SCIENTIFIC ADVISORY AGREEMENT
EXHIBIT
10.3
THIS
SCIENTIFIC ADVISORY AGREEMENT (this "Agreement"), effective as of the ____
of
December, 2003, is by and between XXXX XXXXXXXXXX, M.D., having an address
at
_______________________________ (hereinafter referred to as "ADVISOR") and
Cougar Biotechnology, Inc., a Delaware limited liability corporation having
offices at 00000 Xxxxxxxx Xxxx. Xxxxx 000, Xxx Xxxxxxx, XX 00000
("COUGAR").
W I T N E S S E T
H:
WHEREAS,
ADVISOR
is an expert in scientific matters relating to
_____________________________;
WHEREAS, COUGAR
desires that ADVISOR serve as chairman of its Scientific Advisory Board (the
“SAB”) and a member of its Board of Directors (the “Board”) and that it be able
to call upon the knowledge and experience of ADVISOR for consultation services
and advice;
WHEREAS,
ADVISOR
is willing to sever as chairman of the SAB and a member of its Board and render
such services to COUGAR on the terms and conditions hereinafter set forth in
this Agreement;
NOW,
THEREFOR,
in
consideration of the mutual covenants and agreements hereinafter set forth,
the
parties hereby agree as follows:
Section
1. Term
of Agreement. This
Agreement shall be in effect for a period of four (4) years from the date
hereof. The term of this Agreement shall automatically be extended for
consecutive periods of one year each, unless either party shall give written
notice of non-renewal to the other, at least thirty (30) days prior to the
expiration of the initial, or then current renewal, term. During the term of
this Agreement (including any renewal pursuant to the immediately preceding
sentence), this Agreement may be terminated by ADVISOR or COUGAR upon thirty
(30) days prior written notice; provided,
however,
that
upon termination by COUGAR, (a) COUGAR shall pay ADVISOR in lump sum the
remaining amount owing to ADVISOR for the remainder of the year and (b) any
Options (defined below) that will vest in the year of termination will vest
immediately and the remaining unvested options will expire and become void.
Cougar shall have no obligation to pay the lump sum and vest the options
described in 1(a) and 1(b) respectively, if it terminates this Agreement for
reasons of gross negligence, willful misconduct or fraud on the part of the
ADVISOR. Upon termination of this Agreement, the ADVISOR will be deemed to
have
resigned from both the SAB and the Board.
Section
2. Services.
ADVISOR
agrees to serve under the term of this Agreement as a member of COUGAR’s SAB and
Board and to provide advice to COUGAR in the area of ADVISOR’s expertise.
Additionally, ADVISOR agrees to identify, analyze, structure and secure new
business opportunities that meet the Company’s business objectives including,
but not limited to, opportunities within the intellectual property and drug
development fields. Promptly following execution of this Agreement, the Board
will appoint ADVISOR to both the SAB (as its chairman) and to the Board (as
its
Vice-Chairman).
Section
3. Advisory
Function.
ADVISOR
agrees to be available during the term of this Agreement upon reasonable request
by COUGAR to consult with COUGAR and to assist COUGAR in the assessment of
research, development and commercial programs of biotechnology or pharmaceutical
companies that COUGAR may consider developing or acquiring from time to time,
to
offer advice and guidance with respect to the research and commercial
development plans of potential competitors of such companies; provided, however,
that ADVISOR shall not be obligated to commit more than one (1) day per week
to
COUGAR. ADVISOR also agrees to be available, upon reasonable notice, to attend
all meetings of the SAB and the Board.
Section
4. Compensation. In
consideration for ADVISOR’S services, COUGAR shall:
(a) Pay
to
ADVISOR One Hundred and Fifty Thousand Dollars ($150,000) per year payable
in
accordance with its normal payroll period and practices;
(b) Make
the
following milestone payments to ADVISOR:
(1) Fifty
Thousand Dollars ($50,000) upon consummation of a license agreement or similar
agreement relating to the acquisition by COUGAR of each new Technology (as
defined below) that is undergoing or has completed Phase I clinical testing
at
the time of the introduction;
(2) One
Hundred Thousand Dollars ($100,000) upon consummation of a license agreement
or
similar agreement relating to the acquisition by COUGAR of a Technology that
is
undergoing or has completed Phase II clinical testing at the time of the
introduction; and
(3) One
Hundred Fifty Thousand Dollars ($150,000) upon consummation of a license
agreement or similar agreement relating to the acquisition by COUGAR of a
Technology that is undergoing or has completed Phase III clinical testing at
the
time of the introduction.
