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EXHIBIT 10.45
CONSULTING SERVICES AGREEMENT
BETWEEN
ILEX ONCOLOGY, INC.
AND
XXXXXXX X. XXXXXXX, XX., M.D.
THIS AGREEMENT is made and entered into as of the 16th day of March,
1996, (the "Effective Date") by and between Ilex Oncology, Inc., a Delaware
corporation ("Ilex Oncology"), and Xxxxxxx X. Xxxxxxx, Xx., M.D., an individual
residing in San Antonio, Texas ("Xx. Xxxxxxx").
IN CONSIDERATION of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is agreed as follows:
1.0 Engagement. Ilex Oncology hereby engages Xx. Xxxxxxx to serve
as a consultant to Ilex Oncology, and Xx. Xxxxxxx hereby accepts such
engagement, upon and subject to the terms and conditions set forth herein. The
parties understand and acknowledge that Xx. Xxxxxxx is a respected faculty
member of the University of Texas Health Science Center at San Antonio
("UTHSCSA"). The parties will endeavor to ensure that the terms of this
Agreement do no interfere with Xx. Xxxxxxx'x obligations to UTHSCSA or any
other institution or entity with which Xx. Xxxxxxx is affiliated. As it is
recognized that Xx. Xxxxxxx must obtain certain approvals for this consulting
agreement from UTHSCSA and/or the University of Texas System, Ilex Oncology
will assist Xx. Xxxxxxx in obtaining such approvals. Additionally, Xx.
Xxxxxxx is affiliated with CTRC Research Foundation, and as a consultant to
other pharmaceutical companies. To the extent that those engagements also
require approvals for this agreement, Xx. Xxxxxxx shall be primarily
responsible for securing the same, with the assistance of Ilex Oncology. This
agreement is expressly conditional upon obtaining such approvals, and shall
terminate if such approvals cannot be obtained within a reasonable period of
time after the Effective Date.
2.0 Affiliations. From and following the Effective Date of this
Agreement, Xx. Xxxxxxx shall not undertake any further affiliations that would
conflict with his duties and responsibilities hereunder without Ilex Oncology's
written consent, which consent shall not be unreasonably withheld. Xx. Xxxxxxx
shall, upon execution of this agreement, disclose to Ilex Oncology all
consulting engagements of Xx. Xxxxxxx and disclose all new consulting
engagements of Xx. Xxxxxxx which are undertaken during the term of this
agreement. Such disclosures shall be made in writing to the President of Ilex
Oncology.
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3.0. Duties. Xx. Xxxxxxx agrees to provide the services set forth
on Exhibit A which is incorporated herein for all purposes. The parties
understand and acknowledge that potential conflicts or duality of interest, or
the appearance of such conflict or duality of interest, may arise during Xx.
Xxxxxxx'x performance of those duties and services as a result of Xx. Xxxxxxx'x
other affiliations. Both parties recognize the importance of avoiding both
actual conflicts and the appearance of conflicts of interest. The parties will
therefore mutually develop procedures for identifying and evaluating actual,
potential and apparent conflicts of duality of interests, as well as procedures
for ensuring strict compliance with all applicable conflicts of interest laws,
rules, regulations and policies adopted by the State of Texas, the University
of Texas System, UTHSCSA, the Cancer Therapy and Research Foundation of South
Texas (and its affiliated entities), and other interested institutions,
companies or concerns. In discharging his duties and responsibilities
hereunder, Xx. Xxxxxxx will advise Ilex Oncology when and if an actual or
potential conflict arises. The parties will then mutually work at attempting
to resolve the conflict. If a resolution is not possible, Xx. Xxxxxxx shall be
excused from performing whatever duties or services which gave rise to the
actual, potential or apparent conflict.
4.0 Compensation. Compensation for Xx. Xxxxxxx'x services shall
be in accordance with Exhibit B, which is attached hereto and incorporated
herein for all purposes.
5.0 Independent Contractor. The parties understand and
acknowledge that Xx. Xxxxxxx is an independent contractor and is not an
employee of Ilex Oncology for the purposes of this Agreement, the Social
Security Act, the income withholding provisions of the Internal Revenue Code of
1986, as amended, or other federal or state laws relating to compensation,
insurance, unemployment, or xxxxxxx'x compensation. Xx. Xxxxxxx acknowledges
and agrees that it shall be his obligation to report as self-employment income
all compensation received or accrued as a result of this Agreement. Xx.
Xxxxxxx acknowledges that he will not be entitled to any insurance, pension,
profit sharing, retirement or other employee benefits which Ilex Oncology may
provide to its employees during the term of this Agreement. This Agreement
shall not be construed as creating a partnership, joint venture, agency or
employment relationship, or as granting a franchise under either federal or
state law.
