EX-10.10 19 d788220dex1010.htm EX-10.10 EXECUTION VERSION BELLICUM PHARMACEUTICALS, INC. THIRD AMENDED AND RESTATED CONSULTING AGREEMENT
Exhibit 10.10
EXECUTION VERSION
BELLICUM PHARMACEUTICALS, INC.
THIRD AMENDED AND RESTATED CONSULTING AGREEMENT
This THIRD AMENDED AND RESTATED CONSULTING AGREEMENT, dated as of November 9, 2011, is by and between Bellicum Pharmaceuticals, Inc. a Delaware corporation (the “Company”), having an office at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (“Company Premises”), and Xxxxx X. Xxxxxx, M.D., an individual, residing at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (“Consultant”).
WHEREAS, the Consultant is currently retained as a consultant by the Company pursuant to a Second Amended and Restated Consulting Agreement effective as of February 1, 2010 (the “Existing Consulting Agreement”), and the Company desires to expand the role Consultant performs to the Company to include, among other things, service as its Executive Chairman and Chief Medical Officer and the Consultant agrees to be retained by the Company in such capacities;
WHEREAS, the Company and Consultant desire to amend and restate the Existing Consulting Agreement and enter into this amended and restated consulting agreement (the “Agreement” or “Consulting Agreement”) in order to memorialize the revised terms and conditions of Consultant’s engagement by the Company;
WHEREAS, Consultant’s agreement to and compliance with the provisions in Sections 9 through 12 of this Agreement are a material factor, material inducement and material condition to the Company’s entering into this Consulting Agreement. Moreover, Consultant acknowledges that a substantial portion of the value of the engagement by the Company of Consultant is Consultant’s promise to refrain from competing with the Company, and to assign inventions to the Company, as identified in Sections 9 through 12 of this Agreement;
WHEREAS, the parties desire to assure that Consultant will not become subject to obligations to assign certain inventions he makes to the University of Texas or another institution employing Consultant (in either case, the “Employer”), in any way that conflicts with Consultant’s obligations to assign inventions to Company;
1. Term of Retention. The Company and Consultant hereby amend and restate the Existing Consulting Agreement with the terms of this Consulting Agreement. Except for earlier termination as provided in Section 7 hereof, Consultant’s engagement under this Agreement shall be for a term of three years beginning on the date of this Consulting Agreement and ending on November 8, 2014 (the “Initial Term”). This Consulting Agreement will be automatically renewed for two successive one (1) year terms following the Initial Term (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless either the Company or Consultant gives written notice to the other at least 30 days before such’ renewal would otherwise occur of the Company’s or Consultant’s election not to renew this Consulting
Agreement; provided, further, that notwithstanding anything to the contrary set forth in this Consulting Agreement, this Consulting Agreement may be terminated earlier as provided in Section 7.
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payable within ninety (90) days after the end of the calendar year for which it is payable. The amount, if any, of the Annual Performance Bonus shall be determined by the Board acting within its sole discretion but without the participation of Consultant in his role as a director.
(i) Consultant is hereby issued an additional 440,000 common stock options upon execution of this agreement, as further detailed in the Option Agreement of even date herewith. These common stock options will have the expiration terms and vesting provisions further detailed in the Option Agreement attached hereto as Exhibit D.
(ii) The Company further agrees to issue to Consultant an additional 600,000 common stock options immediately following the earlier of (A) the closing of the second tranche of the Company’s Series B 6% Cumulative Convertible Participating Preferred Stock (the “Second Tranche”), or (B) the consummation by the Company of an equity financing resulting in gross proceeds to the Company of not less than the committed amount to be funded in the Second Tranche. When issued, the additional 600,000 common stock options will be issued pursuant to an Option Agreement with the Company that will provide, among other things, for (1) the immediate vesting on issuance of 200,000 common stock options and the vesting of an additional 200,000 common stock options on each of the first and second anniversaries of the issuance date, (2) an exercise price equal to the fair market value of a share of common stock on the date of issuance, and (3) other terms and conditions not inconsistent with the foregoing contained in the form of Option Agreement attached hereto as Exhibit D.
