<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1997
REGISTRATION NO. 333-32147
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CORIXA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 2836 91-1654387
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1124 COLUMBIA STREET, SUITE 200
SEATTLE, WA 98104
(206) 667-5711
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEVEN GILLIS, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CORIXA CORPORATION
1124 COLUMBIA STREET, SUITE 200
SEATTLE, WA 98104
(206) 667-5711
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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<S> <C>
WILLIAM W. ERICSON, ESQ. ALAN C. MENDELSON, ESQ.
KARA DIANE PALMER, ESQ. PATRICK A. POHLEN, ESQ.
JOHN W. ROBERTSON, ESQ. COOLEY GODWARD LLP
VENTURE LAW GROUP FIVE PALO ALTO SQUARE
4750 CARILLON POINT 3000 EL CAMINO REAL
KIRKLAND, WA 98033 PALO ALTO, CA 94306-2155
(425) 739-8700 (650) 843-5000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
------------------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE PAID
----------
<S> <C>
SEC registration fee.............................................. $ 13,417
NASD filing fee................................................... 4,928
Nasdaq listing fee................................................ 44,986
Printing and engraving expenses................................... 205,000
Legal fees and expenses........................................... 330,000
Accounting fees and expenses...................................... 160,000
Blue Sky qualification fees and expenses.......................... 5,000
Transfer Agent and Registrar fees................................. 10,500
Miscellaneous fees and expenses................................... 26,169
Total................................................... $ 800,000
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Restated Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach or alleged breach of their duty of care. In addition, as permitted by
Section 145 of the Delaware General Corporation Law, the Bylaws of the
Registrant provide that: (i) the Registrant is required to indemnify its
directors, to the fullest extent permitted by Delaware law, including in those
circumstances in which indemnification would otherwise be discretionary; (ii)
the Registrant may, in its discretion, indemnify officers, employees and agents
in those circumstances where indemnification is not required by law; (iii) the
Registrant is required to advance expenses, as incurred, to its directors in
connection with defending a proceeding (except that it is not required to
advance expenses to a person against whom the Registrant brings a claim for
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct, knowing violation of law or deriving an improper personal benefit);
(iv) the rights conferred in the Bylaws are not exclusive, and the Registrant is
authorized to enter into indemnification agreements with its directors,
executive officers and employees; and (v) the Registrant may not retroactively
amend the Bylaw provisions in a way that it adverse to such directors, executive
officers and employees.
The Registrant's policy is to enter into indemnification agreements with
each of its directors that provide the maximum indemnity allowed to directors
and executive officers by Section 145 of the Delaware General Corporation Law
and the Bylaws, as well as certain additional procedural protections. In
addition, such indemnity agreements provide that directors will be indemnified
to the fullest possible extent not prohibited by law against all expenses
(including attorney's fees) and settlement amounts paid or incurred by them in
any action or proceeding, including any derivative action by or in the right of
the Registrant, on account of their services as directors or executive officers
of the Registrant or as directors or officers of any other Company or enterprise
when they are serving in such capacities at the request of the Registrant. The
Company will not be obligated pursuant to the indemnity agreements to indemnify
or advance expenses to an indemnified party with respect to proceedings or
claims initiated by the indemnified party and not by way of defense, except with
respect to proceedings specifically authorized by the Board of Directors or
brought to enforce a right to indemnification under the indemnity agreement, the
Company's Bylaws or any statute or law. Under the agreements, the Company is not
obligated to indemnify the indemnified party (i) for any expenses incurred by
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<PAGE> 3
the indemnified party with respect to any proceeding instituted by the
indemnified party to enforce or interpret the agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
indemnified party in such proceeding was not made in good faith or was
frivolous; (ii) for any amounts paid in settlement of a proceeding unless the
Company consents to such settlement; (iii) with respect to any proceeding
brought by the Company against the indemnified party for willful misconduct,
unless a court determines that each of such claims was not made in good faith or
was frivolous; (iv) on account of any suit in which judgment is rendered against
the indemnified party for an accounting of profits made from the purchase or
sale by the indemnified party of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act and related laws; (v) on account
of the indemnified party's conduct which is finally adjudged to have been
knowingly fraudulent or deliberately dishonest, or to constitute willful
misconduct or a knowing violation of the law; (vi) an account of any conduct
from which the indemnified party derived an improper personal benefit; (vii) on
account of conduct the indemnified party believed to be contrary to the best
interests of the Company or its stockholders; (viii) on account of conduct that
constituted a breach of the indemnified party's duty of loyalty to the Company
or its stockholders; or (ix) if a final decision by a court having jurisdiction
in the matter shall determine that such indemnification is not lawful.
The indemnification provision in the Bylaws and the indemnification
agreements entered into between the Registrant and its directors, may be
sufficiently broad to permit indemnification of the Registrant's directors for
liabilities arising under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) Since September 8, 1994 (the date of incorporation of the Company), the
Company has issued and sold the following securities:
1. In September 1994, the Company issued and sold an aggregate of
2,338,048 shares of Common Stock to nine founders at a purchase price of
$0.017 per share.
2. On September 30, 1994, the Company issued 115,863 shares of Common
Stock in connection with the merger of Iasys Corporation with and into the
Company, in addition the Company repurchased 3,333 shares of common stock
from Iasys.
3. From September 30, 1994 to March 31, 1995, the Company issued and
sold, pursuant to a Series A Preferred Stock Purchase Agreement, an
aggregate of 4,646,131 shares of Series A Preferred Stock to 16 investors
at a purchase price of $3.30 per share.
4. From December 2, 1994 to January 4, 1995, the Company issued
warrants to purchase an aggregate of 413,191 shares of Common Stock at an
exercise price of $0.33 per share.
5. On December 9, 1994, January 1, 1996 and April 1, 1996, the Company
issued warrants to purchase an aggregate of 195,454 shares of Series A
Preferred Stock at exercise prices ranging from $3.30 to $6.60.
6. From January 1, 1995 to August 20, 1997, the Company issued 77,264
shares of Common Stock at values ranging from $0.33 per share to $8.25 per
share in connection with the entering into of certain collaboration
agreements and the reaching of certain milestones or other events pursuant
to such agreements.
7. On October 1, 1995, the Company transferred 5,871 shares of Common
Stock to the Seattle Biomedical Research Institute ("SBRI") and an
individual affiliated with SBRI, 2,537 of which represent a new issuance,
in exchange for certain intellectual property rights.
8. On May 10, 1996, the Company issued and sold, pursuant to a Series
B Preferred Stock Purchase Agreement, an aggregate of 505,050 shares of
Series B Preferred Stock to one investor at a per share price of $9.90.
9. On May 20, 1996 and May 31, 1996, the Company issued warrants to
purchase 38,585 shares of Common Stock at an exercise price of $6.60 per
share.
II-2
<PAGE> 4
10. On May 22, 1996, the Company issued a warrant to purchase 75,757
shares of Common Stock at an exercise price of $0.003 per share.
