Exhibit 10.38


 





MARKER THERAPEUTICS, INC.


 


CONSULTING SERVICES AGREEMENT


 


This Consulting Services
Agreement (“Agreement”) is hereby made and entered into this 19th day of October, 2018 (“Effective Date”)
by and between Marker Therapeutics, Inc., a Delaware corporation, having an address at 3200 Southwest Freeway, Suite 2240, Houston,
Texas 77027 and its subsidiaries (“Marker” or the “Company”), and Ann Leen, having an address at 2727 Drexel
Drive, Houston, Texas 77027 (“Consultant”). Marker and Consultant are referred to herein collectively as the “Parties”
and individually as a “Party.”


 


WITNESSETH:


 


WHEREAS, Marker
is in need of consulting assistance in the area of a Chief Scientific Officer;


 


WHEREAS, Consultant
has represented that Consultant is qualified to perform and possesses the knowledge to perform those certain services set forth
in this Agreement; and


 


WHEREAS, Marker
desires to engage Consultant as an independent contractor to perform those services set forth herein, and Consultant desires to
accept such engagement.


 


NOW, THEREFORE,
in consideration of the above recitals, which are incorporated herein as covenants, the mutual promises herein made and exchanged
and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:


 


	1.	Engagement. Marker hereby engages Consultant as an independent contractor to perform consulting
services set forth in this Agreement and in Schedule 1, Consulting Services, which is attached hereto and incorporated
herein by reference (collectively, the “Services” or “Consulting Services”). Consultant hereby accepts
such engagement under the terms set forth herein.



 


	2.	Compensation. Marker shall pay Consultant pursuant to the terms of Schedule 2, Compensation,
attached hereto. Consultant shall be entitled to reimbursement for reasonable expenses, including travel provided that Consultant
submits itemized statements of such expenses in a form acceptable to the Company. All travel within the continental U.S. will be
coach class unless otherwise authorized by an executive officer of the Company. Invoices are subject to review and approval by
Marker and if approved, will be paid no later than 30 days after receipt.



 


	3.	Stock Option Award. Upon execution of the Agreement, Marker will grant Consultant pursuant
to the Company’s 2014 Omnibus Stock Ownership Plan, as amended options to acquire up to 500,000 shares of Marker’s
common stock (the “Options”), in accordance with the terms provided the Stock Option Award Agreement attached as Exhibit
A. The Options shall become vested upon the Consultant’s continued performance of Services under this Agreement for four
years from the date of the grant of the Options with 125,000 shares of the Options vesting on the first anniversary of the date
of grant and the remaining options vesting evenly over the following thirty six (36) months. The Options shall be exercisable at
the closing price of Marker’s common stock as of the date of the grant of such Options.



 






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	4.	Term and Termination without Cause. The term of this Agreement shall be for twelve (12)
months from the Effective Date and may be renewed by written agreement of the Parties (collectively the “Term”). Either
Party may terminate this Agreement without cause by giving thirty (30) days notice providing written notice to the other Party,
provided that this Agreement shall terminate automatically in the event of the death or disability of Consultant.



 


	5.	Breach, Right to Cure, and Termination for Cause. In the event either Party breaches any
provision of this Agreement, the non-breaching Party may provide written notice of such breach to the breaching Party and the breaching
Party shall have seven (7) days from the date of notice to cure such breach. If such breach is not cured within seven (7) days
from the date of notice, the non-breaching Party may, in addition to any other remedies it may have, immediately terminate this
Agreement by providing written notice to the breaching Party.



 


	6.	Consultant Status. 



 


		6.1	Independent Contractor. Consultant’s relationship with Marker shall be that of an
independent contractor, and Consultant acknowledges and agrees that in performing all Services, Consultant is acting solely as
an independent contractor and not as an employee or agent of Marker and will not by reason of this Agreement or by reason of her
Consulting Services to the Company be entitled to participate in or to receive any benefit or right under any of the Company's
employee benefit or welfare plans. Consultant shall not hold herself out to be an employee or agent of Marker and may use Marker’s
name in her business only with prior written permission by Marker. Except as specifically authorized by the Company, Consultant
shall not enter into any agreements or incur any obligations on behalf of the Company.