(d) Any stock options granted pursuant to Section 4(c) shall be granted at an exercise price of no less than 100% of the fair market value of the underlying common stock on the date of grant (as determined in accordance with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and related Treasury Regulations). As of the date of this Agreement, the Company has determined the fair market value of a share of common stock to be no greater than $1.50 per share.
(i) the death of Consultant;
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(ii) the termination by the Company of Consultant’s engagement due to the Consultant’s Disability pursuant to Section 7(b) hereof;
(iii) the termination by the Consultant of Consultant’s engagement other than for Good Reason (as hereinafter defined); provided, however, that Consultant is required to provide 30 (thirty) days written notice to the Board of Consultant’s intention to terminate Consultant’s engagement;
(iv) the termination by the Company of Consultant’s engagement without Cause;
(v) the termination by the Company of Consultant’s engagement for Cause pursuant to Section 7(c); or
(vi) the termination by Consultant of Consultant’s engagement for Good Reason (as hereinafter defined) pursuant to Section 7(e).
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complete such cure. The determination of whether Cause exists must be made by a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board (excluding Consultant, if he is then a member of the Board) at a meeting of the Board that was called for the purpose of considering such termination finding, in the good faith opinion of the Board, that Cause existed and specifying the particulars thereof in detail. Consultant, together with Consultant’s counsel, shall be given an opportunity to be heard by the Board before the Board’s decision.
(e) Termination by the Consultant for Good Reason. Consultant may terminate this Agreement for Good Reason. The term “Good Reason” shall mean the occurrence, without the Consultant’s prior written consent, of any one or more of the following: (i) any reduction in Consultant’s compensation as set forth in Section 4 hereof; (ii) a material adverse change in Consultant’s title, status, authority, duties or responsibilities; (iii) the failure by the Company to obtain a satisfactory agreement from any successor of the Company requiring such successor to assume and agree to perform the Company’s obligations under this Agreement; or (iv) the failure by the Company to comply with any material provision of this Agreement.
No resignation for Good Reason shall be effective unless Consultant shall, within ninety (90) days of sufficient facts known to Consultant to constitute Good Reason, give written notice to the Chief Executive Officer of the Company or its representative setting forth in reasonable detail the material facts constituting Good Reason and the reasonable steps Consultant believes necessary to cure, and thereafter the Company shall have thirty (30) business days from the date of such notice to cure any such occurrence otherwise constituting Good Reason, provided that no such notice and opportunity to cure is required if Consultant has previously given the Company notice and opportunity to cure the same conduct.
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10. Non-Competition: Non-Solicitation, Etc.
(i) This Agreement is entered into in reliance on Consultant’s agreement to these non-compete and non-solicitation provisions. Consultant’s agreement to the provisions in Paragraphs 9 through 11 is a material condition of the Company’s entering into the Agreement and engagement of Consultant.
(ii) Contemporaneously with the execution of this Agreement, the Company agrees to provide Consultant with access to new Confidential Information and in a greater quantity and/or expanded nature than any such Confidential Information that may have already been provided to Consultant and with additional opportunities to broaden the Company’s services and develop the Company’s customers in a manner not previously available to Consultant including, but not limited to, information regarding the Company’s business plan; research results; information supporting patent applications; and Company standard operating procedures related to the manipulation of dendritic cell signaling pathways to enhance immune response, and the activation of apoptotic pathways to mitigate cell therapy toxicity.
(iii) The Company promises that during Consultant’s engagement, the Company will provide Consultant with the opportunity to develop goodwill and establish rapport with the customer contacts in a greater quantity and/or expanded nature than any such opportunities that may have already been provided to Consultant;
(iv) The Company promises that Consultant will continue to receive and have access to new Confidential Information throughout Consultant’s engagement by the Company.
