Published on November 14, 2007
CONSULTING
AGREEMENT
This
CONSULTING AGREEMENT (this “Agreement”),
is
entered into on September 12, 2007 by and between Lixte Biotechnology
Holdings, Inc., a Delaware corporation (the “Company”),
and
Gil Schwartzberg (“Consultant”).
R
E C
I T A L S
WHEREAS,
Consultant has certain knowledge, expertise, experience and reputation which
the
Company desires to avail itself; and
WHEREAS,
upon the terms and subject to the conditions of this Agreement, the Company
desires to retain Consultant to provide certain consulting services to the
Company, and Consultant wishes to render such services.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and agreements herein contained, Consultant and the Company by this Agreement
agree as follows:
1. Engagement.
The
Company hereby agrees that, commencing on September 12, 2007 (the “Effective
Date”),
the
Company shall engage Consultant and Consultant hereby accepts such engagement
with the Company, upon the terms and subject to the conditions hereinafter
set
forth.
2. Term.
The
term of Consultant’s engagement under this Agreement (the “Term”)
shall
commence on the Effective Date and, subject to the provisions of Section
6,
shall continue until the fourth anniversary of the Effective Date.
3. Services.
Consultant
shall provide the following consulting services to the Company (“Services”):
| (a) |
Consult
on financing, capital structure and strategic development;
and
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| (b) |
Assist
management in developing presentations to the investment community
and the
Company’s shareholders.
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4. No
Authority to Bind.
Except
as directed and authorized by the Chief Executive Officer of the Company
in
writing, Consultant shall not execute or agree to any contract, agreement
or
instrument on behalf of the Company.
5. Compensation.
The
Company shall pay or issue to Consultant:
| (a) |
$1,000
per day for any meetings outside New York
City;
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| (b) |
An
option to purchase 1,000,000 shares of the Company’s Common Stock at an
exercise price of $1.00 per share, 50% of which will vest on the
Effective
Date of this Agreement, and 50% of which will vest on the first
anniversary of the Effective Date.
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All
such
options granted pursuant to this Agreement shall be subject to the terms
and
conditions of the Stock Option Agreement between the Company and Consultant.
Any
grant of options to Consultant shall be conditioned upon receipt of such
Stock
Option Agreement.
6. Termination.
Either
Consultant or the Company may terminate this Agreement at any time for any
reason upon 90-days written notice delivered to the other party. In addition,
the Company may terminate this Agreement at any time “for cause” upon delivery
of written notice to Consultant, in which case such termination shall be
effective immediately upon Consultant’s receipt of the written notice.
“Cause”
shall mean:
| (a) |
Consultant
is convicted of, or pleas nolo
contendere
(no contest) to, any crime (whether or not involving the Company)
constituting a felony in the jurisdiction involved;
or
|
| (b) |
Consultant
is in material breach of any provision of this Agreement or any other
agreement with the Company, or willfully fails to or refuses to comply
with the lawful directives of the Chief Executive Officer or the
Board in
the performance of his duties under this Agreement (other than a
failure
caused by temporary disability).
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7. Proprietary
Rights and Nondisclosure and Nonuse of Confidential Information.
7.1 It
is
understood that during the term of this Agreement, Consultant may be exposed
to
information that is confidential and proprietary to the Company. All such
information (hereinafter “Lixte Confidential Information”), whether written or
oral, tangible or intangible, that is made available, disclosed, or otherwise
made known to Consultant by the Company or its employees under this Agreement
shall be considered confidential and shall be considered the sole property
of
the Company. Lixte Confidential Information shall be (a) marked as confidential,
or (b) otherwise represented by the disclosing party as confidential either
before or within a reasonable time after its disclosure to the receiving
party.
This obligation of confidentiality shall remain in effect for a period of
five
(5) years after the expiration or termination of this Agreement.
7.2 The
obligations of confidentiality set forth in Paragraph 7.1 shall not apply
to any
information that:
| (a) |
is
or hereafter becomes generally available to the public other than
by
reason of any default with respect to a confidentiality obligation
under
this Agreement; or
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| (b) |
was
already known to the recipient as evidenced by prior written documents
in
its possession; or
|
| (c) |
is
disclosed to the recipient by a third party who is not in default
of any
confidentiality obligation to the disclosing party hereunder;
or
|
| (d) |
is
developed by or on behalf of the receiving party, without reliance
on
confidential information received hereunder as evidenced by written
documents in its possession; or
|
| (e) |
has
been approved in writing by one party for publication by the other
party;
or
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| (f) |
is
required to be disclosed in compliance with applicable laws or
regulations.