For
purposes of this Section 4(b), a “Technology” shall mean any technology first
introduced to COUGAR by ADVISOR, or for which ADVISOR actively participates
in
the evaluation process, that is subsequently in-licensed or otherwise acquired
by COUGAR. The degree of the ADVISOR’s participation in the evaluation process
will be determined by the Chief Executive Officer of COUGAR and, accordingly,
determine whether ADVISOR is entitled to receive all or a part of the fees
described in this Section 4(b).
(c) pay
to
ADVISOR a cash bonus in the amount of One Hundred Thousand Dollars ($100,000)
for his assistance in preparation for and participation in meetings with
potential investors in COUGAR relating to an offering of securities (an
“Offering”), provided however, such Offering raises a minimum of $5,000,000 of
proceeds for the Company. The Company will not have an obligation to pay the
fee
described in this Section 4(c) more than one time per year.
(d) grant
ADVISOR options (the “Options”) to purchase Four Hundred Thousand (400,000)
shares of COUGAR common stock, par value $0.001 per share (the “Common Stock”)
at an exercise price equal to $0.15 per share, which Options shall vest, if
at
all, in four equal amounts on each anniversary of this Agreement and shall
otherwise be subject to the Employee Stock Option Plan of COUGAR. Except as
provided in Section 1 hereof and the following sentence, the Options shall
vest
only if ADVISOR is a member of both the Board of Directors and the SAB.
Notwithstanding the foregoing provisions of this Section 4(d), any portion
of
the Options remaining unvested shall vest upon a Change of Control. “Change of
Control” means (i) the acquisition, directly or indirectly, following the date
hereof by any person (as such term is defined in Section 13(d) and 14(d)(2)
of
the Securities Exchange Act of 1934, as amended), in one transaction or a series
of related transactions, of securities of the Company representing in excess
of
fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own
in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of
its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
Section
5. Expenses.
COUGAR
will promptly reimburse ADVISOR for all reasonable and necessary expenses
incurred by him in connection with his consulting hereunder, provided such
expenses are approved by COUGAR in advance of expenditure.
Section 6. Confidential
Information and Inventions
(a) ADVISOR
recognizes and acknowledges that in the course of his duties pursuant to this
Agreement, he is likely to receive confidential or proprietary information
owned
by COUGAR, its affiliates or third parties with whom COUGAR or any such
affiliates has an obligation of confidentiality. Accordingly, during and after
the term of this Agreement and for a period of five (5) years thereafter,
ADVISOR agrees to keep confidential and not disclose or make accessible to
any
other person or use for any other purpose other than in connection with the
fulfillment of his duties under this Agreement, any Confidential and Proprietary
Information (as defined below) owned by, or received by or on behalf of, COUGAR
or any of its affiliates. “Confidential and Proprietary Information” shall
include, but shall not be limited to, confidential or proprietary scientific
or
technical information, data, formulas and related concepts, business plans
(both
current and under development), client lists, promotion and marketing programs,
trade secrets, or any other confidential or proprietary business information
relating to development programs, costs, revenues, marketing, investments,
sales
activities, promotions, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of COUGAR or of any
affiliate or client of COUGAR. ADVISOR expressly acknowledges the trade secret
status of the Confidential and Proprietary Information and that the Confidential
and Proprietary Information constitutes a protectable business interest of
COUGAR. ADVISOR agrees: (i) not to use any such Confidential and Proprietary
Information for himself or others; and (ii) not to take any material or
reproductions (including but not limited to writings, correspondence, notes,
drafts, records, invoices, technical and business policies, computer programs
or
disks) thereof from COUGAR’s offices at any time during the term by COUGAR,
except as required in the execution of ADVISOR’s duties to COUGAR. ADVISOR
agrees to return immediately all Company material and reproductions (including
but not limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to COUGAR upon request and in any event immediately upon termination
of the Agreement.