11. On December 23, 1996, the Company issued warrants to each holder
of Series B Preferred Stock of GenQuest to purchase up to an aggregate of
454,533 shares of the Company's Series B Preferred Stock at an exercise
price of $9.90 per share.
12. From February 1, 1996 through June 30, 1997, the Company issued
117,327 shares of Common Stock at a weighted average exercise price of
$0.43 per share to eleven employees, directors and consultants, pursuant to
the exercise of stock options granted under the 1994 Plan.
The sales and issuances of securities in the transaction described in
paragraphs 1-10 were deemed to be exempt from registration under the Securities
Act of 1933, as amended (the "Securities Act") in reliance on Section 4(2) of
the Securities Act or Regulation D promulgated thereunder as transactions by an
issuer not involving a public offering. The sales and issuances of securities in
the transaction described in paragraph 11 were deemed to be exempt from
registration under the Securities Act, by virtue of Rule 701 promulgated
thereunder in that they were offered and sold either pursuant to written
compensatory benefit plans or pursuant to a written contract relating to
compensation, as provided by Rule 701. The recipients of securities in each such
transaction represented their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to the share
certificates, options and warrants issued in such transactions. All recipients
had adequate access, through their employment or other relationships with the
Company, to information about the Company.
(b) There were no underwritten offerings employed in connection with any of
the transactions set forth in Item 15(a).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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<CAPTION>
NUMBER DESCRIPTION
-------- ----------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement
3.1* Amended and Restated Certificate of Incorporation of Registrant
3.2* Form of Amended and Restated Certificate of Incorporation of Registrant to
be filed with the Delaware Secretary of State
3.3* Bylaws of Registrant
4.1* Specimen Common Stock Certificate
5.1* Opinion of Venture Law Group, A Professional Corporation
10.1* 1994 Amended and Restated Stock Option and Restricted Stock Plan and forms
of stock purchase and stock option agreement
10.2* 1997 Directors' Stock Option Plan and form of stock option agreement
10.3* 1997 Employee Stock Purchase Plan and form of subscription agreement
10.4* Corixa Corporation 401(k) Savings & Retirement Plan
10.5* Form of Indemnification Agreement
10.6* Amended and Restated Investors' Rights Agreement dated as of May 10, 1996
between Registrant and certain holders of its capital stock
10.7* Lease Agreement dated October 28, 1994 and amended December 29, 1995 between
Registrant and Fred Hutchinson Cancer Research Center
10.8* Lease Agreement dated May 31, 1996 between Registrant and Health Science
Properties, Inc.
10.9+* Tuberculosis Collaboration and License Agreement between Registrant and
SmithKline Beecham Biologicals S.A. dated October 6, 1995
10.10+* Tuberculosis Collaboration and License Agreement Extension between
Registrant and SmithKline Beecham Biologicals S.A. dated February 25, 1997
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
-------- ----------------------------------------------------------------------------
<C> <S>
10.11+* Option Agreement between Registrant and SmithKline Beecham Biologicals S.A.
dated March 1, 1997
10.12+* Special Biologicals and Material Transfer Agreement between Registrant and
SmithKline Beecham Biologicals S.A. dated March 1, 1997
10.13+* Breast Cancer Collaboration and License Agreement between Registrant and
SmithKline Beecham Biologicals S.A. dated March 1, 1997
10.14+* Prostate Cancer Collaboration and License Agreement between Registrant and
SmithKline Beecham Biologicals S.A. dated March 1, 1997
10.15+* Research Collaboration and License Agreement between Registrant and CellPro,
Incorporated dated November 1, 1995
10.16+* First Amendment to Research Collaboration and License Agreement between
Registrant and CellPro, Incorporated dated January 1, 1997
10.17+* Research Agreement between Registrant and ZymoGenetics, Inc. dated September
30, 1996
10.18+* Licensing Agreement between Registrant and Dana-Farber Cancer Institute,
Inc. dated January 1, 1995
10.19+* License, Development and Supply Agreement between Registrant and Abbott
Laboratories dated July 24, 1997
10.20+* Option and License Agreement between Registrant and Pasteur Merieux
Connaught dated December 23, 1996
10.21* Amendment to Option and License Agreement between Registrant and Pasteur
Merieux Connaught dated March 28, 1997
10.22+* Amended and Restated License and Research Collaboration Agreement dated
December 23, 1996 between Registrant and GenQuest, Inc.
10.23+* Amendment No. 1 to the Amended and Restated License and Research
Collaboration Agreement dated January 1, 1997 by and between Registrant and
GenQuest, Inc.
10.24* Form of Amended and Restated Call Option Agreement dated December 23, 1996
by and among Registrant, GenQuest, Inc. and investors of GenQuest listed on
Exhibit A thereto
10.25+ Amended and Restated Administrative Services and Management Agreement dated
December 23, 1996 by and between Registrant and GenQuest, Inc.
10.26+* Amended and Restated Research Services and Intellectual Property Agreement
effective as of January 1, 1997 by and between Registrant and the Infectious
Disease Research Institute
10.27+* License Agreement dated November 20, 1995 by and between Registrant and
Health Research, Inc.
10.28* Amendment No. 1 to License Agreement dated January 1, 1997 by and between
Registrant and Health Research, Inc.
10.29+* License Agreement dated May 22, 1996 by and among Registrant, Southern
Research Institute and University of Alabama at Birmingham Research
Foundation
10.30+* Amendment No. 1 to License Agreement dated April 30, 1997 by and among
Registrant, Southern Research Institute and University of Alabama at
Birmingham Research Foundation
11.1* Statement of Computation of Pro Forma Net Loss Per Share
23.1* Consent of Ernst & Young LLP, Independent Auditors
23.2* Consent of KPMG Peat Marwick LLP, Independent Auditors
23.3* Consent of Venture Law Group, A Professional Corporation (included in
Exhibit 5.1)
24.1* Power of Attorney (see page II-6)
27.1* Financial Data Schedule
</TABLE>
- ---------------
* Previously filed.
+ Confidential treatment requested.
II-4
<PAGE> 6
(b) Financial Statement Schedule
Schedule II -- Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referenced in Item 14 of this Registration
Statement or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company has duly caused this Amendment to the Registration Statement on Form S-1
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Seattle, State of Washington, on this 30th day of September, 1997.