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8. Nonsolicitation;
Nondisparagement.
Consultant acknowledges that during the course of Consultant’s engagement by the
Company, Consultant has and will continue to have the opportunity to develop
relationships with existing employees, clients, distributors, and prospective
clients, and other business associates of the Company, which relationships
constitute goodwill of the Company and that the Company would be irreparably
damaged if Consultant were to take actions that would damage or misappropriate
such goodwill. Consultant accordingly agrees that during the period commencing
on the Effective Date and ending on the first anniversary of the conclusion
of
the Term, Consultant shall not, directly or indirectly, either for the benefit
of Consultant or any other person, do any of the following:
| (a) |
Solicit
any employee of the Company to terminate his or her employment with
the
Company, or employ any such individual during his or her employment
with
the Company and for a period of six months after such individual
terminates his or her employment with the
Company;
|
| (b) |
Solicit
any distributor or customer, or prospective distributor or customer,
of
the Company to terminate his or her relationship with the Company,
or
accept any business from any such distributor or customer, or prospective
distributor or customer, of the Company;
or
|
| (c) |
Make
any public statement, comment or remark that disparages the integrity
or
competence of a Company officer, director, employee, or shareholder,
that
disparages any product or service of the Company, or that is reasonably
likely to cause injury to the relationships between the Company and
any
existing or prospective distributor, client, lessor, lessee, contractual
counterparty, vendor, supplier, customer, employee, consultant or
other
business associate of the Company. Likewise, the Company agrees that
it
shall not make any public statement, comment or remark that disparages
the
integrity or competence of Consultant.
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9. Status
as Consultant.
9.1 Intention
of the Parties.
It is
mutually understood and agreed that Consultant, while performing all
responsibilities under this Agreement, is and shall at all times be, act,
function, and perform all services and responsibilities in the legal capacity
of
an independent contractor. It is mutually understood and agreed that no work,
act, commission or omission of any act by Consultant or the Company pursuant
to
the terms and conditions of this Agreement shall be construed to make or
render
Consultant an employee of the Company. Furthermore, Consultant shall not,
under
any circumstances, hold itself out to be an employee of the
Company.
9.2 Independent
Consultant to Control Performance.
The
Company shall have no right or authority to direct or control Consultant
with
respect to the performance of Consultant’s duties under this Agreement, or with
respect to any other matter, except as otherwise provided by this Agreement.
It
is further understood that Consultant is free to contract with other companies
to provide professional services, as long as that service does not violate
the
provisions of Sections 7 or 8.
9.3 Expenses.
Except
as provided in this Section 9.3 and Section 5(a), Consultant shall be fully
responsible to pay any and all expenses and disbursements that it incurs
in the
performance of any services or obligations covered by this Agreement. The
Company shall, however, reimburse Consultant for all actual and reasonable
travel expenses incurred by Consultant when Consultant is traveling at the
request of the Company in connection with its duties; provided,
that
(i) Consultant shall not be entitled to reimbursement for any individual
expenditure in excess of $1,000, unless such expenditure shall have been
pre-approved in writing by the Company’s Chief Executive Officer, and (ii)
Consultant shall not be entitled to reimbursement for a particular expenditure
if Consultant does not submit to the Company sufficient documentation evidencing
such expenditure.
9.4 Taxes
and Benefit Programs.
Consultant shall be liable and responsible to pay any and all taxes relating
to
all amounts paid to Consultant hereunder. It is understood and agreed that
because Consultant is not an employee of the Company, the Company shall not
withhold any taxes from amounts paid to Consultant. Consultant shall be fully
and solely responsible to report income and expenses. Consultant acknowledges
that it is solely responsible for its own tax planning and that the Company
has
not provided Consultant with any tax advice regarding the tax implications
of
this Agreement. It is also understood and agreed that Consultant shall not
be
eligible to participate in any benefits or programs sponsored or financed
by the
Company for its employees.
