CONSULTING AGREEMENT EFFECTIVE DATE: August 10, 2006
EXHIBIT 10.65
EFFECTIVE DATE: August 10, 2006
This Consulting Agreement (the “Agreement”) is made by and between IDM Pharma, Inc., a
Delaware corporation (the “Company”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual and the Executive Chair of
the Company’s Board of Directors (the “Consultant”).
1. Engagement of Services. The Company agrees to engage Consultant, and Consultant agrees to
provide services to the Company in connection with her role as Executive Chair, under the terms and
conditions herein provided. Consultant agrees to serve the Company by advising and consulting with
Company’s management and Board of Directors with regard to operations of the Company, including the
Company’s achievement of certain key milestones, and such other duties and responsibilities to be
assigned to her from time to time by the Board of Directors. It is anticipated that Consultant’s
services under this Agreement shall require, on average, approximately two to two and one-half work
days per week. The manner and means by which Consultant chooses to complete the services are in
Consultant’s sole discretion and control. The Company will make its facilities, equipment and
personnel available to Consultant when necessary or appropriate.
2. Compensation. The Company will pay Consultant at a rate of $10,000 per month for her services
under this Agreement. Consultant will be reimbursed for expenses, including the costs of travel
reasonably incurred in connection with her services under this Agreement, provided Consultant has
furnished such documentation for expenses as Company may reasonably request.
3. Grant of Options. Consultant, subject to the terms of the Company’s 2000 Stock Plan, as amended
(the “Plan”) and the form of stock option grant agreement attached hereto as Exhibit A (the “Stock
Option Agreement”), will be granted nonstatutory stock options covering a total of six hundred
thousand (600,000) shares of the common stock of the Company (the “Options”). The exercise price
of the Options will be set at the closing price of the Company’s common stock as quoted on the
Nasdaq Global Market on the date of grant. The Options will have a ten (10) year term from the
date of grant. The Options will expire to the extent not exercised before the tenth
(10th) anniversary of the date of grant or may expire earlier as provided below or upon
Consultant’s termination of continuous service as provided in the Stock Option Agreement. The
Option for a specified number of shares will vest and become exercisable only upon the Company’s
attainment of the performance milestone corresponding to such Option as set forth in the
resolutions of the Board of Directors of the Company adopted August 10, 2006.
Notwithstanding anything to the contrary set forth herein, neither the grant of the Options,
the performance milestones, or anything else in this Agreement requires the Company to pursue any
business strategy, and the Company reserves the right to modify its business strategy at any time
and for any reason, including changes that may prevent Consultant from
1.
attaining one or
more of the performance milestones for the Options. The determination as to whether any of
the performance milestones for the Options have been attained shall be made by the Company’s Board
of Directors in its sole discretion, which determination shall be final, binding and conclusive on
all persons, including Consultant.
4. Ownership of Work Product. Consultant hereby assigns to the Company all right, title and
interest in and to any work product created by Consultant, or to which Consultant contributes,
pursuant to this Agreement (the “Work Product”), including all copyrights, trademarks and other
intellectual property rights contained therein. Consultant agrees to execute, at the Company’s
request and expense, all documents and other instruments necessary or desirable to confirm such
assignment. In the event that Consultant does not, for any reason, execute such documents within a
reasonable time of the Company’s request, Consultant hereby irrevocably appoints the Company as
Consultant’s attorney-in-fact for the purpose of executing such documents on Consultant’s behalf,
which appointment is coupled with an interest. If Consultant has any rights in the Work Product
which cannot be assigned, Consultant agrees to waive enforcement worldwide of such rights against
the Company. In the event that Consultant has any such rights, that cannot be assigned or waived,
Consultant hereby grants to the Company an exclusive, worldwide, irrevocable, perpetual license to
use, reproduce, distribute, create derivative works of, publicly perform and publicly display the
Work Product in any medium or format, whether now known of later developed.
5. Independent Contractor Relationship. Consultant’s relationship with the Company under this
Agreement is that of an independent contractor, and nothing in this Agreement is intended to, or
should be construed to, create a partnership, agency, joint venture or employment relationship.
Consultant will not be entitled to any of the benefits which the Company may make available to its
employees, including, but not limited to, group health or life insurance, profit-sharing or
retirement benefits. Consultant is not authorized to make any representation, contract or
commitment on behalf of the Company unless specifically requested or authorized in writing to do so
by a Company officer. Consultant is solely responsible for, and will file, on a timely basis, all
tax returns and payments required to be filed with, or made to, any federal, state or local tax
authority with respect to the performance of services and receipt of fees under this Agreement.
Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in
the course of performing services under this Agreement. No part of Consultant’s compensation will
be subject to withholding by the Company for the payment of any social security, federal, state or
any other employee payroll taxes. The Company will regularly report amounts paid to Consultant by
filing Form 1099-MISC with the Internal Revenue Service as required by law.
6. Confidential Information. Consultant agrees to hold the Company’s Confidential Information in
strict confidence and not to disclose such Confidential Information to any third parties.
“Confidential Information” as used in this Agreement shall mean all information disclosed by the
Company to Consultant that is not generally known in the Company’s trade or industry and shall
include, without limitation, (a) concepts and ideas relating to the development and distribution of
content in any medium or to the current, future and proposed products or
services of the Company or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions,
2.
know-how, software programs, and software source documents; (c) information regarding plans for
research, development, new service offerings or products, marketing and selling, business plans,
business forecasts, budgets and unpublished financial statements, licenses and distribution
arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions,
negotiations or agreements between the parties; (e) any information regarding the identities,
skills, duties and compensation of employees, contractors or other agents of the Company or its
subsidiaries or affiliates. Confidential Information also includes proprietary or confidential
information of any third party who may disclose such information to the Company or Consultant in
the course of the Company’s business. Upon request by the Company, Consultant agrees to promptly
deliver to the Company the original and any copies of such Confidential Information.
7. No Conflict of Interest. During the term of this Agreement, Consultant will not accept work,
enter into a contract, or accept an obligation from any third party, inconsistent or incompatible
with Consultant’s obligations under this Agreement. Consultant warrants that there is no other
contract or duty on her part inconsistent with this Agreement.
8. Term and Termination.
8.1 Term. The term of this Agreement begins on the Effective Date and continues until June
30, 2007, unless earlier terminated as provided in this Agreement or extended by agreement of the
Company and Consultant.
8.2 Termination by the Company. The Company may terminate this Agreement with or without
cause, at any time upon fifteen (15) days prior written notice to Consultant.
8.3 Termination by Consultant. Consultant may terminate this Agreement at any time upon
fifteen (15) days prior written notice to the Company’s Chief Executive Officer.
8.4 Survival. The rights and obligations contained in Sections 4 (“Ownership of Work
Product”) and 6 (“Confidential Information”) will survive any termination or expiration of this
Agreement.
9. Governing Law. This Agreement shall be governed in all respects by the laws of the United
States of America and by the laws of the State of California, as such laws are applied to
agreements entered into and to be performed entirely within California between California
residents.
10. Severability. Should any provisions of this Agreement be held by a court of law to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of
this Agreement shall not be affected or impaired thereby.
11. Waiver. The waiver by the Company of a breach of any provision of this Agreement by Consultant
shall not operate or be construed as a waiver of any other or subsequent breach by Consultant.
3.
12. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating
to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements
concerning such subject matter.
In Witness Whereof, the parties have executed this Agreement as of the date(s)
indicated below.
| IDM Pharma Inc. | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Pharm. D. | |||||||
By:
|
/s/ ▇▇▇▇ ▇▇▇▇ Romet-Lemonne | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇ ▇▇▇▇ Romet-Lemonne, M.D.
Chief Executive Officer |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Pharm. D. | |||||||
| Date: August 11, 2006 | Date: August 11, 2006 | |||||||
4.
Exhibit A
IDM PHARMA, INC.
2000 STOCK PLAN
2000 STOCK PLAN
Stock Option Agreement
(Incentive and Nonstatutory Stock Options)
(Incentive and Nonstatutory Stock Options)
Pursuant to your Stock Option Grant Notice (“Grant Notice”) and this Stock Option
Agreement, IDM Pharma, Inc. (the “Company”) has granted you an option under its 2000 Stock Plan
(the “Plan”) to purchase the number of shares of the Company’s Common Stock indicated in your Grant
Notice at the exercise price indicated in your Grant Notice. Defined terms not explicitly defined
in this Stock Option Agreement but defined in the Plan shall have the same definitions as in the
Plan.
The details of your option are as follows:
1. Vesting. Subject to the limitations contained herein, your option will vest as
provided in your Grant Notice, provided that vesting will cease upon the termination of your
Continuous Service.
2. Number of Shares and Exercise Price. The number of shares of Common Stock subject
to your option and your exercise price per share referenced in your Grant Notice may be adjusted
from time to time for Capitalization Adjustments, as provided in the Plan.