(i) Consultant will not, during or after Consultant’s engagement by the Company, use, copy, remove, disclose or disseminate to any person or entity, the Company’s Confidential Information, except (i) as required in the course of performing Consultant’s duties with the Company for the benefit of the Company, or (ii) when required to do so by a court of law, by any governmental agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Consultant to divulge, disclose or make accessible such information, it being understood that Consultant will promptly notify the Company of such requirement so that the Company may seek to obtain a protective order;
(ii) Consultant agrees that Consultant’s engagement hereunder is on a part-time basis.
(iii) Following the termination of this Consulting Agreement, Consultant will immediately return to the Company all materials created, received or utilized in any way in conjunction with Consultant’s work performed with the Company or that in any way incorporate, reflect or constitute the Company’s Confidential Information.
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(iv) Consultant acknowledges that the market for the Company’s products, services, and activities is global, and that the products, services and/or activities can be provided anywhere in the world where cancer therapies are utilized. Consultant recognizes that the Company draws its customers and/or clients from around the world because it will seek to file patents and run clinical trials in countries around the world, and sell its product to consumers around the world and/or pharmaceutical companies located around the world. Moreover, Consultant recognizes that the Company’s customers may be contacted by telephone, in person, or in writing (including e-mail via the Internet). Consultant further acknowledges that due to the international scope of the Company’s customer and client base, the following non-solicitation/non-competition restriction is necessary.
(vi) Consultant agrees and acknowledges that the Company will not be provided access to Confidential Information, as defined in Section 9, from or belonging to a third party that Consultant was exposed to or received from said third party prior to the execution date of the Existing Consulting Agreement and that is the subject of any confidentiality requirement of any kind between Consultant and said third party. Consultant also agrees to indemnify, reimburse, and hold harmless the Company for all attorney fees, expenses, costs, harm, or related costs to the Company arising from or as a result of any actual breach of this section by Consultant.
(i) Consultant shall not, directly or indirectly, (A) engage in or participate (including, without limitation, as an investor, officer, employee, director, agent, or consultant (any such capacity, being a “Participant”) in or on behalf of any entity engaging in (1) any line of business competitive with that of the Company or any of its Affiliates, including but not limited to the Company’s business of developing therapeutics for metastatic castrate resistant prostate cancer or graft versus host disease, or (2) any other line of business that the Company or any of its Affiliates was contemplating on or before the date of Consultant’s termination as evidenced by existing memoranda, minutes or other correspondence (including, without limitation, internal or external presentations), if during Consultant’s engagement by the Company, Consultant had access or potential access to information regarding the proposed plans or the business in which the Company engaged, or (B) except as a consultant to the Company, in any capacity for Consultant or others, directly or indirectly call on, service, or solicit competing business from clients or prospective clients of the Company if during Consultant’s engagement by the Company Consultant had or made contact with the client, or had access to information and files about the client (the “Non-Compete Obligations”), provided, however, that nothing herein shall prevent Consultant from investing as a less than 5% shareholder in securities of any company listed on a national securities exchange or quoted on an automated quotation system. Consultant has disclosed his relationship with the entities listed on Exhibit C attached hereto and the foregoing will not apply to such relationships as disclosed on Exhibit C. Consultant shall notify the Company in writing of all other consulting agreements, employment agreements or arrangements which Consultant enters into with, or any consulting services which Consultant may provide to any third party subsequent to the date of this Agreement.
