SCIENTIFIC ADVISORY AND CONSULTING AGREEMENT
Exhibit 10.21
This
Scientific Advisory and Consulting Agreement (this "Agreement'') dated July,
2nd, 2008 (the "Effective Date"), between Epitope Pharmaceuticals, Inc., a
corporation (the "Company'" or "EPI') and Archimedes Consulting, inc, a
California corporation wholly owned by Xxxxxxxxx Xxxxxx, MD. Ph.D. ("Inventor'')
having place of business at 000 0xx Xxxxxx in Encinitas, California,
92024.''Consultant'',
WHEREAS,
the Company desires to engage Consultant to provide consulting services to it in
connection with its business; and
WHEREAS,
Consultant desires to provide consulting services to the Company in connection
with its business; and
WHEREAS,
Consultant has valuable expertise related to the management, development and
implementation of epitope specific immunotherapies to treat autoimmune diseases;
and
NOW
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION
1. Term of
Agreement.
Commencing on the Effective Date,
Consultant shall be retained by the Company for a two year period, which shall
be renewable upon mutual agreement of the parties for additional one year
periods. Consultant shall serve as Chair of the Scientific Advisory Board of
EPI. The initial period and any extensions or renewals thereof shall constitute
the "Consulting Term." This Agreement is contingent on the signing of an
exclusive worldwide license agreement ("License Agreement") between Epitope
Pharmaceuticals, Inc. and the Regents of the University of California
("University") relating to immunotherapeutic molecules, specifically named
dnaJPl and analogs thereof for the treatment of autoimmune diseases (the
"Field").
SECTION
2. Position and
Responsibilities.
.
Consultant shall serve as a consultant
to the Company and render such advice and services to the Company as may be
reasonably requested by the Company including, without limitation, advising the
Company with respect to the direction of the Company's research and product
development activities. Subject to the terms, limitations and conditions set
forth herein, Consultant agrees to undertake on a best-efforts basis such
consultative and advisory services as the Company shall reasonably request in
connection with the Company's business.
SECTION
3. Limitations.
(a) Consultant acknowledges that at the
time of this Agreement he is under no other obligation to any third party that
would interfere with his rendering consulting services to the Company. Company
acknowledges that services are not provided by Consultant on an exclusive
basis.
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(b) The Company acknowledges that
the Consultant is not a "Contract Research Organization" or "Sponsor" as defined
in Title 21 of the U.S. Code of Federal Regulations, and the Company shall
retain full responsibility for the content of certain documents and regulatory
submissions, for interpretation of the data contained therein and for the
timing, preparation and processing of regulatory submissions. Company
acknowledges that Inventor is the sponsor of IND # BB-IND 6921
(c) The Company acknowledges that the
Consultant shall at all times during the term of this Agreement act as an
independent contractor and not as an employee or agent of the Company, and shall
not assume or incur any benefits, rights or obligations related to said employee
or agent status. Neither party hereto shall be authorized to act as the agent
for the other, nor shall either be bound by the acts of the other, except as
otherwise specifically provided in this Agreement.
(d) The Company acknowledges that the
Consultant's primary employment responsibility is to the University of Arizona,
and that Consultant is bound by University employment and business conduct and
policies: including those related to consulting and extramural activities, and
that Consultant's obligations under University's policies takes priority over
any obligations that Consultant may incur to the Company pursuant to this
Agreement. Furthermore, University, as employer of Consultant, places certain
limitations upon the total amount of time that may be spent on Consultant's
activities that are not related to his employment by University, and the Company
agrees that those limitations, which are subject to change at the sole
discretion of University, shall not be exceeded by the Company's requests for
Consultant's services. The Company further acknowledges that all such consulting
services must take place at such times when the Consultant is not otherwise
engaged in activities related to his employment with University. This agreement
is subject to the rules governed by the University. Company will cooperate with
Consultant to amend this agreement in order to fulfill such rules, including the
definition of the final beneficiary of the equity vesting schedule, which may
require transfer of equity to a trust for the beneficiary of the
Consultant.
(e) The parties hereto agree that the
Consultant's services to the Company shall not include proprietary information
of University, nor make use of University's time or resources, without prior
written agreement of University. Additionally, the parties agree that the
Consultant's services shall not restrict or hinder his ability to conduct
current or foreseeable research independently or on behalf of the University of
Arizona, nor, unless otherwise agreed, limit Consultant's ability to publish
work generated independently from this Agreement.
(f) Nothing contained in this Agreement
shall be construed as granting any right to the Company to use in advertising,
publicity, or other promotional activities the name of the Consultant, without
the prior written consent of the Consultant, provided, however, that the Company
may use the names of the Consultant, where the use of such names may be required
by law, without such prior written consent.