6.0 Inventions. The parties acknowledge that the terms of Xx.
Xxxxxxx'x affiliation with other companies and institutions may require, to
varying degrees and under certain conditions, that Xx. Xxxxxxx assign his
rights to any discoveries, inventions or developments to such companies and
institutions. IN the performance of his duties and responsibilities hereunder,
Xx. Xxxxxxx may conceive, make or develop products, processes or other
intellectual property. It is the intent of the parties that intellectual
property conceived, made or developed by Xx. Xxxxxxx during the performance of
his duties and responsibilities hereunder that related to Ilex Oncology's
business, or that is conceived, make or developed using Ilex Oncology's funds,
facilities, materials or information, shall be owned by Ilex Oncology. Xx.
Xxxxxxx will use his best good faith efforts to ensure that his obligations
under affiliations with other
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companies or institutions do not extend to intellectual property rightfully
owned by Ilex Oncology. Xx. Xxxxxxx will assist Ilex Oncology in obtaining
legal protection for such intellectual property as part of his duties and
responsibilities hereunder, and will execute such documents as reasonably
necessary to secure such protection and confirm ownership in Ilex Oncology.
The parties will develop procedures for identifying and reporting such
intellectual property to Ilex Oncology, as well as identifying any potentially
conflicting claims to such intellectual property. In the event of such
potentially conflicting claims, the parties will mutually cooperate in
resolving such conflicts.
7.0 Confidential Information. Xx. Xxxxxxx agrees to maintain in
confidence all information and materials provided by, or obtained from or
through, Ilex Oncology including, without limitation, all information regarding
drugs; pharmaceuticals; gene manipulations and/or therapy; products, compounds
and compositions resulting from chemical, DNA, genetic engineering or other
methods; potential new uses of existing drugs, compounds or compositions;
medical devices; and all financial information, computer software and
documentation; and other information relating to the business of Ilex Oncology
(collectively, the "Confidential Information"). Xx. Xxxxxxx shall not publish,
use or disclose Confidential Information learned, developed or acquired as a
result of services offered under this Agreement without Ilex Oncology's prior
written consent. Confidential Information shall not include (i) information
which was rightfully in Xx. Xxxxxxx'x possession without an obligation of
confidentiality prior to disclosure by or through Ilex Oncology' (ii)
information which lawfully becomes part of the public knowledge, literature or
generally available to the public through no act of Xx. Xxxxxxx' or (iii)
information obtained from any third party, provided that any such third party
did not obtain such information from Ilex Oncology or obtain such information
in confidence. Xx. Xxxxxxx shall protect the Confidential Information and
shall take all reasonable steps to prevent the unauthorized disclosure,
dissemination, or publication of the Confidential Information.
All data, records, analyses, reports and material prepared or compiled
by Xx. Xxxxxxx or furnished to Xx. Xxxxxxx during the term hereof shall be the
sole and exclusive property of Ilex Oncology, and all of such data, records,
analyses, reports and materials, and all copies thereof, shall be delivered to
Ilex Oncology at its request or on the termination of this Agreement.
The parties acknowledge that the terms of Xx. Xxxxxxx'x other
affiliations also contain or require certain obligations of confidentiality.
In discharging his duties relative to Confidential Information, Xx. Xxxxxxx
shall advise Ilex Oncology when and if an actual or potential conflict with
such other obligations arise. The parties will then mutually work at
attempting to resolve the conflict. If such conflict cannot be resolved, Xx.
Xxxxxxx is expressly excused from performing any services hereunder that would
result in a breach or potential breach of his confidentiality obligations owed
to another entity.
8.0 Term and Termination.
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8.1 Term. Subject to the rights of termination set forth in this
Section 8.0, this Agreement shall remain in full force and effect from November
1, 1994 until October 31, 1998, unless sooner terminated by Xx. Xxxxxxx'x death
or continuing inability to discharge the duties hereunder for three (3)
consecutive months. Ninety (90) days prior to the end of the term of this
Agreement, the parties shall enter into negotiations regarding the renewal of
this Agreement or the execution of a new agreement, which renewal or new
agreement shall contain such terms and conditions as may be agreed by the
parties.
8.2 Voluntary Termination. During the term of this Agreement,
either party may terminate the Agreement without cause, by giving sixty (60)
days written notice of termination to the other party.
8.3 Termination With Cause. In the event of breach of this
Agreement by either party, the non-breaching party may, at its option, cancel
this Agreement for such breach by giving written notice of cancellation to the
breaching party, which cancellation shall be effective thirty (30) days
following the delivery of such notice or such later time as may be specified in
such notice, unless the breaching party shall have cured such breach prior to
the expiration of the notice.