CORIXA CORPORATION
By: /s/ STEVEN GILLIS
------------------------------------
Steven Gillis
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed by the following
persons in the capacities and on the date indicated below:
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<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------- -------------------
<S> <C> <C>
/s/ STEVEN GILLIS President, Chief Executive September 30, 1997
---------------------------------------- Officer and Director
(Steven Gillis) (Principal Executive
Officer)
/s/ MICHELLE BURRIS* Vice President, Finance and September 30, 1997
---------------------------------------- Administration (Principal
(Michelle Burris) Financial and Accounting
Officer)
/s/ MARK MCDADE* Executive Vice President, September 30, 1997
---------------------------------------- Chief
(Mark McDade) Operating Officer and
Director
/s/ JOSEPH S. LACOB* Chairman of the Board of September 30, 1997
---------------------------------------- Directors
(Joseph S. Lacob)
/s/ ARNOLD L. ORONSKY* Director September 30, 1997
----------------------------------------
(Arnold L. Oronsky)
/s/ ANDREW E. SENYEI* Director September 30, 1997
----------------------------------------
(Andrew E. Senyei)
*By: /s/ STEVEN GILLIS
-------------------------------------
Steven Gillis, Attorney-in-Fact
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGES
-------- ------------------------------------------------------------------ ------------
<S> <C> <C>
1.1* Form of Underwriting Agreement....................................
3.1* Amended and Restated Certificate of Incorporation of Registrant...
3.2* Form of Amended and Restated Certificate of Incorporation of
Registrant to be filed with the Delaware Secretary of State.......
3.3* Bylaws of Registrant..............................................
4.1* Specimen Common Stock Certificate.................................
5.1* Opinion of Venture Law Group, A Professional Corporation..........
10.1* 1994 Amended and Restated Stock Option and Restricted Stock Plan
and forms of stock purchase and stock option agreement............
10.2* 1997 Directors' Stock Option Plan and form of stock option
agreement.........................................................
10.3* 1997 Employee Stock Purchase Plan and form of subscription
agreement.........................................................
10.4* Corixa Corporation 401(k) Savings & Retirement Plan...............
10.5* Form of Indemnification Agreement.................................
10.6* Amended and Restated Investors' Rights Agreement dated as of May
10, 1996 between Registrant and certain holders of its capital
stock.............................................................
10.7* Lease Agreement dated October 28, 1994 and amended December 29,
1995 between Registrant and Fred Hutchinson Cancer Research
Center............................................................
10.8* Lease Agreement dated May 31, 1996 between Registrant and Health
Science Properties, Inc...........................................
10.9+* Tuberculosis Collaboration and License Agreement between
Registrant and SmithKline Beecham Biologicals S.A. dated October
6, 1995...........................................................
10.10+* Tuberculosis Collaboration and License Agreement Extension between
Registrant and SmithKline Beecham Biologicals S.A. dated February
25, 1997..........................................................
10.11+* Option Agreement between Registrant and SmithKline Beecham
Biologicals S.A. dated March 1, 1997..............................
10.12+* Special Biologicals and Material Transfer Agreement between
Registrant and SmithKline Beecham Biologicals S.A. dated March 1,
1997..............................................................
10.13+* Breast Cancer Collaboration and License Agreement between
Registrant and SmithKline Beecham Biologicals S.A. dated March 1,
1997..............................................................
10.14+* Prostate Cancer Collaboration and License Agreement between
Registrant and SmithKline Beecham Biologicals S.A. dated March 1,
1997..............................................................
10.15+* Research Collaboration and License Agreement between Registrant
and CellPro, Incorporated dated November 1, 1995..................
10.16+* First Amendment to Research Collaboration and License Agreement
between Registrant and CellPro, Incorporated dated January 1,
1997..............................................................
10.17+* Research Agreement between Registrant and ZymoGenetics, Inc. dated
September 30, 1996................................................
10.18+* Licensing Agreement between Registrant and Dana-Farber Cancer
Institute, Inc. dated January 1, 1995.............................
10.19+* License, Development and Supply Agreement between Registrant and
Abbott Laboratories dated July 24, 1997...........................
10.20+* Option and License Agreement between Registrant and Pasteur
Merieux Connaught dated December 23, 1996.........................
10.21* Amendment to Option and License Agreement between Registrant and
Pasteur Merieux Connaught dated March 28, 1997....................
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGES
-------- ------------------------------------------------------------------ ------------
<S> <C> <C>
10.22+* Amended and Restated License and Research Collaboration Agreement
dated December 23, 1996 between Registrant and GenQuest, Inc. ....
10.23+* Amendment No. 1 to the Amended and Restated License and Research
Collaboration Agreement dated January 1, 1997 by and between
Registrant and GenQuest, Inc. ....................................
10.24* Form of Amended and Restated Call Option Agreement dated December
23, 1996 by and among Registrant, GenQuest, Inc. and investors of
GenQuest listed on Exhibit A thereto..............................
10.25+ Amended and Restated Administrative Services and Management
Agreement dated December 23, 1996 by and between Registrant and
GenQuest, Inc. ...................................................
10.26+* Amended and Restated Research Services and Intellectual Property
Agreement effective as of January 1, 1997 by and between
Registrant and the Infectious Disease Research Institute..........
10.27+* License Agreement dated November 20, 1995 by and between
Registrant and Health Research, Inc. .............................
10.28* Amendment No. 1 to License Agreement dated January 1, 1997 by and
between Registrant and Health Research, Inc. .....................
10.29+* License Agreement dated May 22, 1996 by and among Registrant,
Southern Research Institute and University of Alabama at
Birmingham Research Foundation....................................
10.30+* Amendment No. 1 to License Agreement dated April 30, 1997 by and
among Registrant, Southern Research Institute and University of
Alabama at Birmingham Research Foundation.........................
11.1* Statement of Computation of Pro Forma Net Loss Per Share..........
23.1* Consent of Ernst & Young LLP, Independent Auditors................
23.2* Consent of KPMG Peat Marwick LLP, Independent Auditors............
23.3* Consent of Venture Law Group, A Professional Corporation (included
in Exhibit 5.1)...................................................
24.1* Power of Attorney (see page II-6).................................
27.1* Financial Data Schedule...........................................
</TABLE>
- ---------------
* Previously filed.
+ Confidential treatment requested.
<PAGE> 1
EXHIBIT 10.25
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AND MANAGEMENT AGREEMENT
THIS ADMINISTRATIVE SERVICES AND MANAGEMENT AGREEMENT (this
"Agreement"), dated as of December 23, 1996, is entered into by and between
Corixa Corporation, a Delaware corporation ("Corixa"), and GenQuest, Inc., a
Delaware corporation ("GenQuest").
W I T N E S S E T H:
WHEREAS, Corixa and GenQuest are parties to that certain Amended and
Restated License and Research Collaboration Agreement dated as of the date
hereof (the "Collaboration Agreement"), as may be amended from time to time,
pursuant to which Corixa and GenQuest cross-licensed certain technology and
rights to each other, and GenQuest engaged Corixa to provide research services
with respect thereto;
WHEREAS, in connection with a multi-site scientific and corporate
partnering relationship between GenQuest and Corixa, GenQuest desires that
Corixa provide certain administrative and management services to GenQuest in
addition to the research services to be provided under the Collaboration
Agreement, and Corixa desires to provide such administrative and management
services;
WHEREAS, Corixa and GenQuest are parties to that certain Administrative
Services and Management Agreement dated December 23, 1996 (the "Prior Services
Agreement") pursuant to which Corixa and GenQuest specified the administrative
and management services to be provided by Corixa; and
WHEREAS, Corixa and GenQuest each desire to terminate the Prior
Services Agreement in its entirety and accept the rights and obligations
created pursuant hereto in lieu of the rights and obligations created under the
Prior Services Agreement.