 


		6.2	Taxes. Marker shall not be responsible to Consultant or to any governmental agency for the
withholding of federal or state income, social security or other taxes which are customarily imposed upon the salaries of employees.
Consultant acknowledges and agrees that as an independent contractor, Consultant is self-employed and that Consultant alone will
be responsible for federal, state and local taxes, social security withholding, fees, assessments, self-employment taxes, and any
other taxes on any compensation payable to Consultant by Marker under this Agreement (collectively the “Taxes”).



 






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		6.3	Best Efforts. It is recognized that Consultant is not obligated to devote all of her time,
energy and skill to the business interests of Marker but, at the same time, Consultant: (i) shall refrain from any other activity
(for herself or any other company) that would compete with or conflict with the activities of Marker related to the generation
and/or commercialization of T cells targeting non-viral tumor-associated antigens and/or cancer testis antigens; (ii) shall not
engage in any other endeavor which would unreasonably interfere with Consultant’s obligations under this Agreement; and (iii)
shall devote such time as may be necessary for the performance of the Services. The Parties acknowledge that Consultant is employed
by Baylor College of Medicine, a Texas non-profit corporation (“Baylor”) and Marker has an exclusive license agreement
with Baylor (the “License Agreement”).



 


		6.4	Non-Solicitation. During the Term of this Agreement and for a period of one (1) year subsequent
to the termination or expiration of this Agreement, Consultant shall not, without the prior written consent of Marker, directly,
indirectly, or through any other party solicit employees of Marker for employment by Consultant.



 


		6.5	Non-Competition. During the Term of this Agreement and for a period of one (1) year subsequent
to the termination or expiration of this Agreement, Consultant shall not, within the United States of America: (i) engage in any
employment, business, or activity or provide services to any third party that is in any way competitive with the business or activities
of Marker related to the generation and/or commercialization of T cells targeting non-viral tumor-associated antigens and/or cancer
testis antigens, or (ii) assist any other person or organization in competing with Marker or engaging in competition with the business
or activities of Marker related to the generation and/or commercialization of T cells targeting non-viral tumor-associated antigens
and/or cancer testis antigens. For the avoidance of doubt business or activities related to the generation and/or commercialization
of T cells targeting neo-epitopes are excluded from this agreement.



 


	7.	Release and Indemnification. Consultant shall be solely liable for any loss or damage to
any person or property caused by the actions or omissions of Consultant. Consultant hereby waives, releases, discharges and indemnifies
Marker and its employees, directors, officers and agents and holds the same harmless from and against, and Consultant assumes full
responsibility for: (i) any and all liabilities, costs, actions, demands or damages whatsoever, including attorneys’ costs
and fees, with respect to or relating to any injury, sickness, harm or damage incurred by the Consultant that is related to this
Agreement or the performance of the Services; (ii) injuries to persons, or damages to property, including theft, related to or
resulting from Consultant’s acts or omissions; (iii) the payment of any Taxes, including any fines, interest or penalties
associated, imposed or required with respect to this Agreement; and (iv) any liabilities, claims, and liens of Consultant.



 


	8.	Confidential Information and Rights to Materials.



 


		8.1	Definitions.



 


		8.1.1	The term “Company Documentation” shall mean notes, memoranda, reports, lists, records,
drawings, sketches, designs, specifications, software programs, books, files, forms, papers, accounts, data, documentation and
other materials of any nature and in any form, whether written, printed or in digital format or otherwise, whether prepared or
paid for by Consultant or anyone else relating to any matter related to the performance of the Services, the scope of the business
of Marker, or Marker’s dealings or affairs.



 






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		8.1.2	The term “Confidential Information” shall mean any information concerning the organization,
business or finances of Marker or of any third party which Marker is under an obligation to keep confidential that is maintained
by Marker as confidential. Such Confidential Information shall include, but is not limited to, trade secrets or confidential information
respecting patient or research participant lists, patient records, procedures, business plans and strategies, projects, plans,
proposals, research and development, inventions, products, designs, market research data or analyses, technical information, marketing
activities and procedures, methods, know-how, techniques, systems, processes, credit, financial and other data concerning Marker.
For purposes of this Agreement, Confidential Information shall not include any information: (i) that is publicly available at the
time of disclosure; (ii) that is or becomes generally known to the public through no fault of the Consultant; (iii) that is obtained
without restriction from an independent source having a bona fide right to use and disclose such information, without restriction
as to further use or disclosure; (iv) that Marker approves in advance in writing for unrestricted release; or (v) that is required
to be disclosed by law, provided that written notice of the intent to disclose based on such reason is provided to Marker by Consultant
seven (7) days prior to the scheduled date of disclosure.