10. Miscellaneous.
10.1 Notices.
All
notices, requests, demands and other communications required or permitted
to be
given hereunder shall be in writing and shall be deemed to have been duly
given
upon receipt, if delivered personally, upon confirmation of receipt, if given
by
electronic facsimile and on the third business day following mailing, if
mailed
first-class, postage prepaid, registered or certified mail addressed as
follows:
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If
to the Company to:
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Lixte,
Inc.
6
Tinker Lane
East
Setauket, New York 11733
Attn:
John Kovach, M.D.
|
|
Phone: (631)
751-2882
Fax: (631)
982-5050
Email: kovach1329@yahoo.com
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If
to Consultant:
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Phone:
Fax:
e-mail:
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Any
party
may by notice given in accordance with this Section 11.1 to the other parties
designate another address or person for receipt of notices
hereunder.
10.2 Entire
Agreement.
This
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. This Agreement may be amended, superceded, canceled,
renewed or extended, and the terms hereof or thereof may be waived, only
by a
written instrument signed by each of the parties hereto or thereto or, in
the
case of a waiver, by the party waiving compliance.
10.3 Attorneys’
Fees.
If any
legal action or arbitration arises under this Agreement, arises by reason
of any
asserted breach of it, or arises between the parties and is related in any
way
to the subject matter of the Agreement, the prevailing party shall be entitled
to recover all costs and expenses, including reasonable attorneys’ fees,
arbitration costs, investigative costs, reasonable accounting fees and charges
for experts.
10.4 Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective permitted successors and permitted assigns. Neither this
Agreement nor any of the rights hereunder may be assigned by any party, nor
may
any party delegate any obligations hereunder or thereunder, without the written
consent of the other party hereto or thereto; provided,
however,
that
the Company may assign its rights hereunder to any subsidiary or to any person
or entity that acquires, directly or indirectly, all or substantially all
of the
Company’s business (whether through acquisition of assets, stock or any other
means). Any non-permitted assignment or attempted assignment shall be void,
ab
initio.
Nothing
herein is intended or shall be construed to give any person any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any
provision contained herein, except as otherwise provided herein.
10.5 Counterparts.
This
Agreement may be executed by the parties in separate counterparts, each of
which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument. Delivery of any
counterpart signature page of this Agreement, written communication or notice
hereunder by facsimile shall be equally as effective as delivery of a manually
executed original of such counterpart signature page, communication or
notice.
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10.6 Further
Assurances.
Each
party hereto shall execute such documents and other papers and take such
further
actions as may be reasonably required or desirable to carry out the provisions
of this Agreement and the transactions contemplated hereby.
10.7 Agreement
Authorized.
Consultant hereby represents and warrants that it is free to enter into this
Agreement and that it is free to render its services pursuant to this Agreement,
and that Consultant is not subject to any obligation or restriction that
would
prevent it or them from discharging their duties under this Agreement, and
agrees to indemnify and hold harmless the Company from and with respect to
any
liability, damages or costs, including attorneys’ fees, arising out of any
breach by Consultant of this representation and warranty.
10.8 Governing
Law.
The
validity, interpretation and construction of this Agreement and each part
thereof will be governed by the laws of the State of New York.
10.9 Entire
Agreement.
This
Agreement, and any other agreement explicitly mentioned herein, by and between
the Company and Consultant, set forth the entire agreement between the Company
and Consultant with respect to the subject matter hereof, and supersedes
any and
all prior agreements between the Company and Consultant, whether written
or
oral, relating to any or all matters covered by and contained or otherwise
dealt
with in this Agreement. This Agreement does not constitute a commitment of
the
Company with regard to Consultant’s engagement, express or implied, other than
to the extent expressly provided for herein.
10.10 Survival
at Termination.
The
termination of this Agreement shall not affect the obligations to the parties
hereunder which by the nature thereof are intended to survive any such
termination including, without limitation, the obligations of Consultant
under
Sections 7 and 8.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Consulting Agreement
as of the day and year first above written.
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LIXTE
BIOTECHNOLOGY HOLDINGS, INC.
By:___________________________
John
Kovach
Its:
President
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__________________________________
Gil
Schwartzberg
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