8.4 Limited Survival Upon Termination. Sections 6 and 7 shall
survive termination of this Agreement and shall remain in full force and
effect.
9.0 Miscellaneous.
9.1 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and, unless otherwise provided
herein, shall be deemed to have been duly given upon hand delivery or upon
deposit in the United States Mail, postage prepaid, certified or registered
mail, return receipt requested, as follows:
If to Ilex Oncology:
Ilex Oncology, Inc.
14960 Omicron
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Love
If to Xx. Xxxxxxx:
Xxxxxxx X. Xxxxxxx, Xx., M.D.
00000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
or at such other address as shall have been furnished to the other in writing
in accordance herewith, except that such notice of such change shall be
effective only upon receipt.
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9.2 Amendments and Waiver. This Agreement may be amended or
modified by, and only by, a written instrument executed by all the parties
hereto. The terms of this Agreement may be waived by, and only by, a written
instrument executed by the party against whom such waiver is sought to be
enforced.
9.3 Section and Other Headings. The section and other headings
contained in this Agreement are for convenience of reference only and shall not
in any way affect the meaning or interpretation of this Agreement.
9.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
9.5 Assignments and Parties in Interest. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. This Agreement calls for Xx. Xxxxxxx'x
personal services and may not be assigned by Xx. Xxxxxxx without the prior
written consent of Ilex Oncology.
9.6 No Implied Rights or Remedies. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm, or corporation, other
than the parties hereto and their respective successors and assigns, any rights
or remedies under or by reason of this Agreement.
9.7 Agreement of Further Cooperation. Each of the parties agrees
to execute and deliver such further documents and to cooperate in such manner
as may be necessary to implement and give effect to the agreements contained
herein.
9.8 Entire Agreement. This Agreement, together with all exhibits
hereto, embodies the entire agreement and understanding between the parties
hereto relating to the subject matter hereof and supersedes any prior
agreements and understandings relating to the subject matter hereof.
9.9 Severability. If any part or provision of this Agreement is
or shall be deemed violative of any applicable laws, rules or regulations, such
legal invalidity shall not void this Agreement or affect the remaining terms
and provisions of this Agreement, and this Agreement shall be construed and
interpreted to comport with all such laws, rules or regulations to the maximum
extent possible.
9.10 Applicable Law. This Agreement has been accepted and made
performable in Bexar County, Texas. This Agreement and the rights and
obligations of the parties hereto shall be construed under and governed by the
laws of the State of Texas, without giving effect to principles of conflict of
laws. The exclusive venue for resolution of any dispute between the parties
related to the subject matter of this Agreement shall be in Bexar County,
Texas.
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9.11 IRS Contingency. Notwithstanding anything contained herein to
the contrary, Ilex Oncology and Xx. Xxxxxxx agree that they shall negotiate in
good faith to reach an equitable adjustment to the provisions of this Agreement
in the event that either (a) the United State Internal Revenue Service notifies
the Cancer Therapy and Research Foundation of South Texas ("CTRF") and/or CTRC
Research Foundation ("CTRC"), or any affiliate thereof that it will not rule
that the establishment and operation of Ilex Oncology will not adversely affect
CTRF's, CTRC's or any such affiliate's status as an exempt organization under
Section 501(c)(3) of the Internal Revenue Code, or the Internal Revenue Service
otherwise asserts that the establishment and operation of Ilex Oncology may
adversely affect CTRF's, CTRC's or any such affiliate's status as an exempt
organization under Section 501(c)(3) of the Internal Revenue Code; or (b) Ilex
Oncology fails to receive at least three million dollars ($3,000,000) by June
30, 1996 from the sale to persons other than CTRF, CTRC and their affiliates of
its common or preferred stock. If Ilex Oncology and Xx. Xxxxxxx cannot reach
such an agreement within ninety (90) days subsequent to the occurrence of such
an event, this Agreement shall automatically terminate as of the expiration of
that ninety (90) day period.
EXECUTED as of the day and year first above written.
ILEX ONCOLOGY, INC.
By: /s/ XXXXXXX XXXX
--------------------------------
Name: Xxxxxxx Xxxx
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Title: President
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CONSULTANT:
/s/ XXXXXXX X. XXXXXXX, XX.
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Xxxxxxx X. Xxxxxxx, Xx., M.D.