NOW, THEREFORE, in consideration of the mutual covenants expressed
herein and for other good and valuable consideration; the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Definitions
1.1 Definitions. The following terms shall have the
following meanings as used in this Agreement:
(a) "Affiliate" means an entity that, directly
or indirectly, through one or more intermediaries, controls, is controlled by or
is under common control with GenQuest or Corixa. For the purposes of this
definition, control means the direct or indirect ownership of (i) at least fifty
percent (50%) or, if less than fifty percent (50%), the maximum percentage as
allowed by applicable law, of the outstanding voting securities of such entity
or (ii) at least fifty percent (50%) of the decision making authority of such
entity; provided, however, that neither Corixa nor GenQuest shall be deemed to
be an Affiliate of the other for purposes of this Agreement.
(b) "Person" shall mean any individual,
partnership, corporation, firm, association, unincorporated organization, joint
venture, trust or other entity.
(c) "Reimbursable Costs" shall mean the FTE
costs, fees and other expenses incurred, paid or accrued by Corixa in accordance
with the annual budget set forth on
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<PAGE> 2
Schedule A hereto. The budget for the 1997 calendar year shall bemutually agreed
upon by the Boards of Directors of Corixa and GenQuest prior to the date hereof
and shall be set forth in Schedule A.
1.2 Singular and Plural. Singular and plural forms, as
the case may be, of terms defined herein shall have correlative meanings.
2. Services to Be Provided
2.1 Services. GenQuest hereby engages Corixa to provide, or
arrange to provide, to GenQuest its general, administrative and management
services, including, without limitation, the services described generally below.
Corixa agrees to use its best efforts to provide, under the direction of the
Board of Directors of GenQuest, specific services within the following general
categories, at the times and in the manner in which Corixa deems necessary or
appropriate to effect the GenQuest business plan dated August 1996 (or
subsequent versions or modifications thereof approved by the GenQuest Board of
Directors) (the "GenQuest Business Plan"):
(a) advice and services with respect to accounting
and financial matters, marketing, government and public relations, industrial
relations, personnel administration, procurement, purchasing, inventory control,
corporate partnering, planning and investigation, management information
systems, administrative matters and insurance;
(b) treasury services, including, without limitation,
maintenance of books and records, bank accounts, preparation of budgets,
forecasts and financial statements, cashier, payment, payroll, credit and
collections and money management assistance;
(c) recordkeeping services, including accounting, tax
records, audits, stockholder, director and committee records and sales records;
(d) for the employees of GenQuest, services with
respect to the provision of certain employee benefits, including medical
(including vision) and dental insurance benefits, disability benefits, and
benefits under any life and accidental death and dismemberment plan,
occupational health services plan, and flexible spending accounts plan;
(e) services with respect to selection, recruiting,
supervision and evaluation of personnel;
(f) advice and services with respect to intellectual
property, regulatory, legal and tax matters, including, without limitation,
filings and hearings before foreign, federal, state and municipal agencies or
authorities; and
(g) such other advice and services as are reasonably
requested by GenQuest in order to implement the GenQuest Business Plan.
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2.2 Standard of Care. In providing services hereunder, Corixa
shall use, and GenQuest hereby agrees to accept in all respects, the same
standard of skill and care that Corixa uses in the course of undertaking similar
services for itself. To the extent reasonably possible, such services will be
substantially identical in nature and quality to the services currently provided
or otherwise obtained by Corixa on its own behalf.
2.3 Corixa Activities. GenQuest hereby acknowledges that
Corixa may have business interests, and engage in business activities, in
addition to those relating to GenQuest for its own account and for the account
of others, without having or incurring any obligation to offer any interest in
such businesses, activities or opportunities to GenQuest other than as provided
under the Collaboration Agreement. GenQuest shall not have any rights by virtue
of this Agreement or the relationship created hereby in any such business
interests, activities or opportunities. Corixa agrees to keep the GenQuest Board
of Directors duly informed of its activities under this Agreement.
2.4 Approval of Contracts and Commitments. Prior to making or
entering into any written commitment or contract on behalf of GenQuest that
involves (a) obligations of or payments by GenQuest in excess of $50,000 or (b)
the grant or in-license of material intellectual property rights, Corixa shall
first obtain the written approval of the Chairman of the GenQuest Board of
Directors.
2.5 Commitment of Resources. It is understood that GenQuest is
entering into this Agreement and the Collaboration Agreement in reliance upon
the commitment by Corixa to make available the services of a management team,
which team consists of Steve Gillis, Mark McDade, Steve Reed, Kate McKereghan,
Michelle Burris, Kenneth Grabstein, Greg Cox and Syamal Raychaudhuri to provide
and oversee appropriate services under this Agreement. Without limiting any
other provision of this Agreement, so long as the members of such management
team remain employed by Corixa, Corixa will use its best efforts to provide that
such individuals are available to perform the services to be provided by Corixa
hereunder.
2.6 Annual Plan and Budget. Not later than October 1 of each
year during the term of this Agreement, Corixa shall prepare and recommend to
the GenQuest Board of Directors an updated Annual Plan and Budget setting forth
the objectives to be obtained during the next calendar year, including the time
such objectives are expected to be met (provided, however, that such time frames
are not binding on either party), and the Reimbursable Costs for such services.
Such Annual Plan and Budget shall be consistent with the fulfillment of Corixa's
responsibilities hereunder. Upon approval of such proposed Annual Plan and
Budget by the GenQuest Board of Directors, with such changes as the Board of
Directors of GenQuest may direct and Corixa may approve, the same shall
constitute the Annual Plan and Budget for such calendar year for all purposes of
this Agreement and will be attached hereto as Schedule A, and the payment of the
Reimbursable Costs set forth therein to Corixa shall be guaranteed by the Board
of Directors of GenQuest.
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2.7 Employee Incentives. Corixa will use its reasonable best
efforts to structure the compensation paid to Corixa employees who work
primarily on GenQuest matters in such a manner that incentivizes such employees
to meet the management goals and objectives of GenQuest by utilizing such goals
and objectives to assess employee performance to the same extent as Corixa
utilizes management goals and objectives of Corixa to assess the performance of
employees who work solely for Corixa. Corixa shall include in its performance
goals, for purposes of its employee stock grant and bonus programs, reasonable
performance goals of GenQuest and shall reasonably reflect the attainment or
nonattainment of such goals in determining stock grants and bonus levels for
Corixa employees.
