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EXHIBIT 10.47
CONFIDENTIAL
LXR Biotechnology Inc.
CONSULTING AGREEMENT
This agreement is made and entered into this _____ day of _____________, 1998
(the "Effective Date") by and between LXR Biotechnology Inc., a Delaware
corporation having its principal place of business at 0000 Xxxxxx Xxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (the "Company") and G. Xxxx Xxxx, residing at 000
Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("Consultant").
AGREEMENT
In consideration of the mutual covenants set forth below, the parties hereby
agree as follows:
1. Engagement of Services.
Consultant, pursuant to the provisions of this Agreement, is hereby retained by
the Company to perform services for the Company, including working closely with
the CEO and other key management to provide guidance with respect to potential
strategic transactions, partnering arrangements and public and investor
relations. Consultant shall perform services as requested by the Company from
time to time to the best of his ability, such services to be performed at such
place or places and at such times as shall be mutually agreeable to the Company
and Consultant.
It is understood that Consultant is presently affiliated with several other
companies in the field of biotechnology. Consultant represents and warrants that
the performance of his duties under this Agreement will not conflict with
Consultant's responsibilities and obligations to such other companies and as
such shall not create any rights of such other companies in any contributions
hereunder. The Consultant has informed the Company that certain restrictions
imposed on him by an existing agreement between Consultant and * * affect his
ability to be involved with a company developing products which are in direct
competition with certain of * * products or to * *. The Company agrees to * *
prior to the earlier of * * or the termination of this Agreement, unless
Consultant is first able to obtain release from * * to take such action. The
Company further agrees to permit Consultant to immediately terminate this
Agreement to dissociate himself from the Company where Consultant's affiliation
with the Company could give rise to a conflict with Consultant's obligations
arising from any of Consultant's previous affiliations. Consultant agrees to
indemnify, defend and hold
THE SYMBOL "* *" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
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CONFIDENTIAL
harmless the Company and its officers, directors, employees and agents from and
against losses, damages, costs, claims, suits and expenses, including the cost
and expense of handling and defending such claims and suits, that are
attributable to the breach by Consultant of his representations and warranties
set forth in this paragraph, provided that such losses, damages, costs, claims,
suits and expenses are not directly attributable to: a) the Company * * prior to
the earlier of * * or the termination of this Agreement; or b) an action the
Company takes despite adequate advanced written notice from Consultant that such
action will * * under the * * Agreement.
2. Compensation.
As full and complete compensation for Consultant's services and for the
discharge of all Consultant's obligations hereunder, the Company shall pay
Consultant according to the following schedule:
(a) As of the Effective Date of this Agreement, and subject to the approval of
its Board of Directors, the Company hereby grants to Consultant an option to
purchase shares of the common stock of the Company ("Common Stock"). The total
number of shares of Common Stock subject to this option is Two Hundred Fifty
Thousand (250,000) (the "Stock Option"). This Stock Option is subject to the
limitations contained in the 1993 Stock Option Plan, as amended, attached hereto
as Exhibit A, and hereby incorporated by reference. Unless sooner terminated as
set forth herein or in the 1993 Stock Option Plan, this Stock Option terminates
ten (10) years from the date the Stock Option is granted. This Stock Option
shall become exercisable on the following vesting schedule: 1/5th of the shares
of stock shall vest upon the close of business on the Effective Date of this
Agreement, and, thereafter, the remaining stock shall vest at a rate of 1/36th
per month for every month after the Vesting Start Date (the Effective Date of
this Agreement being considered for purposes of this agreement the "Vesting
Start Date"). Vesting will occur on the same day of the month as the day set
forth in the Vesting Start Date. The exercise price of this option shall be
equal to the fair market value of the Company's Common Stock on the Vesting
Start Date. The fair market value is deemed to be the closing price on the
American Stock Exchange as of the last trading day prior to the Vesting Start
Date (or the average closing price over the number of consecutive working days
preceding the option grant date as the Board of Directors of the Company shall
deem appropriate).
(b) If the Company enters into a cooperative development agreement or other
strategic alliance with a significant pharmaceutical or biotechnology company
relating to one or more of the Company's products, and the Board of Directors
determines that Consultant has contributed in a significant way either to
introducing the companies or to successfully negotiating and entering into such
agreement, then 100,000 shares of the Stock Option shall vest immediately upon
such determination by the Board of Directors.
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CONFIDENTIAL
(c) In addition to such compensation, the Company will reimburse the Consultant
for travel and other out-of-pocket costs reasonably incurred by him in the
course of performing services under this Agreement; provided however, that the
Company shall not be obligated hereunder unless (i) the Company has agreed in
advance to reimburse such costs, and (ii) consultant provides the company with
appropriate receipts or other relevant documentation for all such costs as part
of any submission by consultant for reimbursement.
3. Independent Contractor.
It is understood and agreed that in his role as a consultant to the company
Consultant is an independent contractor and not an employee of the Company.
Consultant has no authority to obligate the Company by contract or otherwise.
Consultant will not be eligible for any employee benefits, nor will the Company
make deductions from Consultant's fees for taxes. Taxes shall be the sole
responsibility of Consultant. This Paragraph 3 shall have no bearing on
Consultant's role as a member of the Board of Directors of the Company, which
shall be defined by prevailing law as it may be supplemented by additional
agreement between Consultant and the Company.
4. Proprietary Information Agreement.
Consultant is bound by a Proprietary Information Agreement entered into with the
Company applicable to Consultant's activities under this Agreement.
5. Term and Termination.
This Agreement commences on the Effective Date of this Agreement, and, unless
terminated earlier as provided herein, shall continue for a term of three years.
5.1 During the term of this Agreement, either party can terminate
this Agreement without cause upon the herein specified period
of notice. The Company can termination this Agreement on six
(6) months written notice. Consultant can terminate this
Agreement on three (3) months written notice.
5.2 Upon termination of this Agreement by either party according
to paragraph 5.1, vesting of the Stock Option will terminate
and Consultant shall have the right to exercise his option to
the extent his right to exercise such option has accrued and
had not previously been exercised as of the date of such
termination.
6. Assignment.
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The rights and liabilities of the parties hereto shall bind and insure to the
benefit of their respective successors, heirs, executors and administrators, as
the case may be; provided that, as the Company has specifically contracted for
Consultant's services, Consultant may not assign or delegate Consultant's
obligations under this Agreement either in whole or in part without prior
written consent of the Company.
7. Governing Law; Severability.
This agreement shall be governed by the laws of the State of California. If any
provision of this Agreement is found by a court of competent jurisdiction to be
severed and the remainder of this Agreement shall continue in full force and
effect.
8. Complete Understanding; Modification
This agreement, and all other documents mentioned herein, constitute the final,
exclusive and complete understanding and agreement of the parties hereto and
supersede all prior understandings and agreements. Any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in
writing and signed by the parties hereto.
9. Notices.
Any notices required or permitted hereunder shall be given to the appropriate
party at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon personal delivery to
the appropriate address or sent by certified or registered mail, three days
after the date of mailing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
LXR Biotechnology Inc. CONSULTANT:
0000 Xxxxxx Xxx Xxxxx
Xxxxxxxx, XX 00000
By:_____________________________ ____________________________
L. Xxxxx Xxxxx G. Xxxx Xxxx
Chairman and CEO
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