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(iii) During Consultant’s engagement by the Company and for a period of twelve (12) months after Consultant’s engagement by the Company has ended, Consultant will not directly or indirectly become employed or otherwise associated with any of the following entities, each of which is a direct competitor of the Company, in any geographic region:
Dendreon Corporation | 0000 Xxxxx Xxxxxx Xxxxxxx, XX 00000 | |
Argos Therapeutics, Inc. | 0000 Xxxxxxxxxx Xxxxx Xxxxxx, XX 00000 | |
Athersys, Inc. | 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx, XX | |
Bavarian Nordic | Xxxxxxxxxxxx 00X Xxxxxxxxxx 0000 Xxxxxxx | |
Intrexon Corporation | 0000 Xxxxx Xxxxx Xxxxxxxxxx, XX | |
Kiadis Pharma B.V. | Xxxxxxx 000-000 0000 XX Xxxxxxxxx Xxx Xxxxxxxxxxx | |
Mesoblast Limited | 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 | |
MolMed S.p.A. | Xxx Xxxxxxxxx, 00 00000 Xxxxx, Xxxxx | |
Northwest Biotherapeutics, Inc. | 0000 Xxxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxx, XX 00000 | |
Progenies Pharmaceuticals, Inc. | 000 Xxx Xxx Xxxx Xxxxx Xx. Xxxxxxxxx, XX 00000 |
Consultant and the Company agree that with respect to the foregoing entities such names are the common names of such entities. Consultant and the Company agree that the restrictions contained in this Agreement are binding whether or not Consultant and the Company have used the correct legal name, affiliated entity, or new owner of such entities.
(iv) Consultant agrees that Consultant’s work for any third party engaged in the Company’s business during the Non-Compete Period inevitably would lead to Consultant’s unauthorized use of the Company’s Confidential Information, even if such use is unintentional. Because it would be impossible, as a practical matter, to monitor, restrain, or police Consultant’s use of such Confidential Information other than by Consultant’s not working for such third party, and because the Company’s business is highly specialized, the competitors are identifiable, the market for the Company’s product, services and activities is global, and the Company’s customers are located throughout the world, Consultant agrees that restricting such employment as set forth in this Agreement is the narrowest way to protect the Company’s legitimate business interests, and the narrowest way of enforcing Consultant’s consideration for the receipt of Company’s Consideration, (namely, Consultant’s promise not to use or disclose that Confidential Information/specialized training).
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The Company acknowledges that Consultant has no obligation to assign to the Company any inventions, original works of authorship, derivative works, developments, improvements and trade secrets that are not Inventions or works made for hire (the “Non-Consulting Inventions”), and that such Non-Consulting Inventions may be assigned to Employer. Consultant agrees that Consultant will not enter into an agreement with Employer unless the agreement includes an acknowledgment by Employer that Employer has no right to any Inventions assigned to the Company pursuant to this Agreement. Moreover, prior to accepting any offers from any Employer, Consultant agrees to provide the Company a redacted copy of the offer letter, or employment agreement, so that the Board of Directors of the Company can review the offer letter, or employment agreement for compliance with this paragraph of Section 12(b). So long as Consultant reasonably cooperates with the Company, the Company shall indemnify, reimburse, and hold harmless Consultant for all attorney fees, expenses, costs, harm, or related costs to Consultant arising from or as a result of any conflict or dispute regarding his obligations hereunder and those owed to Employer.
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Company. The records will be in the form of notes, sketches, drawings and any other format that may be specified by the Board. The records will be available to and remain the Company’s sole property at all times.
(e) Patent and Copyright Registrations. Consultant agrees to assist the Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in any and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, declarations, assignments and all other instruments that the Company deems necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. Consultant further agrees that Consultant’s obligations to execute or cause to be executed, when it is in Consultant’s power to do so, any such instrument or papers shall continue after the termination of this Agreement. If the Company is unable because of Consultant’s mental or physical incapacity or for any other reason to secure Consultant’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works of authorship assigned to the Company as above, then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney in fact, to act for and in Consultant’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by Consultant.