3. Payment of Reimbursable Costs and Fees
3.1 FTE Reimbursement. During the term of this Agreement,
GenQuest shall reimburse Corixa for each full-time equivalent ("FTE") as set
forth in Schedule A. The amount of such Reimbursable Costs shall be as set forth
on Schedule A. It is understood that, except as provided in Section 3.2 below
and Exhibit A hereto, the Reimbursable Costs to be paid under this Section 3.1
include all costs to be reimbursed to Corixa with respect to Corixa's
performance of services pursuant to this Agreement, and such payments shall be
used solely for the purposes of performing such services.
3.2 Management Fee. In addition to the Reimbursable Costs set
forth in Section 3.1 above, GenQuest shall pay to Corixa an annual management
fee, which fee shall be equal to $ 200,000 for the 1997 calendar year. The
amount of such management fee for subsequent calendar years shall change on an
annual basis and shall be agreed upon by Corixa and the Board of Directors of
GenQuest by no later than October 1 of the preceding year. In the event this
Agreement is terminated prior to the end of any calendar year, such management
fee shall be prorated for the number of days that Corixa actually performs
services, based on three hundred sixty-five (365) days per year.
3.3 Payment. GenQuest shall pay to Corixa quarterly in advance
the amounts provided for in Sections 3.1 and 3.2 above not later than January 1,
April 1, July 1 and October 1 of each year during the term of this Agreement.
4. Representations and Warranties
4.1 Representations and Warranties of Corixa. Corixa
represents and warrants to GenQuest as follows:
(a) Corixa is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with
corporate powers adequate for executing and delivering, and performing its
obligations under, this Agreement;
(b) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action on the
part of Corixa;
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(c) this Agreement has been duly executed and
delivered by Corixa and is a legal, valid and binding obligation of Corixa,
enforceable against Corixa in accordance with its terms; and
(d) the execution, delivery and performance of this
Agreement do not conflict with or contravene any provision of the charter
documents or Bylaws of Corixa or any agreement, document, instrument, indenture
or other obligation of Corixa.
4.2 Representations and Warranties of GenQuest. GenQuest
represents and warrants to Corixa as follows:
(a) GenQuest is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with
corporate powers adequate for executing and delivering, and performing its
obligations under, this Agreement;
(b) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate action on the
part of GenQuest;
(c) this Agreement has been duly executed and
delivered by GenQuest and is a legal, valid and binding obligation of GenQuest,
enforceable against GenQuest in accordance with its terms; and
(d) the execution, delivery and performance of this
Agreement do not conflict with or contravene any provision of the charter
documents or Bylaws of GenQuest or any agreement, document, instrument,
indenture or other obligation of GenQuest.
5. Term and Termination. This Agreement shall terminate upon the
earlier to occur of (a) at the option of either party, the date that is ninety
(90) days after the date of the Call Option Expiration (as such term is defined
in that certain Call Option Agreement dated as of December 23, 1976 hereof by
and among GenQuest, Corixa and certain investors in GenQuest listed on the
execution pages thereof, as amended and restated from time to time (the "Call
Agreement"), (b) the date that is ninety (90) days after the Call Option
Purchase Date or the Put Option Purchase Date (as such term is defined in the
Call Agreement), as applicable, or (c) at the option of either party, upon the
termination of the Collaboration Agreement.
6. Transfer of Resources. In the event that neither the Call Option nor
the Put Option (as defined in the Put/Call Agreement) is exercised, Corixa will
use its reasonable best efforts as requested by GenQuest to (a) insure that
those individuals who have worked primarily on GenQuest matters become employees
of GenQuest; provided, however, that Corixa will not be required to incur a
material economic disadvantage or initiate any legal action pursuant to this
subsection 6(a), and (b) transfer ownership to GenQuest of that equipment this
is listed on Schedule B attached hereto or that Corixa is separately reimbursed
for by GenQuest under Section 8.2 of the Collaboration Agreement; provided,
however, that GenQuest and Corixa shall agree from time to time, but not less
than once a year, on what equipment shall be included in Schedule B. Schedule B
shall be amended from time to time as agreed by Corixa and GenQuest.
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7. Confidentiality Agreements. Corixa and GenQuest hereby agree that
they will have each of their respective employees, consultants and officers who
have access to confidential or proprietary information of the other party
execute a confidential information and non-disclosure agreement in form and
substance reasonably satisfactory to such other party.
8. Independent Contractor. All debts and liabilities to and contracts
or agreements with any person or entity incurred or entered into in the name of
or on behalf of GenQuest by Corixa in the management or performance of the
services hereunder in accordance with this Agreement shall be the debt and
liability of and be binding upon GenQuest. CORIXA SHALL NOT BE LIABLE TO ANY
PERSON OR ORGANIZATION FOR ANY DEBT, LIABILITY OR OBLIGATION OF GENQUEST
INCURRED OR CREATED PURSUANT TO THIS AGREEMENT OR BY REASON OF CORIXA'S
MANAGEMENT, DIRECTION OR PERFORMANCE OF THE SERVICES HEREUNDER UNLESS CORIXA, BY
WRITTEN AGREEMENT, EXPRESSLY ASSUMES OR GUARANTEES ANY SUCH LIABILITY. CORIXA
SHALL NOT BE REQUIRED, UNDER ANY CIRCUMSTANCES, TO GUARANTEE OR ASSUME ANY
OBLIGATION OR LIABILITY OF GENQUEST AS A RESULT OF THIS AGREEMENT. THE BOARD OF
DIRECTORS OF GENQUEST SHALL BE DEEMED TO CONTROL ALL ASPECTS OF THE MANNER IN
WHICH GENQUEST'S BUSINESS IS CONDUCTED. CORIXA SHALL NOT BE LIABLE BY VIRTUE OF
THE PERFORMANCE OF ITS DUTIES HEREUNDER FOR ANY BREACH OF ANY LICENSING OR OTHER
AGREEMENT BETWEEN GENQUEST AND ANY OTHER PARTY, OR FOR ANY LIABILITY FOR ANY
TRADEMARK INFRINGEMENT, UNFAIR COMPETITION, PATENT INFRINGEMENT OR OTHER
VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANOTHER ENTITY AS A RESULT OF
THE MANNER IN WHICH GENQUEST'S BUSINESS IS CONDUCTED, EXCEPT TO THE EXTENT SUCH
VIOLATION IS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CORIXA.
9. Subcontractors. Subject to GenQuest's written consent, which consent
shall not be unreasonably withheld, Corixa may engage any other Person to
perform all or any portion of Corixa's duties hereunder; provided, however, that
any such other Person shall be bound by the terms of this Agreement; provided
further, however, that no such consent shall be required for the engagement by
Corixa of any other Person to perform such duties if Corixa customarily engages
others to perform similar duties for itself.