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EXHIBIT A
DUTIES AND SERVICES
1.0 Consultation Services. Xx. Xxxxxxx shall perform the
following services for Ilex Oncology:
1.1 Committee Co-Chairman. Xx. Xxxxxxx shall be a member
of the Scientific Advisory Committee ("SAC") and serve as co-chairman of the
committee. Xx. Xxxxxxx shall attend all meetings of the SAC which shall meet
at least four times per year.
1.2 Drug Acquisition. Xx. Xxxxxxx shall, consistent with
the terms of this Agreement and in collaboration with the SAC, advise the
management of Ilex Oncology of viable opportunities for Ilex Oncology to
acquire for the purpose of commercialization chemotherapy compounds and drugs
as well as therapeutic or supportive care compounds.
1.3 Clinical Development Strategies. Xx. Xxxxxxx shall,
consistent with the terms of this Agreement and as part of his duties with the
SAC, assist Ilex Oncology in the development of clinical development
strategies.
1.4 Scientific Review. In conjunction with the SAC, Xx.
Xxxxxxx shall review scientific and clinical data on compounds acquired by Ilex
Oncology. As co-chairman of the SAC, Xx. Xxxxxxx shall assist in reporting to
the management of Ilex Oncology the results of the SAC findings and
recommendations relative to such requisite standards of conduct.
2.0 Requisites. In providing services under this Agreement, Xx.
Xxxxxxx shall at all times perform his duties and responsibilities in
conformance with the following requisite standards of conduct:
2.1 Xx. Xxxxxxx shall not make any recommendations about,
or actively participate in decisions regarding the acquisition of technologies
or compounds owned or discovered by or licensed to CTRC Research Foundation
("CTRC Research"), when such actions would constitute a conflict of interest,
give the appearance of a conflict of interest or a breach of any policy of CTRC
Research of Ilex Oncology.
2.2 Xx. Xxxxxxx shall not make any recommendations about,
or actively participate in decisions regarding the acquisition of technologies
or compounds owned or discovered by or licensed to The University of Texas
Health Science Center at San Antonio ("UTHSCSA"), when such actions would
constitute a conflict of interest, give the appearance of a conflict of
interest or a breach of any policy of UTHSCSA or Ilex Oncology.
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2.3 Xx. Xxxxxxx shall not make any recommendations about,
or actively participate in decisions regarding the acquisition of technologies
or compounds for which Xx. Xxxxxxx was the Principal Investigator, supervised
the Principle Investigator or provided leadership for the clinical or
preclinical studies for such compounds or technologies, when such actions would
constitute a conflict of interest, give the appearance of a conflict of
interest or a breach of any policy of Ilex Oncology or the sponsor of the
study, including in particular Xx. Xxxxxxx'x affiliation with Southwest
Oncology Group.
2.4 Xx. Xxxxxxx shall not function as the Principal
Investigator for or supervise the Principal Investigator for clinical or
preclinical studies conducted by Ilex Oncology.
2.5 If Xx. Xxxxxxx publishes an article, paper or other
work regarding technologies or compounds owned or discovered by Ilex Oncology
or licensed to Ilex Oncology, Xx. Xxxxxxx shall make an appropriate disclosure
of the fact that he has a financial interest in the company.
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EXHIBIT B
COMPENSATION
1. Ilex Oncology shall pay to Xx. Xxxxxxx the following fees for Xx.
Xxxxxxx'x services:
a. A retainer of fifteen thousand dollars ($15,000.00) per year,
which shall be paid within thirty (30) days of the execution
of this Agreement and on the anniversary thereof;
b. Two thousand dollars ($2,000.00) per day for every full day in
which services are provided pursuant to this Agreement and for
partial days. Xx. Xxxxxxx shall be compensated at the rate of
two hundred fifty dollars ($250.00) per hour; and
c. Two thousand dollars ($2,000.00) per meeting for attending
meetings of the SAC.
2. a. Right to Purchase Common Stock. In addition to the fees
described above, Xx. Xxxxxxx shall be entitled, for a period
of thirty (30) days from the date of this Agreement, to
purchase up to 480,000 shares (the "Shares") of common stock,
par value $.01 per share, of Ilex Oncology at a price of $.10
per share (the "Purchase Price").
b. Financing. Ilex Oncology will loan Xx. Xxxxxxx up to
forty-eight thousand dollars ($8,000.00) for the purchase of
the Shares. Such loan will be evidenced by a promissory note
(the "Note") and related agreements as required by Ilex
Oncology. The Note will bear interest at a rate of eight
percent (8%) simple interest (i.e. not compounded) and will be
payable in quarterly installments based upon a ten (10) year
amortization schedule and will mature on the fourth
anniversary of this Agreement. The Note shall be secured by a
pledge of that number of Shares basis determined by dividing
the outstanding principal balance of the Note by the per share
purchase price of the Shares (e.g. if the Note balance is
$20,000, the number of Shares pledged would be 200,000), with
a mechanism for partial releases of pledged shares to reflect
reductions in the unpaid balance of the Note on the same
basis.
c. Restrictions on Shares. Xx. Xxxxxxx'x ownership of the Shares
shall be subject to the following restrictions, in addition to
restrictions on transfer that might be imposed by applicable
state or federal securities laws:
(1) For a period of four (4) years from the date Xx.