3. Exercise prior to Vesting (“Early Exercise”). If permitted in your Grant Notice
(i.e., the “Exercise Schedule” indicates that “Early Exercise” of your option is permitted) and
subject to the provisions of your option, you may elect at any time that is both (i) during the
period of your Continuous Service and (ii) during the term of your option, to exercise all or part
of your option, including the nonvested portion of your option; provided, however, that:
(a) a partial exercise of your option shall be deemed to cover first vested shares of Common
Stock and then the earliest vesting installment of unvested shares of Common Stock;
(b) any shares of Common Stock so purchased from installments that have not vested as of the
date of exercise shall be subject to the purchase option in favor of the Company as described in
the Company’s form of Early Exercise Stock Purchase Agreement;
(c) you shall enter into the Company’s form of Early Exercise Stock Purchase Agreement with a
vesting schedule that will result in the same vesting as if no early exercise had occurred; and
(d) if your option is an incentive stock option, then, as provided in the Plan, to the extent
that the aggregate Fair Market Value (determined at the time of grant) of the shares of Common
Stock with respect to which your option plus all other incentive stock options you hold are
exercisable for the first time by you during any calendar year (under all plans of the Company and
its Affiliates) exceeds one hundred thousand dollars ($100,000), your option(s) or portions thereof
that exceed such limit (according to the order in which they were granted) shall be treated as
nonstatutory stock options.
4. Method of Payment. Payment of the exercise price is due in full upon exercise of
all or any part of your option. You may elect to make payment of the exercise price in cash or by
check or in any other manner permitted by your Grant Notice, which may include one or more of the
following:
(a) In the Company’s sole discretion at the time your option is exercised and provided that at
the time of exercise the Common Stock is publicly traded and quoted regularly in The Wall Street
Journal, pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of Common Stock, results in either the receipt of cash (or check)
by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to
the Company from the sales proceeds.
(b) Provided that at the time of exercise the Common Stock is publicly traded and quoted
regularly in The Wall Street Journal, by delivery of already-owned shares of Common Stock either
that you have held for the period required to avoid a charge to the Company’s reported earnings
(generally six months) or that you did not acquire, directly or indirectly from the Company, that
are owned free and clear of any liens, claims, encumbrances or security interests, and that are
valued at Fair Market Value on the date of exercise. “Delivery” for these purposes, in the sole
discretion of the Company at the time you exercise your option, shall include delivery to the
Company of your attestation of ownership of such shares of Common Stock in a form approved by the
Company. Notwithstanding the foregoing, you may not exercise your option by tender to the Company
of Common Stock to the extent such tender would violate the provisions of any law, regulation or
agreement restricting the redemption of the Company’s stock.
(c) Pursuant to the following deferred payment alternative:
(i) Not less than one hundred percent (100%) of the aggregate exercise price, plus accrued
interest, shall be due four (4) years from date of exercise or, at the Company’s election, upon
termination of your Continuous Service.
(ii) Interest shall be compounded at least annually and shall be charged at the minimum rate
of interest necessary to avoid the treatment as interest, under any applicable provisions of the
Code, of any portion of any amounts other than amounts stated to be interest under the deferred
payment arrangement.
(iii) At any time that the Company is incorporated in Delaware, payment of the Common Stock’s
“par value,” as defined in the Delaware General Corporation Law, shall be made in cash and not by
deferred payment.
(iv) In order to elect the deferred payment alternative, you must, as a part of your written
notice of exercise, give notice of the election of this payment alternative and, in order to secure
the payment of the deferred exercise price to the Company hereunder, if the Company so requests,
you must tender to the Company a promissory note and a security agreement covering the purchased
shares of Common Stock, both in form and substance satisfactory to the Company, or such other or
additional documentation as the Company may request.
5. Whole Shares. You may exercise your option only for whole shares of Common Stock.
6.
6. Securities Law Compliance. Notwithstanding anything to the contrary contained
herein, you may not exercise your option unless the shares of Common Stock issuable upon such
exercise are then registered under the Securities Act or, if such shares of Common Stock are not
then so registered, the Company has determined that such exercise and issuance would be exempt from
the registration requirements of the Securities Act. The exercise of your option must also comply
with other applicable laws and regulations governing your option, and you may not exercise your
option if the Company determines that such exercise would not be in material compliance with such
laws and regulations.
7. Term. The term of your option commences on the Date of Grant and expires upon the
earliest of the following:
(a) three (3) months after the termination of your Continuous Service for any reason other
than your Disability or death, provided that if during any part of such three- (3-) month period
your option is not exercisable solely because of the condition set forth in the preceding paragraph
relating to “Securities Law Compliance,” your option shall not expire until the earlier of the
Expiration Date or until it shall have been exercisable for an aggregate period of three (3) months
after the termination of your Continuous Service;
(b) twelve (12) months after the termination of your Continuous Service due to your
Disability;
(c) eighteen (18) months after your death if you die either during your Continuous Service or
within three (3) months after your Continuous Service terminates;
(d) the Expiration Date indicated in your Grant Notice; or
(e) the tenth (10th) anniversary of the Date of Grant.