10. Indemnification
10.1 Indemnification of Corixa. GenQuest shall indemnify each
of Corixa, its successors and assigns, and the directors, officers, employees,
agents, stockholders and counsel thereof (the "Corixa Indemnitees"), pay on
demand and protect, defend, save and hold each Corixa Indemnitee harmless from
and against, on an after-tax basis, any and all liabilities, damages, losses,
settlements, claims, actions, suits, penalties, fines, costs or expenses
(including, without limitation, reasonable attorneys' and accountants' fees)
(any of the foregoing, a "Claim") incurred by or asserted by a third party
against any Corixa Indemnitee of whatever kind or
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nature, including, without limitation, any claim or liability based upon
negligence, warranty, strict liability, violation of government regulation or
infringement of patent, copyright, trademark, trade secret or other proprietary
rights, arising from or occurring as a result of services provided by Corixa to
GenQuest under this Agreement, including, without limitation, a breach thereof
by GenQuest, or the performance by Corixa of its obligations hereunder, except
claims based upon the gross negligence or willful misconduct of Corixa in
performing the services hereunder in accordance with this Agreement. Corixa
shall promptly notify GenQuest of any Claim, upon becoming aware thereof, and
permit GenQuest at GenQuest's cost to defend such claim or suit and shall
cooperate in the defense thereof. Neither Corixa nor GenQuest shall enter into,
or permit, any settlement of any such suit without the express written consent
of the other party. Corixa may, at its option and expense, have its own counsel
participate in any proceeding that is under the direction of GenQuest and will
cooperate with GenQuest and its insurer in the disposition of any such matter.
The termination of a proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that an action or inaction involves bad faith, gross negligence or
willful misconduct.
10.2 Indemnification of GenQuest. Corixa shall indemnify each
of GenQuest, its successors and assigns, and the directors, officers, employees,
agents, stockholders and counsel thereof (the "GenQuest Indemnitees"), pay on
demand and protect, defend, save and hold each GenQuest Indemnitee harmless from
and against, on an after-tax basis, any and all Claims incurred by or asserted
against any GenQuest Indemnitee arising from or occurring as a result of the
gross negligence or willful misconduct of Corixa in performing the services to
be provided by Corixa to GenQuest in accordance with this Agreement. GenQuest
shall promptly notify Corixa of any Claim, upon becoming aware thereof, and
permit Corixa at Corixa's cost to defend such claim or suit and shall cooperate
in the defense thereof. Neither GenQuest nor Corixa shall enter into, or permit,
any settlement or any such suit without the express written consent of the other
party. GenQuest may, at its option and expense, have its own counsel participate
in any proceeding that is under the direction of Corixa and will cooperate with
Corixa and its insurer in the disposition of any such matter. The termination of
a proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that an action or inaction involves bad faith, gross negligence or willful
misconduct.
11. No Implied Waivers; Rights Cumulative. No failure on the part of
Corixa or GenQuest to exercise and no delay in exercising any right, power,
remedy or privilege under this Agreement, or provided by statute or at law or in
equity or otherwise, including, without limitation, the right or power to
terminate this Agreement, shall impair, prejudice or constitute a waiver of any
such right, power, remedy or privilege or be construed as a waiver of any breach
of this Agreement or as an acquiescence therein, nor shall any single or partial
exercise of any such right, power, remedy or privilege preclude any other or
further exercise thereof or the exercise of any other right, power, remedy or
privilege.
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12. Force Majeure. Each party shall be excused for any failure or delay
in performing any of its obligations under this Agreement, other than the
obligations of GenQuest to make payments to Corixa pursuant to Section 3 hereof,
if such failure or delay is occasioned by government action, war, fire,
earthquake, explosion, flood, strike, lockout, embargo, act of God, or any other
similar cause beyond the control of the defaulting party, provided that the
party claiming force majeure has exerted all reasonable efforts to avoid or
remedy such force majeure; provided further, however, that in no event shall a
party be required to settle any labor dispute or disturbance.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered (a) personally, (b) by facsimile
transmission (receipt verified), (c) by registered or certified mail (return
receipt requested), postage prepaid, or (d) sent by express courier service
(receipt verified), to the party to be notified at the address indicated for
such party specified below (or at such other address for such party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
If to Corixa, addressed to:
Corixa Corporation
1124 Columbia Street, Suite 464
Seattle, WA 98104
Attention: Chief Operating Officer
Corporate Counsel
Telephone: (206) 667-5711
Facsimile: (206) 667-5715
If to GenQuest, addressed to:
GenQuest, Inc.
c/o Frazier & Company
601 Union Street
Two Union Square, Suite 2110
Seattle, WA 98101
Attention: Alan Frazier
Telephone: (206) 621-7200
Facsimile: (206) 621-1848
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With copies to:
Venture Law Group
4750 Carillon Point
Kirkland, WA 98033
Attention: William W. Ericson
Telephone: (206) 739-8700
Facsimile: (206) 739-8750
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Kenneth Clark
Telephone: (415) 493-9300
Facsimile: (415) 493-6811
Rosner Bresler Goodman & Bucholz
521 5th Ave.
New York, NY 10175
Attention: Andrew J. Goodman
Telephone: (212) 661-2150
Facsimile: (212) 949-6131
14. Further Assurances. Each of Corixa and GenQuest agrees to duly
execute and deliver, or cause to be duly executed and delivered, such further
instruments and do and cause to be done such further acts and things, including,
without limitation, the filing of such additional assignments, agreements,
documents and instruments, that may be necessary or as the other party hereto
may at any time and from time to time reasonably request in connection with this
Agreement or to carry out more effectually the provisions and purposes of, or to
better assure and confirm unto such other party its rights and remedies under,
this Agreement.
15. Successors and Assigns. The terms and provisions of this Agreement
shall inure to the benefit of, and be binding upon, Corixa, GenQuest, and their
respective successors and assigns; provided, however, that neither Corixa nor
GenQuest may assign or otherwise transfer any of its rights and interests nor
delegate any of its respective obligations hereunder, including, without
limitation, pursuant to a merger or consolidation, without the written consent
of the other party hereto, which consent shall not be unreasonably withheld;
provided further, however, that Corixa may assign its rights and interests and
delegate its obligations hereunder, effective upon written notice thereof, to
any Person that acquires all or substantially all of the assets of Corixa or
that is the surviving Person in a merger or consolidation with Corixa, if (a)
such Person assumes all of the obligations of Corixa hereunder and (b) if such
Person is a solvent corporation or other entity organized and existing under the
laws of the U.S. or any state thereof and such Person shall have, immediately
after giving effect to such assignment or transfer, a tangible net worth
(determined in accordance with generally accepted accounting principles then in
effect) at least
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equal to the tangible net worth (as so determined) of Corixa immediately prior
thereto. Any attempt to assign or delegate any portion of this Agreement in
violation of this Section 15 shall be null and void. Subject to the foregoing,
any reference to Corixa or GenQuest hereunder shall be deemed to include the
successors thereto and assigns thereof.