13. Disputes. Any dispute or controversy between the Company and Consultant, arising out of or relating to this Consulting Agreement, the breach of this Consulting Agreement, or otherwise, shall be settled by arbitration in Houston, Texas, administered by the American Arbitration Association in accordance with its Employment Rules then in effect and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either xxxxx may, without inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Company and Consultant. Each party shall bear its or his costs and expenses in any arbitration hereunder and one-half of the arbitrator’s fees and costs; provided, however, that the arbitrator shall have the discretion to award the prevailing party reimbursement of its or his reasonable attorney’s fees and costs.
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If to the Company:
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Bracewell & Xxxxxxxx LLP
711 Louisiana, Suite 0000
Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
If to Consultant, to Consultant’s address set forth above.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without reference to principles of conflict of laws.
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All reimbursements under this Consulting Agreement shall be paid as soon as administratively practicable after Consultant has provided the appropriate documentation, but in no event shall any reimbursements be paid later than the last day of the calendar year following the calendar year in which the expense was incurred. Notwithstanding anything in this Consulting Agreement to the contrary, to the extent required by Section 409A of the Code: (1) the amount of expenses eligible for reimbursement or in-kind benefits provided under this Consulting Agreement during a calendar year will not affect the expenses eligible for reimbursement or in-kind benefits provided in any other calendar year, and (2) the right to reimbursement or in-kind benefits provided under this Consulting Agreement shall not be subject to liquidation or exchange for another benefit.
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By: | Bellicum Pharmaceuticals, Inc. | |||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Xxxxxx X. Xxxxxxx | ||||
Chief Executive Officer |
/s/ Xxxxx X. Xxxxxx |
Xxxxx X. Xxxxxx, M.D. |
Signature Page to Consulting Agreement
EXHIBIT A
ANNUAL PERFORMANCE BONUS
Any Annual Performance Bonus shall be based on achievement of qualitative strategic goals established in writing by the Board, after consultation with Consultant. Within ninety (90) days after the first day of each calendar year, the Board, after consultation with Consultant, shall establish, in writing, the required improvement in the qualitative strategic goals over the prior calendar year necessary to achieve the target bonus. The target and maximum Annual Performance Bonus shall be thirty percent (30%) of Consultant’s Base Fee.
The Annual Performance Bonus shall be adjusted from the target bonus amount based on a determination in the sole discretion of the Board of whether Consultant and the Company have achieved the qualitative strategic goals.
EXHIBIT B
INVENTIONS
1. | Novel hereditary renal and prostate cancer syndrome |
2. | Novel molecular forms of PSA including proPSA and BPSA |
EXHIBIT C
EXISTING RELATIONSHIPS
1. | Director, Vanguard Urologic Institute and the Texas Prostate Center. |
2. | Director, Vanguard Urologic Research Foundation. |
3. | Professor and Chair of the Department of Urology, Center for Clinical and Translational Sciences, UTHSC-H. |
4. | Director of Urology, Memorial Hermann Hospital. |
5. | Clinical Professor of Urology, Baylor College of Medicine. |
EXHIBIT D
OPTION AGREEMENT
See attached.
EXHIBIT E
SERVICES
The Services shall include, but shall not be limited to, the following:
• | Serve as the Company’s Executive Chairman of the Board of Directors; |
• | Serve as the Company’s Chief Medical Officer; |
• | Support and facilitate the transfer of licensed technology to the Company; |
• | Consult with Company on Company’s product portfolio strategy; |
• | Assist, as necessary in providing strategic input to the annual and long-range budgetary process of the Company; |
• | Assist the Company in its fund raising efforts including but not limited to meeting with potential investors and other interested parties and responding to due diligence inquiries; |
• | Consult with the Company regarding its research and development activities; |
• | Consult with the Company regarding the clinical development of Bellicum technologies or Bellicum products or Bellicum clinical trials procedures; |
• | Assist the Company in evaluation other non-Bellicum technologies; |
• | Participate in meetings with potential collaborative partners; and |
• | Other duties as assigned and agreed upon by both parties. |