’s satisfaction. Finally, Consultant agrees that Consultant has been provided an opportunity to seek the advice of an attorney of its choice before signing this Agreement.
10. Remedies. Consultant acknowledges and agrees that the agreements and restrictions contained in Sections 2, 3 and 8 are necessary for the protection of the business and goodwill of the Company and are reasonable for such purpose. Consultant acknowledges and agrees that any breach of the provisions of Sections 2, 3 and 8 may cause the Company substantial and irreparable damage for which the Company cannot be adequately compensated by monetary damages alone, and, therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief without the necessity of proving actual damages.
11. Miscellaneous.
11.1 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to conflicts of law rules.
11.2 Assignability; Status of Relationship. Except as otherwise provided in this Agreement, Consultant may not sell, assign or delegate any rights or obligations under this Agreement. Consultant is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Consultant and the Company for any purpose.
11.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement.
11.4 Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.
11.5 Notices. Any notice or other communication required or permitted by this Agreement to be given to a party shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, sent via electronic mail, or mailed by U.S. registered or certified mail (return receipt requested). If by mail, delivery shall be deemed effective (3) business days after mailing in accordance with this Section 11.5.
If to the Company, to:
Lixte Biotechnology Holdings, Inc.
Attention: Chief Executive Officer
000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Pasadena, California 91101
xxxx@xxxxx.xxx
If to Consultant, to:
Xxx X.X. Xxxxxxxxx, MD, PhD
Laag Nieuwkoop 10
3628 GC Kockengen
The Netherlands
x.xxxxxxxxx@xxxxx.xxx
The address for notice on the signature page to this Agreement or, if no such address is provided, shall be to the last address of Consultant provided by Consultant to the Company.
11.6 Amendments; Waiver. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Consultant and the Company.
11.7 Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
11.8 Further Assurances. Consultant agrees, upon request, to execute and deliver any further documents or instruments necessary or desirable to carry out the purposes or intent of this Agreement.
11.9 Severability. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
11.10 Counterparts and Facsimiles. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Facsimile signatures shall be deemed original signatures for all purposes.
11.11 Acknowledgement. CONSULTANT UNDERSTANDS THAT THIS AGREEMENT AFFECTS HIS RIGHTS TO CERTAIN INVENTIONS, AND RESTRICTS HIS RIGHTS TO DISCLOSE OR USE CONFIDENTIAL INFORMATION, AND TO COMPETE WITH THE COMPANY DURING, OR SUBSEQUENT TO, THE TERMINATION OF THIS AGREEMENT.
[Signature Page Follows]
In Witness Whereof, the parties hereto have executed this Consulting Agreement as of May 31, 2024.
| CONSULTANT | LIXTE BIOTECHNOLOGY HOLDINGS, INC. | |||
| By: | ||||
| Name: | Xxx X.X. Xxxxxxxxx | Name: | Xxx xxx xxx Xxxx | |
| Title: | President and Chief Executive Officer | |||
EXHIBIT A
SERVICES AND COMPENSATION
1. Services. Consultant shall play a leadership role in the planning, implementation and oversight of clinical trials. Consultant shall be responsible for assisting and developing strategic clinical goals and the implementation and safety monitoring of investigational studies. Consultant shall be the primary medical monitor for all clinical investigational studies, and for the oversight of third party Clinical Research Organization monitors. Consultant shall be responsible for the development and implementation of regulatory strategy and the primary contact for regulators such as the FDA and EMA. Consultant shall work closely with the Company’s Chief Executive Officer on the development of strategic goals needed to insure the timely implementation of appropriate clinical studies needed for successful registration of therapeutic products. Although the Company’s headquarters are based in the United States, Consultant’s Services hereunder will be principally rendered in the Netherlands, where Consultant resides.
2. Compensation.
| A. | Consultant shall receive options to purchase 15,000 shares of the Company’s Common Stock (the “Options”). The Options shall have a term of five years, and an exercise price equal to the closing price of the Company’s Common Stock on the Effective Date. The Options shall vest quarterly in equal installments over a period of three (3) years commencing on the last day of each calendar quarter commencing September 30, 2024 until fully vested. | |
| B. | The Company will pay Consultant cash compensation of 104,000 Euros per annum. Consultant will be paid on a monthly basis. All amounts payable to Consultant hereunder shall be net of applicable withholding taxes, if any. | |
| C. | The Company will reimburse Consultant for all reasonable expenses incurred by Consultant in performing the Services pursuant to this Agreement, provided that Consultant receives written consent from the Company’s Chief Executive Officer prior to incurring any expenses over 250 Euros and submits receipts for such expenses to the Company in accordance with Company policy. |