SECTION
4. Compensation.
(a) As compensation for the performance
of his duties on behalf of the Company, Consultant shall be compensated during
the consulting Term at an annual rate of forty thousand dollars ($40,000),
payable monthly in advance.
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(b) Equity Vesting
Schedule:
Upon the
successful completion of the following events, the Consultant shall be issued a
number of shares of common stock equal to the following
percentages:
| (a) | Upon the execution of this Agreement, EPI shall issue a number of shares of common stock to the Consultant equal to twelve point five percent (12.5%) of EPI on a fully diluted basis at the time of execution of the Agreement. | |
| (b) | Upon the initiation of a phase IIb clinical trial for any molecule for which EPI has licensed patent rights from the University, EPI shall issue a number of shares of common stock to the Consultant equal to 2% of EPI at the time of the execution of the Agreement. | |
| (c) | Upon the initiation of a phase III clinical trial for any molecule for which EPI has licensed patent rights from the University, EPI shall issue a number of shares of common stock to the Consultant equal to 3% of EPI at the time of the execution of the Agreement. | |
| (d) | Upon the acceptance of an New Drug Applications filing or equivalent by the U.S. Food and Drug Administration for any molecule for which EPI has licensed patent rights from the University, EPI shall issue a number of shares of common stock to the Consultant equal to 2% of EPI at the time of the execution of the Agreement. | |
| (e) | The provisions will remain valid in the case of sale, liquidation, merger, acquisition, IPS, change of control |
(c) Stock Option
Agreement
As part of Consultant's ongoing
advisory services, the Consultant will also receive an option to purchase a
number of shares of common stock equal to five percent of EPI. This option will
be exercisable for a period of ten years at an exercise price corresponding to
the fair market value per share at the time of granting such option (i.e. date
of execution of this agreement). These options will begin to vest upon
finalization of the licensing agreement between the Company and University and
continue to vest on an annual basis over a five year period, unless this
Agreement is terminated earlier or until liquidity or exit are achieved,
whichever comes first, in which case Consultant will be vested in
full
(d) Consultant will file his own tax
returns on the basis of his status as an independent contractor for the
reporting of all income, social security, employment and other taxes due and
owing on the consideration received by him under this Agreement. Consultant
shall be solely responsible for, and shall pay, such taxes in accordance with
applicable law. Similarly, Consultant shall not be entitled to benefits
specifically associated with employment status~ such as medical~ dental and life
insurance, stock or stock options of the Company and shall not be entitled to
participate in any other Company benefit programs. As an independent con1ractor,
Consultant acknowledges, understands and agrees that he is not, and shall not
represent himself to third parties as being, the agent or representative of the
Company nor does he have, and shall not represent himself to third parties as
having, actual or apparent power or authority to do or take
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any
action for or on behalf of the Company, as its agent, representative or
otherwise, except as specifically set forth herein.
(e) Commensurate with the execution of
this Agreement, the Consultant agrees to allow Company to cross reference IND
number BB-6921 held by the Inventor for the purpose to enable development, and
to grant to the Company access to any and all amendments and all non¬clinical
and clinical data generated to date under this IND regarding the Field. Inventor
will collaborate with EPI and facilitate to the best of his resources execution
of the EPI clinical development program and related contacts with FDA. Such
access will be exclusive with regards to the commercial development of the
Field.
SECTION
5. Expenses.
The Company shall reimburse Consultant
for all normal, usual and necessary expenses incurred by Consultant in
furtherance of the business and affairs of the Company against receipt by the
Company of appropriate vouchers or other proof of the Company's expenditures and
otherwise in accordance with such expense-reimbursement policy as may from time
to time be adopted by the Company.
SECTION
6. Confidential
Information.
(a) Consultant agrees that during the
course of his Consulting Term or at for a period of 5 (five) years after
termination, he will keep in strictest confidence and will not disclose or make
accessible to any other person without the written consent of the Company, the
Company's products: services and technology, both current and under development,
promotion and marketing programs, lists, trade secrets and other confidential
and proprietary business information of the Company or any of its clients and
third parties including, without limitation, Proprietary Information (as defined
in Section 7) (all the foregoing is referred to herein as the "Confidential
Information"). Consultant agrees: (i) not to use any such Confidential
Information for himself or others, unless such information was developed by
consultant under the boundaries of this agreement and consultant desires to use
it for non-commercial purposes such as publication and Company agrees to such
uses; and (ii) not to take any such material or reproductions thereof from the
Company's facilities at any time during his Consulting Term except, in each
case, as required in connection with Consultant's duties to the
Company.