 


		8.1.3	The term “Proprietary Rights and Inventions” shall mean any and all rights and materials,
including, but not limited to, patentable or non-patentable inventions, discoveries, concepts, ideas, techniques, methods (excluding
published or standard methods dedicated to the public), apparatus, formulas, trademark and service mark rights, patent rights,
trade secret rights and all other proprietary rights, as well as improvements thereof, generated by, made or conceived by, or arising
out of the efforts of Consultant, either solely or jointly with others, whether patentable or not and whether or not reduced to
practice, while: (i) acting in furtherance of this Agreement, which includes performing the Services; or (ii) utilizing Marker’s
facilities, personnel or materials. Proprietary Rights and Inventions shall be deemed Confidential Information. The Consultant
has informed Marker, in writing, of any and all inventions which he claims as her own or otherwise intends to exclude from this
Agreement because it was developed by her prior to the Effective Date. The Consultant acknowledges that after execution of this
Agreement he shall have no right to exclude any Proprietary Rights and Inventions from this Agreement. Consultant shall make and
maintain adequate and current written records of all Proprietary Rights and Inventions, and shall disclose all Proprietary Rights
and Inventions promptly, fully and in writing to the Company immediately upon development of the same and at any time upon request.



 






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		8.2	Nondisclosure. Consultant acknowledges that Marker’s Confidential Information is valuable,
special and a unique asset of Marker, and that Consultant may, whether or not intentionally, gain access to and knowledge of the
Confidential Information during Consultant’s performance under this Agreement. In light of the highly competitive nature
of the industry in which Marker’s business is conducted, Consultant shall not reveal to any person or entity any Confidential
Information, except as authorized by Marker in writing, and shall keep secret all matters entrusted to Consultant and shall not
use or attempt to use any Confidential Information, except as may be required in the course of performing the Services under this
Agreement, nor shall Consultant directly or indirectly use any Confidential Information in any manner that may injure or cause
loss or may be calculated to injure or cause loss to Marker. The obligations of confidentiality and nonuse shall survive for ten
(10) years from the expiration or termination of this Agreement, whichever occurs first. Furthermore, Consultant shall not make,
use or permit to be used any Company Documentation otherwise than for the benefit of Marker, whether during the Term or after the
termination or conclusion of this Agreement. All Company Documentation shall be and remain the sole and exclusive property of Marker.
Immediately upon the termination or conclusion of this Agreement, Consultant shall immediately deliver all Company Documentation
in her possession, and all copies thereof, to Marker.



 


		8.3	Conveyance. Consultant hereby conveys, assigns, transfers and delivers to Marker, and agrees
to convey, assign, transfer and deliver to Marker, all Proprietary Rights and Inventions, as well as Consultant’s right,
title and interest in and to any Proprietary Rights and Inventions, if any. Consultant shall not, at any time or in any manner,
challenge Marker’s ownership of such Proprietary Rights and Inventions. Consultant shall assist Marker or its representatives,
at the expense of Marker, to obtain, maintain and enforce any United States and foreign letters patent for any Proprietary Rights
and Inventions, that Marker may elect and shall execute, acknowledge and confirm in writing the complete ownership by Marker of
the Proprietary Rights and Inventions, as requested by Marker from time to time. Consultant also agrees to execute an unconditional
assignment to Marker of Consultant’s right, title and interest in the Proprietary Rights and Inventions. In the event that
the above provisions requiring Consultant’s execution of an assignment to Marker is found invalid or void, Consultant agrees
that Marker shall have a non-exclusive, royalty-free, perpetual license to make, use, sell or exploit such Proprietary Rights and
Inventions. The Parties acknowledge the work Consultant performs for Baylor is subject to obligations Consultant has to Baylor,
including as to work done at Baylor that would be part of the License Agreement.