(b) Except
with prior written authorization by COUGAR, ADVISOR agrees not to disclose
or
publish any of the Confidential and Proprietary Information, or any
confidential, scientific, technical or business information of any other party
to whom COUGAR or any of its affiliates owes an obligation of confidence, at
any
time during the term and for a period of five (5) years thereafter.
(c) ADVISOR
agrees that all inventions, discoveries, improvements and patentable or
copyrightable works (“Inventions”) initiated, conceived or made by him, either
alone or in conjunction with others, made while ADVISOR was working in his
capacity as a consultant, member of the SAB or Board as described herein, shall
be the sole property of COUGAR to the maximum extent permitted by applicable
law
and, to the extent permitted by law, shall be “works made for hire” as that term
is defined in the United States Copyright Act (17 U.S.C.A., Section 101). The
Company shall be the sole owner of all patents, copyrights, trade secret rights,
and other intellectual property or other rights in connection therewith. ADVISOR
hereby assigns to COUGAR all right, title and interest he may have or acquire
in
all such Inventions. ADVISOR further agrees to assist COUGAR in every proper
way
(but at COUGAR’s expense) to obtain and from time to time enforce patents,
copyrights or other rights on such Inventions in any and all countries, and
to
that end ADVISOR will execute all documents necessary:
(i) to
apply
for, obtain and vest in the name of COUGAR alone (unless COUGAR otherwise
directs) letters patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and restore the
same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) The
provisions of this Section 6 shall survive any termination of this
Agreement.
(e) All
of
the foregoing obligations and restrictions do not apply to that part of the
Confidential and Proprietary Information that ADVISOR can demonstrate, through
the production of documented evidence: (i) was or becomes generally available
to
the public other than as a result of a disclosure by the ADVISOR or his
representatives; or (ii) was known to ADVISOR prior to the disclosure by COUGAR,
provided that such information is not known by ADVISOR to be subject to another
confidentiality agreement with, or other obligation of secrecy to, COUGAR;
or
(iii) was available, or becomes available, to ADVISOR on a non-confidential
basis from a third party who is not under a contractual, legal, fiduciary or
other confidentiality obligation to COUGAR; (iv) was independently developed
by
ADVISOR by persons not having access to the Confidential and Proprietary
Information;(v) is required to be disclosed pursuant to the requirement of
a
governmental agency or of law (provided ADVISOR gives COUGAR prompt notice
of
such disclosure order or requirement); or (v) has been approved for release
in
writing by COUGAR.
Section
7. Xxxxxxx
Xxxxxxx.
ADVISOR
recognizes that in the course of his duties hereunder, ADVISOR may receive
from
COUGAR or others information that may be considered "material, nonpublic
information" concerning a public company that is subject to the reporting
requirements of the Securities and Exchange Act of 1934, as amended. ADVISOR
agrees NOT
to:
(a) Buy
or
sell any security, option, bond or warrant while in possession of relevant
material, nonpublic information received from COUGAR or others in connection
herewith;
(b) Provide
COUGAR with information with respect to any public company that may be
considered material, nonpublic information; or
(c) Provide
any person with material, nonpublic information, received from COUGAR, including
any relative, associate, or other individual who intends to, or may, (i) trade
securities with respect to the company which is the subject of such information,
or (ii) otherwise directly or indirectly benefit from such
information.
Section
8. Representations
of Advisor.
ADVISOR
hereby represents that his current principal place of employment has received
disclosure as to the ADVISOR's acting as a Scientific Advisor to COUGAR and
of
the duties required of the ADVISOR under this Agreement, and that such employer
consents fully to ADVISOR's execution of this Agreement and position of
Scientific Advisor for COUGAR. ADVISOR further represents that there are no
binding agreements to which he is a party or by which he is bound, forbidding
or
restricting his activities herein. In addition, the ADVISOR consents to the
use
of his name in various reports, brochures or other documents produced by or
on
behalf of or COUGAR. The ADVISOR understands and acknowledges that he has
certain fiduciary and other obligations and responsibilities to COUGAR and
its
shareholders by virtue of his appointment to the BOARD and hereby agrees to
use
his best efforts to satisfy such obligations and responsibilities.