Notwithstanding the foregoing, the
parties agree that Consultant is free to use (i) Information and knowledge owned
by Consultant outside of the Field; ii) Knowledge of the Field developed
independently at any time by Consultant outside of the work specifically
assigned to Consultant; iii) information in the public domain not as a result of
a breach of this Agreement, (iv) information lawfully received from a third
party who had the right to disclose such information and (v) Consultant's own
independent skill, knowledge, know-how and experience to whatever extent and in
whatever way he wishes, in each case consistent with his obligations as
Consultant and that, at all times, Consultant is free to conduct any
research
(b) Except with prior written
authorization by the Company, Consultant agrees not to disclose or publish any
of the Confidential Information or any confidential, technical or business
information of any other party to whom the Company owes an obligation of
confidence, at any time during or after his engagement by the
Company.
(c) Upon written notice by the Company,
Consultant shall promptly redeliver to the Company, or, if requested by the
Company, promptly destroy all written Confidential Information
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and any
other written material containing any information included in the Confidential
Information (whether prepared by the Company, Consultant, or a third party), and
will not retain any copies, extracts or other reproductions in whole or in part
of such written Confidential Information (and upon request certify such
redelivery or destruction to the Company in a written instrument reasonably
acceptable to the Company and its counsel).
(d). In the event that Consultant is
requested or required (by oral questions, deposition, interrogatories, requests
for information or documents, subpoena, civil investigative demand or other
process) to disclose all or any part of any Confidential Information, Consultant
will proved the Company with prompt notice of such request or requirement: as
well as notice of the terms and circumstances surrounding such request or
requirement, so that the Company may seek an appropriate protective order or
waive compliance with the provisions of this Agreement. In such case, the
parties will consult with each other on the advisability of pursuing any such
order or other legal action or available steps to resist or narrow such request
or requirement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, Consultant is, in the opinion of counsel reasonably acceptable
to the Company: legally compelled to disclose Confidential Information,
Consultant may disclose that portion of such information which counsel advises
Consultant that it is legally compelled to disclose. In any event, Consultant
will use its best efforts to obtain and will not oppose action by the Company to
obtain, an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the disclosure of such
information
.
SECTION
7. Ownership Of Proprietary
Information.
(a)Consultant agrees that all
information that has been created, discovered or developed by the Company, its
subsidiaries: affiliates, licensors, licensees, successors or assigns
(collectively, the "Affiliates"), during the Consulting Term and information
relating to the Company's customers, suppliers: consultants, and licensees,
and/or in which property rights have been assigned or otherwise conveyed to the
Company or the Affiliates, shall be the sole property of the Company or the
Affiliates, as applicable, and the Company or the Affiliates, as the case may
be, shall be the sole owner of all patents, copyrights and other rights in
connection therewith, including without limitation the right to make application
for statutory protection. All the aforementioned information is hereinafter
called "Proprietary Information."
(b) Notwithstanding any other provision
to the contrary, the Company will have no rights, solely by reason of this
Agreement, in any document, material, invention, information, improvement or
other intellectual property whatsoever, whether or not publishable, patentable
or copyrightable that is or was generated as a result of the Consultant's
activities independently from this Agreement.
SECTION
8. Termination.
The Consultant and the Company shall
have the absolute right to terminate this Agreement at any time upon thirty (30)
days' prior written notice to either party. This Agreement shall automatically
terminate upon the termination of the License Agreement entered into by and
between the Company and University. Upon termination, the equity vesting
schedule shall terminate and the Consultant shall be permitted to keep all
vested equity instruments.
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SECTION
9. Notices.
Any notice or other communication under
this Agreement shall be in writing and shall be deemed to have been given: when
delivered personally against receipt therefor; one day after being sent by
Federal Express or similar overnight delivery; or three days after being mailed
registered or certified mail, postage prepaid, to a party hereto at the address
set forth below, or to such other address as such party shall give by notice
hereunder to the other party to this Agreement.
If to
Company:
Epitope
Pharmaceuticals, Inc.
0000
Xxxxx Xxxxxxxx Xxxx.
Xxxxx
0000
Xxxxx, XX
00000
Attn:
Xxxxxxxx Xxxxxxx, Vice Chairman
If to
Consultant:
Archimedes
Consulting, Inc,
Xxxxxxxxx
Xxxxxx, M.D., Ph.D, President
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first written
above,
CONSULTANT:
By: /s/ Xxxxxxxxx
Xxxxxx
Name:
Xxxxxxxxx Xxxxxx, M.D., Ph.D,
President,
Archimedes Consulting Inc
EPTITOPE
PHARMACEUTICALS, INC
By: /s/ Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx Xxxxxxx
Title: Vice
Chairman
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