Xxxxxxx purchases the Shares (the "Purchase Date"),
Xx. Xxxxxxx shall not sell,
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transfer, pledge or otherwise dispose of or encumber
the Shares, or any of them, other than as provided in
this Agreement.
(2) In the event this Agreement is terminated during the
term hereof for cause by Ilex Oncology or without
cause by Xx. Xxxxxxx, Ilex Oncology shall have the
right, but not the obligation, to purchase the Shares
from Xx. Xxxxxxx; provided, however, that the number
of Shares to which such right to purchase applies
shall be reduced by 25% for each year of the term
hereof which has been completed as of the effective
date of such termination (the "Termination Date").
For example, if three years have been completed under
this Agreement as of the Termination Date, Ilex
Oncology shall have the right to purchase a number of
Shares equal to 25% of the number of Shares
originally purchased by Xx. Xxxxxxx pursuant to this
Agreement. The price per share to be paid by Ilex
Oncology for any Shares purchased by it pursuant to
this paragraph shall be equal to the Purchase Price
plus interest at the Agreed Rate from the Purchase
Date through the Termination Date.
3. Stock Option
a. As additional compensation for services rendered under this
Agreement, Ilex Oncology shall grant to Xx. Xxxxxxx an option
to acquire up to a certain number of shares of common stock
("Common Stock") of Ilex Oncology. The exercise price of the
option shall be equal to the Common Stock equivalent purchase
price per share of equity securities (anticipated to be
preferred stock) issued by Ilex Oncology pursuant to its
initial private placement or other offering which results in
gross proceeds to Ilex Oncology in excess of $3 million. The
number of shares of Common Stock covered by the option shall
be equal to $100,000 divided by the Common Stock equivalent
purchase price per share applicable to such offering (for
example, if the private placement price is $1.50 per share,
Xx. Xxxxxxx would receive an option to acquire up to 66,667
shares). The option shall vest over four (4) years as
follows: 25% on the first anniversary of this Agreement, 25%
on the second anniversary of this Agreement, 25% on the third
anniversary of this Agreement, and 25% on the fourth
anniversary of this Agreement. All options must be exercised
upon the later of (i) the fifty year anniversary of this
Agreement, (ii) one year subsequent to the termination of
employment, for any reason, from Ilex Oncology, or (iii) one
year subsequent to the termination of the "lock-up period"
that is negotiated by Ilex Oncology and its underwriters in
connection with an initial public offering of Ilex Oncology's
Common Stock (the "Option Term"). The option will be granted
contemporaneously with the completion of such initial private
placement or other offering pursuant to a separate instrument
which shall make reference to the provision of this Agreement.
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b. The stock option issued by Xx. Xxxxxxx pursuant to this
Section shall be consistent with Ilex Oncology's stock option
plan (the "Plan") to be adopted for key employees of Ilex
Oncology. Accordingly, Xx. Xxxxxxx shall have the following
rights relating to termination of this Agreement pursuant to
the provisions of Article 8:
(1) In the event of termination by Ilex Oncology without
cause under Section 8.2; (i) outstanding stock
options held by Xx. Xxxxxxx which are then vested
shall remain exercisable for the Option Term, (ii)
if, within ten (10) days of such termination, Xx.
Xxxxxxx notifies Ilex Oncology that he is making an
election under this Section, outstanding stock
options held by Xx. Xxxxxxx which would vest within
one year from the date of termination shall
automatically become vested and remain exercisable
for the Option Term, and (iii) after giving effect to
any accelerated vesting under clause (ii) above, any
then unvested portion of Xx. Xxxxxxx'x outstanding
stock options shall lapse.
(2) In event of termination by Ilex Oncology for "cause"
under Section 8.3, upon death or disability of Xx.
Xxxxxxx or by Xx. Xxxxxxx pursuant to a voluntary
resignation under Section 8.2, (i) any portion of Xx.
Xxxxxxx'x outstanding stock options which are vested
as of the date of termination shall remain
exercisable for the Option Term, and (ii) any then
unvested portion of Xx. Xxxxxxx'x outstanding stock
options shall lapse.