Section
9. Survival. The
provisions of this Agreement relating to confidentiality and xxxxxxx xxxxxxx
shall survive any termination or expiration hereof for three years.
Section
10. Advisor
not an Employee.
COUGAR
and the ADVISOR hereby acknowledge and agree that ADVISOR shall perform the
services hereunder as an independent contractor and not as an employee of
COUGAR.
Section
11. Indemnification.
COUGAR
shall
defend and indemnify ADVISOR in his capacity as a advisor to COUGAR
against
any and all claims, judgments, damages, liabilities, costs and expenses
(including reasonable attorney’s fees) arising out of, based upon or related to
the ADVISOR’s performance of services hereunder, except to the extent that such
claims arise out of (a) willful misfeasance, (b) bad faith, (c) gross negligence
or (d) reckless disregard of the duties involved in the conduct of ADVISOR’s
position.
Section
12. Miscellaneous.
(a) Severability
Of Provisions.
If any
provision of this Agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole
or
in part, the remaining conditions and provisions or portions thereof shall
nevertheless remain in full force and effect and enforceable to the extent
they
are valid, legal and enforceable, and no provision shall be deemed dependent
upon any other covenant or provision unless so expressed herein.
(b) Entire
Agreement; Modification.
This
Agreement is the entire agreement of the parties relating to the subject matter
hereof and thereof, and the parties hereto and thereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein or therein. No amendment or modification of
this
Agreement shall be valid unless made in writing and signed by each of the
parties hereto.
(c) Binding
Effect.
The
rights, benefits, duties and obligations under this Agreement shall inure to,
and be binding upon, COUGAR, its successors and assigns, and upon Advisor and
his legal representatives. This Agreement constitutes a personal service
agreement, and the performance of Advisor's obligations hereunder may not be
transferred or assigned by Advisor and any such purported transfer or assignment
shall null and void ab initio.
(d) Third
Party Beneficiaries.
This
Agreement is for the benefit of the parties hereto and their permitted
successors and assigns, and is not intended to confer upon any other person
or
entity, any rights or remedies hereunder.
(e) Non-Waiver.
The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
(f) Remedies
For Breach.
Advisor
agrees that any breach of Articles 6 and 7 of this Agreement by Advisor could
cause irreparable damage to COUGAR and to the Affiliates, and that monetary
damages alone would not be adequate and, in the event of such breach or threat
of breach, COUGAR shall have, in addition to any and all remedies at law and
without the posting of a bond or other security, the right to an injunction,
specific performance or other equitable relief necessary to prevent or redress
the violation of COUGAR's obligations under such Articles. In the event that
an
actual proceeding is brought in equity to enforce such Articles, Advisor shall
not urge as a defense that there is an adequate remedy at law nor shall COUGAR
be prevented from seeking any other remedies that may be available to
it.
(g) Attorneys’
Fees.
In the
event that any arbitration or court proceeding is brought under or in connection
with this Agreement, the prevailing party in such proceeding (whether on trial
or on appeal) shall be entitled to recover from the other party all costs,
expenses and reasonable attorneys’ fees incidental to any such court proceeding
and only reasonable attorneys’ fees incidental to any such arbitration
proceeding. The term ‘prevailing party’ as used herein shall be taken and deemed
to mean the party in whose favor a final judgment or award is entered in any
such proceeding; provided, however, that if such proceeding be resolved prior
to
a final judgment or award on the merits, the party in whose favor the proceeding
is settled may by motion apply to the court, or the person(s) or board in charge
of the proceeding, for an award of the aforementioned costs, fees and expenses,
and may take judgment therefor.
(g) Governing
Law.
This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California without regard to such State’s
principles of conflict of laws.
(h) Headings.
The
headings of the Sections are inserted for convenience of reference only and
shall not affect any interpretation of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement by proper person thereunto duly
authorized.
| COUGAR BIOTECHNOLOGY, INC. | ||
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| /s/ Xxxx X. Xxxxxxxx, CEO | ||
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By: Xxxx X. Xxxxxxxx, CEO
Date:
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XXXX
XXXXXXXXXX, M.D
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| /s/ Xxxx Xxxxxxxxxx | ||
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Name:
Xxxx Xxxxxxxxxx
Title:
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