16. Amendments. No amendment, modification, waiver, termination or
discharge of any provision of this Agreement, nor consent to any departure by
Corixa or GenQuest therefrom, shall in any event be effective unless the same
shall be in writing specifically identifying this Agreement and the provision
intended to be amended, modified, waived, terminated or discharged and signed by
Corixa and GenQuest, and each such amendment, modification, waiver, termination
or discharge shall be effective only in the specific instance and for the
specific purpose for which given. No provision of this Agreement shall be
varied, contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Corixa and GenQuest.
17. Dispute Resolution. No arbitration with reference to this Agreement
shall arise until the procedures set forth in this Section 17 have been
satisfied. In the event of any dispute with respect to the interpretation of any
provision of this Agreement or with respect to the performance of either party
under this Agreement, either party may at any time provide the other party
written notice specifying the terms of such disagreement in reasonable detail.
As soon as practicable after receipt of such notice, the Chairman of the Board
of Directors of GenQuest and the Chairman of the Board of Directors of Corixa
shall meet at a mutually agreed upon time and location for the purpose of
resolving such disagreement. They shall engage in discussions and/or
negotiations for a period of up to one hundred twenty (120) days in an effort to
resolve the disagreement or negotiate an interpretation or revision of the
applicable portion of this Agreement that is mutually agreeable to both parties,
without the necessity of formal procedures relating thereto. During the course
of such discussion and/or negotiation, the parties shall reasonably cooperate
and provide information that is not materially confidential in order so that
each of the parties may be fully informed with respect to the issues in dispute.
The commencement of JAMS (as defined below) dispute resolution
procedures to resolve such disagreement may occur only after the earlier of: (a)
the mutual agreement of the Chairman of the Board of Directors of GenQuest and
the Chairman of the Board of Directors of Corixa that resolution of such
disagreement through continued negotiation is not likely to occur, or (b)
following expiration of the one hundred twenty (120) day negotiation period.
Thereafter, either party may seek to resolve such disagreement by initiating an
Alternative Dispute Resolution ("ADR") in which the Judicial Arbitration and
Mediation Services ("JAMS"), Seattle, Washington shall select the arbitrator
("Arbitrator") as provided herein. If JAMS is not in existence at the time of
such dispute the American Arbitration Association, Seattle, Washington shall be
substituted.
(i) Selection of Arbitrator. An ADR shall be initiated by a
party by sending written notice thereof to the other party and JAMS, which
notice shall state the issues to be resolved. Within ten (10) business days
after receipt of such notice, the other party may, by
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sending written notice to the initiating party and JAMS, add issues to be
resolved. Within twenty (20) business days after the date of the original ADR
notice, JAMS shall nominate to the parties at least five (5) qualified nominees
from JAMS' panel. The parties shall have five (5) business days after the
receipt of such nominations to agree on a Arbitrator or, failing to agree, to
rank-order their preferences with the most preferred being given the lowest
number, and mail the rank-order to JAMS. JAMS shall notify the parties of their
selection. If all nominees are unacceptable to a party, the procedure shall be
repeated and, if the parties cannot select an Arbitrator the second time, JAMS
shall select the Arbitrator.
(ii) Arbitrator With Special Expertise. In the event of a
dispute between the parties relating to the amount of other consideration
payable under this Agreement, then, in addition to the procedure set forth in
the previous subsection, the Arbitrator shall (A) be a partner or full member of
an internationally recognized certified public accounting firm that is not an
auditing firm for either party and has not provided material services to either
party during the last two (2) year period prior to the date of ADR initiation
and (B) have a meaningful biotechnology science and industry background.
(iii) ADR Hearing. The Arbitrator shall hold a hearing to
resolve the issues within one hundred twenty (120) business days after
selection. The location of the hearing shall be Seattle, Washington. Each party
may be represented by counsel. The Arbitrator shall have sole discretion
regarding the admissibility of evidence and conduct of the hearing. At least
five (5) business days prior to the hearing, each party shall submit to the
other party and the Arbitrator a copy of all exhibits on which such party
intends to rely at the hearing, a pre-hearing brief (up to thirty (30) pages)
and a proposed disposition of the dispute (up to five (5) pages). The proposed
disposition shall be limited to proposed rulings and remedies on each issue, and
shall contain no argument on or analysis of the facts or issues; provided,
however, that the parties shall not present proposed monetary remedies. Within
five (5) business days after close of the hearing, each party may submit a
post-hearing brief (up to five (5) pages) to the Arbitrator.
(iv) ADR Ruling: Fees and Expenses. The Arbitrator shall
render a disposition on the proposed rulings as expeditiously as possible after
the hearing, but not later than fifteen (15) business days after the conclusion
of the hearing. The Arbitrator shall rule on each issue and shall adopt in its
entirety the proposed ruling of one of the parties on each issue. In the
circumstance where the Arbitrator rules for a party on a claim in the form of a
claim for monetary damages, the parties shall then submit a proposed remedy
within ten (10) days of notice of the ruling. The proposed remedy may be
accompanied by a brief in support of the remedy not to exceed five (5) pages.
The Arbitrator shall rule on and adopt one of the proposed remedies within ten
(10) days of their submission. The Arbitrator's disposition shall be final and
not appealable, except that either party shall have the right to appeal such
disposition on the basis it was affected by fraud or bad faith in connection
with the ADR proceedings. The reasonable fees and expenses of the Arbitrator, as
well as the standard charges of JAMS for its assistance, shall be borne by the
parties as determined by the Arbitrator, who shall, in making such
determination, take into account the equities and disposition of the
proceedings. A judgment on
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the Arbitrator's disposition may be entered in and enforced by any court having
jurisdiction over the parties.
(v) JAMS Rules. Except as otherwise provided in this Section
16, JAMS Rules shall be used in connection with the ADR.
(vi) Notwithstanding anything to the contrary in this Section
17, either Corixa or GenQuest may, on good cause shown in the event such party
reasonably believes that it otherwise will suffer irreparable injury, seek a
temporary restraining order and/or preliminary injuction from a court of
competent jurisdiction, to be effective pending the institution of the
arbitration process and the deliberation and award of the Arbitrator.
18. Governing Law. This Agreement shall in all respects, including all
matters of construction, validity and performance, be governed by, and construed
and enforced in accordance with, the laws of the state of Washington applicable
to contracts entered into in that state between citizens of that state and to be
performed wholly within that state without reference to any rules governing
conflicts of laws.
19. Severability. If any provision hereof should be held invalid,
illegal or unenforceable in any respect in any jurisdiction, then, to the
fullest extent permitted by law, (a) all other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (b) such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, Corixa and GenQuest
hereby waive any provision of law that would render any provision hereof
prohibited or unenforceable in any respect.
20. Headings. Headings used herein are for convenience only and shall
not in any way affect the construction of, or be taken into consideration in
interpreting, this Agreement.
21. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, and all of which counterparts,
taken together, shall constitute one and the same instrument.