 






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		8.4	Remedies. Consultant acknowledges and agrees that Marker’s remedy at law for a breach
or threatened breach of any of the provisions of Section 7 would be inadequate and the breach shall be per se deemed as causing
irreparable harm to Marker. Therefore, in the event of a breach by Consultant of any of the provisions of Section 7, Consultant
agrees that, in addition to any remedy at law available to Marker, including, but not limited to, monetary damages, Marker, without
posting any bond, shall be entitled to obtain, and Consultant agrees not to oppose Marker’s request for equitable relief
in the form of specific performance, temporary restraining order, temporary or permanent injunction, or any other equitable remedy
which may then be available to Marker. Nothing in this Agreement shall be construed as prohibiting Marker from pursuing any other
remedies available to it for such breach or threatened breach.



 


		8.5	Consultants’ Third-Party Confidential Information. During the Term of this Agreement,
Consultant will not improperly disclose to Marker or use in the conduct of the Services any proprietary or confidential information
or trade secrets of any former employer or other third party to which Consultant owes a duty of confidentiality with respect to
same, and that Consultant will not bring onto the premises of Marker any proprietary information belonging to a third party unless
consented to in writing by such third party.



 


		8.6	Return of property. The Consultant agrees that all originals and all copies of materials
containing, representing, evidencing, recording, or constituting any Confidential Information, however and whenever produced (whether
by the Consultant or others), shall be the sole property of the Company.



 


At any time upon request of the
Company, the Consultant shall return promptly any and all Confidential Information, including customer or prospective customer
lists, other customer or prospective customer information or related materials, computer programs, software, electronic data, specifications,
drawings, blueprints, medical devices, samples, reproductions, sketches, notes, notebooks, memoranda, reports, records, proposals,
business plans, or copies of them, other documents or materials, tools, equipment, or other property belonging to the Company or
its customers which the Consultant may then possess or have under her control.


 


The Consultant further agrees that
upon termination of her engagement she shall not take with her any documents or data in any form or of any description containing
or pertaining to Confidential Information or any Inventions.


 


	9.	Binding. This Agreement shall be binding upon the Parties and their respective successors
and permitted assigns.



 






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	10.	Modification and Severability. This Agreement may not be modified orally. Modification to
this Agreement may be made from time to time, provided that such modification is in writing, attached as an addendum to this Agreement
and signed by both Parties. In the event any provision of this Agreement or any part thereof is held invalid or unenforceable,
the validity and enforceability of the remaining portions of the Agreement shall not be affected.



 


	11.	Notice. Any notice, demand, payment, or communication required, permitted, or desired to
be given in relation to this Agreement shall be deemed effectively given when personally delivered; when received by overnight
courier; or five (5) days after being deposited in the United States mail, and sent first class with postage prepaid thereon, certified
and return receipt requested, addressed as follows:



 





	 	Consultant:	Ann Leen
	 	 	2727 Drexel Drive
	 	 	Houston, Texas 77027
	 	 	 
	 	Marker:	Marker Therapeutics, Inc.
	 	 	Attention: Chief Executive Officer
	 	 	3200 Southwest Freeway, Suite 2240
	 	 	Houston, Texas 77027
	 	 	 
	 	With a copy to:	Shumaker, Loop & Kendrick, LLP
	 	 	Attention:  Mark A. Catchur
	 	 	101 E. Kennedy Boulevard
	 	 	Suite 2800
	 	 	Tampa, Florida 33602







 


	12.	Survival. The provisions of Sections 6, 7, 8, and 14 shall survive termination or expiration
of this Agreement.



 


	13.	Force Majeure. In the event Consultant shall be delayed or hindered in or prevented from
the performance of any act required hereunder by reasons of strike, lockouts, labor troubles, inability to procure materials, failure
of power or restrictive government or judicial orders or decrees, riots, insurrection, war, Acts of God, or any other reason or
cause beyond Consultant's reasonable control, then performance of such act shall be excused for the reasonable period of such delay.



 


	14.	Governing Law. This Agreement has been entered into in the State of Texas and shall be governed
by, construed and interpreted in accordance with the laws of the State of Texas without reference to conflict of laws principles
or statutory rules of arbitration included therein. Any dispute and proceeding under this Agreement shall be subject to the exclusive
jurisdiction and venue of the state and federal courts located in Harris County, Texas, and the Parties hereby consent to the exclusive
personal jurisdiction and venue of these courts.