If your option is an incentive stock option, note that, to obtain the federal income tax
advantages associated with an “incentive stock option,” the Code requires that at all times
beginning on the date of grant of your option and ending on the day three (3) months before the
date of your option’s exercise, you must be an employee of the Company or an Affiliate, except in
the event of your death or Disability. The Company has provided for extended exercisability of
your option under certain circumstances for your benefit but cannot guarantee that your option will
necessarily be treated as an “incentive stock option” if you continue to provide services to the
Company or an Affiliate as a Consultant or Director after your employment terminates or if you
otherwise exercise your option more than three (3) months after the date your employment
terminates.
8. Exercise.
(a) You may exercise the vested portion of your option (and the unvested portion of your
option if your Grant Notice so permits) during its term by delivering a Notice of Exercise (in a
form designated by the Company) together with the exercise price to the Secretary of the Company,
or to such other person as the Company may designate, during regular business hours, together with
such additional documents as the Company may then require.
(b) By exercising your option you agree that, as a condition to any exercise of your option,
the Company may require you to enter into an arrangement providing for the payment by you to
the Company of any tax withholding obligation of the Company arising by reason of (1) the
exercise of
7.
your option, (2) the lapse of any substantial risk of forfeiture to which the shares of
Common Stock are subject at the time of exercise, or (3) the disposition of shares of Common Stock
acquired upon such exercise.
(c) If your option is an incentive stock option, by exercising your option you agree that you
will notify the Company in writing within fifteen (15) days after the date of any disposition of
any of the shares of the Common Stock issued upon exercise of your option that occurs within two
(2) years after the date of your option grant or within one (1) year after such shares of Common
Stock are transferred upon exercise of your option.
9. Transferability. Your option is not transferable, except by will or by the laws
of descent and distribution, and is exercisable during your life only by you. Notwithstanding the
foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you
may designate a third party who, in the event of your death, shall thereafter be entitled to
exercise your option.
10. Right of Repurchase. To the extent provided in the Company’s bylaws as amended
from time to time, the Company shall have the right to repurchase all or any part of the shares of
Common Stock you acquire pursuant to the exercise of your option.
11. Option not a Service Contract. Your option is not an employment or service
contract, and nothing in your option shall be deemed to create in any way whatsoever any obligation
on your part to continue in the employ of the Company or an Affiliate, or of the Company or an
Affiliate to continue your employment. In addition, nothing in your option shall obligate the
Company or an Affiliate, their respective shareholders, Boards of Directors, Officers or Employees
to continue any relationship that you might have as a Director or Consultant for the Company or an
Affiliate.
12. Withholding Obligations.
(a) At the time you exercise your option, in whole or in part, or at any time thereafter as
requested by the Company, you hereby authorize withholding from payroll and any other amounts
payable to you, and otherwise agree to make adequate provision for (including by means of a
“cashless exercise” pursuant to a program developed under Regulation T as promulgated by the
Federal Reserve Board to the extent permitted by the Company), any sums required to satisfy the
federal, state, local and foreign tax withholding obligations of the Company or an Affiliate, if
any, which arise in connection with your option.
(b) Upon your request and subject to approval by the Company, in its sole discretion, and
compliance with any applicable conditions or restrictions of law, the Company may withhold from
fully vested shares of Common Stock otherwise issuable to you upon the exercise of your option a
number of whole shares of Common Stock having a Fair Market Value, determined by the Company as of
the date of exercise, not in excess of the minimum amount of tax required to be withheld by law.
If the date of determination of any tax withholding obligation is deferred to a date later than the
date of exercise of your option, share withholding pursuant to the preceding sentence shall not be
permitted unless you make a proper and timely election under Section 83(b) of the Code, covering
the aggregate number of shares of Common Stock acquired upon such exercise with respect to which
such determination is otherwise deferred, to accelerate the determination of such tax withholding
obligation to the date of exercise of your option. Notwithstanding the filing of such election,
shares of Common Stock shall be withheld solely from fully vested shares of Common Stock determined
as of the date of
8.
exercise of your option that are otherwise issuable to you upon such exercise. Any adverse
consequences to you arising in connection with such share withholding procedure shall be your sole
responsibility.
(c) You may not exercise your option unless the tax withholding obligations of the Company
and/or any Affiliate are satisfied. Accordingly, you may not be able to exercise your option when
desired even though your option is vested, and the Company shall have no obligation to issue a
certificate for such shares of Common Stock or release such shares of Common Stock from any escrow
provided for herein.
13. Notices. Any notices provided for in your option or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by
mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company.
14. Governing Plan Document. Your option is subject to all the provisions of the
Plan, the provisions of which are hereby made a part of your option, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the provisions of your option
and those of the Plan, the provisions of the Plan shall control.
9.