22. Interest on Unpaid Amounts. Any amounts due to Corixa hereunder
that are not paid as and when due shall bear interest at the rate of the lower
of [***] percent ([***]%) per annum or the prime rate of interest as determined
by the Commerce Bank of Washington or its successors as of the date any such
amounts become due [***] percent ([***]%) per annum. Such interest shall be
calculated on the basis of the actual number of days lapsed over a three hundred
sixty-five (365) day year, and shall be in addition to, and not in lieu of,
other remedies afforded Corixa hereunder, at law or in equity for breach of this
Agreement.
23. Entire Agreement. This Agreement, together with Schedule A,
Schedule B and Exhibit A hereto, constitutes, on and as of the date hereof, the
entire agreement of Corixa and
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GenQuest with respect to the subject matter hereof, and all prior or
contemporaneous understandings or agreements, whether written or oral, between
Corixa and GenQuest with respect to such subject matter are hereby superseded in
their entireties.
24. WAIVER OF CONFLICTS. Each party to this Agreement acknowledges
that Venture Law Group ("VLG") is general corporate counsel for Corixa and has
represented Corixa with respect to the negotiation of, and the transactions
contemplated by, this Agreement, the Collaboration Agreement and the Put/Call
Agreement, and that VLG has in the past performed and may continue to perform
legal services for certain investors in GenQuest ("Investors") and for GenQuest
in matters unrelated to the transactions described in this Agreement, including
the representation of certain Investors in venture capital financings and other
matters and the representation of GenQuest in certain transactions and general
corporate matters. In addition, VLG has been requested to, and has agreed to,
provide a legal opinion with respect to certain legal matters regarding the
transactions contemplated by GenQuest's Series B Preferred Stock Purchase
Agreement dated as of the date hereof (the "Opinion"). Accordingly, each party
to this Agreement hereby (a) acknowledges that they have had an opportunity to
ask for information relevant to this disclosure, and (b) gives its informed
written consent to (i) VLG's general corporate representation of Corixa, (ii)
VLG's representation of certain of the Investors in such unrelated matters,
(iii) VLG's representation of GenQuest with respect to the negotiation of, and
the transactions contemplated by, GenQuest's Series B Preferred Stock Purchase
Agreement dated as of the date hereof, GenQuest's Amended and Restated
Investors' Rights Agreement, dated as of the date hereof, GenQuest's Second
Amended and Restated Certificate of Incorporation and the Amendment and
Termination Agreement dated as of the date hereof, (iv) VLG's provision of the
Opinion and the representation of GenQuest in certain unrelated transactions
and general corporate matters, (v) VLG's representation of Corixa with respect
to the negotiation of, and the transactions contemplated by, this Agreement,
the Collaboration Agreement, the Put/Call Agreement and GenQuest's Amended and
Restated Voting Agreement dated as of the date hereof, and (vi) VLG's provision
of services for GenQuest through GenQuest's relationship with Corixa, as set
forth in this Agreement, the Collaboration Agreement and the Put/Call
Agreement. Each party to this Agreement further acknowledges that it has had
the opportunity to confer with legal counsel of its choice in connection with
the transactions contemplated hereby.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have caused this Administrative
Services and Management Agreement to be duly executed and delivered as of the
date first above written.
CORIXA CORPORATION
/s/ MARK McDADE
By:______________________________________
Name:____________________________________
Title:___________________________________
GENQUEST, INC.
/s/ ALAN FRAZIER
By:______________________________________
Name:____________________________________
Title:___________________________________
-14-
<PAGE> 15
Schedule A
1997 REIMBURSABLE COSTS
<TABLE>
<CAPTION>
Administrative position Number Estd Salary/FTE Hire Date
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Business Development 1 $100,000 January 1, 1997
Administrative Support 1 $ 25,000 January 1, 1997
Total 2 $125,000
- ----- --- --------
</TABLE>
Total Reimbursable Costs are to be calculated as follows:
(a) once hired, Corixa's fringe benefits rate, 23%, is added to actual
salary to derive salary and fringe benefits rate;
(b) the above salary plus fringe rate is then multiplied by Corixa's G&A
overhead rate, which is 18.4% for 1997. This number does not include
any R&D overhead absorption;
(c) using the above calculation method, and assuming the above heads are
hired in a reasonable fashion over the first quarter of 1997, total
estimated Reimbursable Costs are $182,040. The estimated total expense
may vary due to changes in salary, but the fringe benefits and overhead
rates applied will not change for 1997.
(d) for the Business Development person, reasonable travel and other
out-of-pocket expenses will be reimbursed by GenQuest on a quarterly
basis.
Payment schedule:
(a) Payments are due the first day of each calendar year quarter,
specifically January 1, April 1, July 1 and October 1.
(b) Based on the above, estimated quarterly payments for the 1997 calendar
year are each $45,510, excluding reimbursable travel and other
out-of-pocket expenses. Further, actual salary rates will be used and
may require adjustment to these payments.
(c) Invoices for Reimbursable Costs and other reimbursable travel and
out-of-pocket expenses will be submitted to GenQuest quarterly.
<PAGE> 16
Schedule B
EQUIPMENT
Not applicable
<PAGE> 17
EXHIBIT A
FRAZIER HEALTHCARE II, L.P.
Two Union Square
601 Union Street, Suite 2110
Seattle, WA 98101
(206) 621-7200
December 23, 1996
Mark McDade
Corixa Corporation
1124 Columbia Street, Suite 464
Seattle, WA 98104
Dear Mark:
This will confirm, on behalf of the Purchase of the Series B Preferred Stock of
GenQuest, Inc., that GenQuest and Corixa are authorized to close, as of today,
on the purchase and sale of GenQuest Series B Preferred Stock under the Series
B Preferred Stock Purchase Agreement between GenQuest and the Purchasers,
including the related Amended and Restated License and Collaboration Agreement,
Administrative Services and Management Agreement, Call Option Agreement and
other instruments and agreements contemplated therein.
However, this authorization is based upon the agreement of Corixa, as evidenced
by its signature below, to the Purchasers' understanding of Sections 2.5, 3.1
and 3.2 of the Administrative Services and Management Agreement between
GenQuest and Corixa (the "Services Agreement"). Specifically, it is the
Purchasers' understanding that the $200,000 per year management fee under
Section 3.2 of the Services Agreement covers any services provided by members
of the Corixa management team named in Section 2.5 (and their successors, if any
such team members leave Corixa), so that no separate FTE charge shall be made
for the services of those individuals under Section 3.1. However, it is
understood that reasonable travel expenses of such Corixa management team
incurred in conducting GenQuest business under the Services Agreement would be
separately reimbursed by GenQuest.
If the foregoing reflects your understanding, please sign below on behalf of
Corixa and return the countersigned copy to me.
Very truly yours,
/s/ ALAN FRAZIER
- ---------------------------
Alan Frazier
Frazier Healthcare II, L.P.
Agreed and Accepted,
CORIXA CORPORATION
By: /s/ MARK McDADE
------------------------
Mark McDade
Vice President
cc: William Ericson, Esq.
Kenneth A. Clark, Esq.