 


	15.	Non-Waiver. The failure of either Party to insist upon the strict performance of any term
of this Agreement shall not constitute a waiver of such term or a waiver of the right to assert a breach thereof. No waiver of
any breach shall alter or affect this Agreement, which shall continue in full force and effect until its expiration or termination.



 






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	16.	Enforcement. The prevailing Party shall be entitled to collect from the other Party all
reasonable fees, costs and expenses including attorneys’ fees and costs incurred by the prevailing Party in connection with:
(i) the enforcement of any available remedy for breach of this Agreement; or (ii) any dispute arising from or related to this Agreement
or the relationship between the Parties.



 


	17.	Entire Agreement. This Agreement constitutes the entire understanding between the Parties
and contains all the understandings between the Parties with respect to the subject matter hereof; this Agreement supersedes any
and all other understandings, either oral or written, between the Parties with respect to the subject matter hereto.



 


	18.	Assignment. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder, except as otherwise expressly herein and shall not be assignable by operation
of law or otherwise.



 


	19.	Protected Health Information. In the event that the Consultant requests or needs protected
health information as defined under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") in order
to perform the Services, then if permitted by law, Marker shall transfer the protected health information under a separate agreement
(e.g. Business Associate Agreement).



 


	20.	Marker Premises. Consultant will abide by all laws, rules and regulations that apply to
the performance of the Services and, when on Marker’s premises, will comply with Marker’s policies, procedures and
standards with respect to conduct of visitors as made known to Consultant.



 


 


[Signature page to follow]


 






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IN WITNESS WHEREOF, the Parties
have executed this Agreement on the Effective Date.


 





Marker Therapeutics, Inc.


  


	By:	/s/Peter Hoang	 
	 	Peter Hoang	 
	 	Chief Executive Officer	 


  


 


	/s/Ann Leen	 
	Ann Leen	 







 




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SCHEDULE 1


 


CONSULTING SERVICES


 


 


(a)              
Scope. Company hereby retains Consultant, and Consultant hereby agrees to be retained by Company as its Chief
Scientific Officer.


 


(b)              
Duties. During the term of this Agreement, Consultant shall be reasonably available to Marker via e-mail,
telephone or in person to Marker for consulting services as its Chief Scientific Officer and perform the duties typically assigned
to the chief scientific officer of a similarly situated company in the Company’s industry. The Consultant shall also perform
such other reasonable duties as may hereafter be requested of her by the Chief Executive Officer, consistent with the services
and providing such further services to the Company as may reasonably be requested of her. Such consulting services as requested
from time to time by Marker may include, but not be limited to, subject matter related to Marker’s technologies under development,
ongoing clinical studies, scientific research and other activities that are within the scope of duties of a Chief Scientific Officer.
The Consultant will report to the Chief Executive Officer of the Company, and carry out the decisions and otherwise abide by and
enforce the rules and policies of the Company.


 


(c)              
Performance and Time Commitment. The Consultant agrees to be available to render the Consulting Services
as requested.


 


(d)              
Professional Standards. The Consultant agrees to devote her best efforts to performing the Consulting Services.
The Consultant shall comply with all rules, procedures and standards promulgated from time to time by the Company with regard
to the Consultant's access to and use of the Company's property, information, equipment and facilities.


  




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SCHEDULE
2


 


 COMPENSATION




 


The Compensation payable to Consultant
shall consist of the following:


 


		1.	Annual Cash Consulting Fee. Marker will pay Consultant a base consulting fee of $350,000.00
in cash per year (“Base Consulting Fee”). The Consultant’s base consulting fee shall be paid in approximately
equal bi-weekly installments in accordance with the Company’s customary payroll practices.



 


		2.	Discretionary Cash Payment. For each calendar year during the term of this Agreement, Consultant
shall be eligible to receive a discretionary cash payment of a maximum of 35% of Consultant’s Base Consulting Fee based on
Consultant’s services and commitment to Marker, prorated for partial years, to be paid within a reasonable time after the
end of the applicable fiscal year of the Company, but in no event later than five days after the completion of the audit for the
prior year it being understood that the Board of Directors of Marker may in its discretion pay such bonus earlier.



 






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