CONSULTING AGREEMENT
Exhibit
10.1
THIS
CONSULTING AGREEMENT, dated January 15, 2007 (the “Agreement”)
is by
and between XXXXXX XXXXX XXXX, M.D., PH.D (the “Consultant”),
and
ZIOPHARM ONCOLOGY, INC., a Delaware corporation (the “Company”).
WITNESSETH:
WHEREAS,
the
current employment agreement, dated as of January 15, 2004, by and between
the
Consultant and the Company (the “Employment
Agreement”)
will
expire in accordance with its terms on January 14, 2007 and will not be
extended;
WHEREAS,
the
Company will not exercise its option under Section 6(g) of the Employment
Agreement to retain the Consultant as a consultant as set forth in the
Employment Agreement;
WHEREAS,
the
Company wishes to retain the Consultant to render services for the Company
on
the terms and conditions set forth in this Agreement, and the Consultant
wishes
to be retained by the Company on such terms and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Section
1. Title;
Nature of Consulting.
The
Consultant shall hold the title Chief Scientific Advisor. The Consultant
shall
perform services for the Company as outlined by the terms of this Agreement
herein (“Consulting
Services”).
In
addition, the Consultant shall continue to serve as a member of the Company’s
Medical Advisory Board.
Section
2. Compensation.
a)
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In
exchange therefor, the Company shall pay the Consultant for Consulting
Services actually requested by and provided to the Company $100,000
per
year, payable in equal monthly installments in arrears.
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b)
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If
the Consultant elects to continue medical coverage under the Company’s
medical plan pursuant to the provisions of the Consolidated Omnibus
Budget
Reconciliation Act of 1986 (“COBRA”),
the Company hereby agrees to pay the cost of such continuation
coverage
during the term of this Agreement.
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c)
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In
addition to the payment for Consulting Services set forth above,
the
Company shall compensate the Consultant for his services as a member
of
the Company’s Medical Advisory Board in the same amount and in the same
manner as it compensates the other members of the Medical Advisory
Board.
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d)
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In
the event that the Consultant travels for or on behalf of the Company,
the
Company hereby agrees to reimburse the Consultant as provided under
Section 4 below.
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Section
3. Consulting
Services.
The
Consultant shall be available for up to 10 hours per month, as requested
by the
Company, to provide advice regarding development and clinical testing of
the
Company’s pharmaceutical products and such other matters pertaining to the
Company’s business as may be requested by Xx. Xxxxxxxx X. Xxxxx or Dr. Xxxxx
Xxxxxxxx. The Consultant shall use his best efforts to advance the best
interests of the Company.
Section
4. Travel.
The
Consultant has no obligation to travel for or on behalf of the Company. In
the
event the Consultant consents to travel on behalf of the Company in any
particular instance, the Company will reimburse the Consultant’s reasonable
travel costs, provided that documentation is supplied in accordance with
the
Company’s regular travel expense reimbursement policies in effect from time to
time; and the Company will pay the Consultant $1,000 per day for his services
while traveling, provided that on each such day the Consultant devotes at
least
2 hours to the Company’s business. The payments and time commitments in this
Section 4 will be in addition to the payments and time commitments referred
to
in Section 2 and Section 3 hereof.
Section
5. Representations
and Acknowledgements.
a)
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Consultant
represents that he has the requisite expertise, ability and legal
right to
render the Consulting Services, and will perform the Consulting
Services
in an efficient manner and in accordance with the terms of this
Agreement.
The Consultant will abide by all laws, rules, and regulations that
apply
to the performance of the Consulting Services.
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b)
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Consultant
acknowledges and agrees that the Consultant is an independent contractor
and will perform the Consulting Services as such and not as an
employee of
the Company. Accordingly, nothing in this Agreement shall be construed
as
establishing a relationship of employer and employee, or principal
and
agent, between the Company and the Consultant.
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c)
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Each
party herein acknowledges that the Consultant is not an employee
for state
or federal tax purposes or any other purpose, and the Consultant
shall be
solely responsible for the payment of all applicable federal, state,
local
and foreign income taxes, self-employment taxes, and any other
applicable
taxes, withholdings, required insurance contributions or other
charges or
deductions under the laws of any and all applicable jurisdictions.
The
Consultant acknowledges that the Company will not withhold federal,
state,
local or foreign income taxes, pay Social Security contributions
or
provide disability insurance coverage for the Consultant with respect
to
his services under this Agreement, and the Consultant will not
participate
in any of the Company’s employee benefit plans with respect to his period
of service as a consultant under this
Agreement.
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d)
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Consultant
acknowledges and agrees that the Consultant is solely responsible
for his
own acts as they relate to any services provided, and will not
have
authority to speak for, represent or obligate the Company in any
way.
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Section
6. Consultant’s
Covenants.
a)
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Consultant
shall be available to perform the Consulting Services for the term
of this
Agreement and shall not enter into any other agreement with any
other
person or entity that would restrict the Consultant’s ability to fully
perform the Consulting Services under this Agreement. In the event
that
the Consultant becomes unavailable or enters into such an agreement,
the
Company will have the option to terminate this Agreement without
further
liability to the Consultant to pay for any Consulting Services
other than
those services previously rendered. The Consultant will enter into
an
Invention, Non-Disclosure and Non-Competition Agreement in the
form of the
Agreement attached hereto as Schedule 1, which will provide for
certain
non-competition covenants applicable during the period of his service
under this Agreement.
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b)
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During
the term of this Agreement, the Consultant shall not directly or
indirectly disparage, whether or not true, the name or reputation
of the
Company or any of its affiliates, officers, directors, employees
or
shareholders.
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Section
7. Indemnification.
The
Consultant agrees to indemnify and hold the Company harmless for any injury
occurring to the property or person of the Consultant as a result of the
Consultant’s performance of Consulting Services under this Agreement, provided
that said injury has not occurred due to the gross negligence of the Company.
Section
8. Miscellaneous.
a. Term;
Termination. This
Agreement is effective as of January 15, 2007 and shall continue thereafter
for
one calendar year, ending as of January 14, 2008. The Company or the Consultant
may terminate this Agreement at any time on 30 days notice, with no continuing
obligation (except as required under the Invention, Non-Disclosure and
Non-Competition Agreement) for either party.
b. Assignment.
No
assignment by the Consultant of this Agreement or any sums due under it,
will be
binding on the Company without the Company’s written consent.
c. Application
of Law.
This
Agreement and the application or interpretation hereof shall be governed
exclusively by the law of the State of New York (without regard to conflicts
of
law principles).
d. Headings.
The
headings in this Agreement are inserted for convenience only and do not
describe, interpret, define or limit the scope, extent or intent of the
Agreement or any provision hereof. Unless the context requires otherwise,
all
references in this Agreement to Sections shall be deemed to mean and refer
to
Sections of this Agreement. The words “herein” and “hereunder” and other words
of similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
e. Number
and Gender.
Where
the context so indicates, the masculine includes the feminine and the neuter,
the neuter includes the masculine and the feminine and the singular includes
the
plural.
f. Binding
Effect.
Except
as herein otherwise provided to the contrary, this Agreement shall be binding
upon and inure to the benefit of the Consultant and the Company and their
respective successors and assigns.
g. Severability.
The
parties hereto intend that this Agreement shall be enforced to the fullest
extent permissible under the law and public policies of each state and
jurisdiction in which such enforcement is sought, but that unenforceability
(or
the modification to conform with such laws or public policies) of any provision
hereof, shall not render unenforceable or impair the remainder of this
Agreement. Accordingly, in the event that any provision of this Agreement
shall
be determined to be invalid or unenforceable (including, without limitation,
as
to duration or geographic area), either in whole or in part, this Agreement
shall be deemed amended to delete or modify as necessary, the offending
provision and to alter the balance of this Agreement in order to render the
same
valid and enforceable to the fullest extent permissible.
h. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto relating
to the subject matter hereof, and supersedes all previous contracts and
agreements between the parties hereto, both oral and written. This Agreement
may
not be modified, except in a writing signed by both parties hereto.
i. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS] IN WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first
written
above.
XXXXXX
XXXXX XXXX, M.D., PH.D
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By: | ||
Title: |
ZIOPHARM
ONCOLOGY, INC.
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By: | ||
Name: Title:
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