Form 10-Q CytomX Therapeutics, For: Mar 31

[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10).  Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.

Exhibit 10.2

AMENDMENT NO 2

TO

COLLABORATION AND LICENSE AGREEMENT

This Amendment Number 2 (the “Amendment No 2”), effective as of February 22, 2021 (the “Amendment No 2 Effective Date”) amends that certain Collaboration and License Agreement entered into as of May 23, 2014 (the “Collaboration Agreement”) by and between CYTOMX THERAPEUTICS, INC.,  a corporation organized under the laws of the State of Delaware, having its principal place of business at 151 Oyster Point Blvd., Suite 400, South San Francisco, CA, 94080 (“CytomX”), and BRISTOL-MYERS SQUIBB COMPANY, a Delaware corporation headquartered at 345 Park Avenue, New York, New York, USA 10154 (“BMS”), as amended by Amendment Number 1 to Extend Collaboration and License Agreement, dated as of March 17, 2017.  

 

RECITALS

Whereas, CytomX and BMS desire to extend their existing collaboration for the purpose of discovery and preclinical development of Compounds suitable for development for human therapeutic uses, with the objective of identifying one or more Compounds for BMS to advance into human clinical trials, in accordance with the terms and conditions set forth in the Collaboration Agreement.

 

Now Therefore, in consideration of the foregoing premises and the mutual promises, covenants and conditions contained in this Amendment No 2, the Parties agree to amend the Collaboration Agreement as follows.

 

3.2Research Term.  The Preclinical Development Program with respect to each Initial Collaboration Target and Additional Target will be carried out during the two (2) year period following (x) the Effective Date, with respect to the Initial Collaboration Targets, and (y) the date of designation of a Substitute Target (with respect to an Initial Collaboration Target or Additional Target) or an Additional Target, with respect to any such Substitute Target or Additional Target, and, with respect to any Extension Target, [***] unless (in each case) this Agreement is terminated in accordance with Article 13 (the “Research Term”).

 

 

 

 

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(iv)Extension Targets.  BMS shall have the right to add up to five (5) additional Targets to the collaboration (each such target, an “Extension Target”).  Any such Extension Target must be selected by BMS [***] by notice to CytomX.  Each of the Extension Targets shall be in the field of oncology (including immuno-oncology), unless otherwise agreed in writing by CytomX. BMS shall have the right to request CytomX to generate Probodies which can be used and further developed as: (A) Probodies or Probody drug conjugates and/or (B) Probody-containing bi-specifics, including T-cell engaging bi-specifics and/or (C) [***] (with each of (A), (B) and (C) being referred hereafter as a “Modality”) for the Extension Targets. CytomX shall retain the right to delay the commencement of activities under the Preclinical Plan (as updated) with respect to any Extension Target if such Extension Target is selected within [***] of any other Extension Target, such that activities for the newly selected Extension Target do not begin within such [***] period.

(vi)Substitute Targets. BMS shall have the right to substitute and replace (i) each Initial Collaboration Target and up to [***] of the Extension Targets [***] in accordance with the criteria set forth in clause (A) of this Section, and (ii) up to [***] of the Extension Targets in accordance with clause (B) of this Section, with a new Target (such new target, a “Substitute Target”), subject to the Excluded Target Process set forth in Section 3.3(c).  Any such replacement of an Initial Collaboration Target must occur prior to the commencement of a Clinical Trial of a Compound relating to such Initial Collaboration Target and in no case later than three (3) years after the Effective Date[***].  Any such replacement also shall be based (A) on technical/scientific information relating to such Initial Collaboration Target [***] (or a Compound relating to such Initial Collaboration Target [***]), based upon which BMS reasonably determines that identification of a Compound(s) directed to such Initial Collaboration Target [***] that would be suitable for clinical development will not be feasible, [***]to be determined by the JRC prior to the commencement of work by CytomX to produce a Probody to such Extension Target; provided that [***]than has been previously achieved by CytomX with respect to a Collaboration Target pursuant to this Agreement. In the case where BMS desires to replace an Initial Collaboration Target or Extension Target with a proposed Substitute Target, BMS shall inform CytomX, through the JRC, of BMS’ basis (and providing technical/scientific supporting information) for wanting to replace such Initial Collaboration Target or Extension Target. For clarity, Substitute Targets shall be in the field of oncology (including immuno-oncology), including a Target intended for a Probody-drug conjugate program, unless otherwise agreed in writing by CytomX. CytomX shall retain the right to delay the commencement of activities under the Preclinical Plan (as updated) with respect to any Substitute Target if such Substitute Target is selected [***] of any other Extension or Substitute Target, such that activities for the newly selected Substitute Target do not begin within such [***] period.

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(d)Excluded Target Process.  The following procedure shall be followed for the selection of an Additional Target or Extension Target or the replacement of an Initial Collaboration Target or an Extension Target with a Substitute Target.  Upon notice by BMS to CytomX of its desire to evaluate a Target as an Additional Target, Extension Target or a Substitute Target, CytomX shall provide an independent reviewer (mutually agreed to by BMS and CytomX) (the “Target Reviewer”) with a list of all Targets where CytomX has: (i) licensed exclusive rights to a third party with respect to such Target, or is otherwise contractually restricted from including such Target, (ii) entered into (and has maintained ongoing) discussions with a third party with respect to a license or collaboration regarding potential products intended for use against such Target, with such discussions being evidenced by written correspondence relating to proposed terms (“Ongoing Bona Fide Discussions”), (iii) an active bona fide internal research or development program, with respect to the research, development and commercialization of Probodies directed towards such Target under which program CytomX has identified a functional Antibody directed toward such Target (as part of development of Probodies directed to such Target), or (iv) the three (3) Targets listed on Exhibit G hereto (“Reserved Targets”) for the period of twelve (12) months after the Effective Date (and thereafter only if included under (i)-(iii) above) (any such Target, an “Excluded Target,” and such list, the “Excluded Target List”), and CytomX shall notify BMS that the Excluded Target List has been provided to the Target Reviewer.  Upon receipt of such notice BMS shall provide to the Target Reviewer a confidential written description of the new Target that BMS proposes to evaluate as a potential Additional Target, Extension Target or a Substitute Target, including the GenBank accession number (or other identifying information) for such Target.  The Target Reviewer would notify BMS, within five (5) Business Days if such Target identified by BMS is available, or an Excluded Target (but not the reason such Target is an Excluded Target).  Following such Target Reviewer notification, in the event that such Target is available, and BMS desires to designate such Target as an Additional Target, Extension Target or Substitute Target, BMS shall provide the Target Reviewer with written confirmation of such designation.  Upon receipt of such written confirmation, the Target Reviewer would inquire if CytomX has any modifications to the Excluded Target List, and CytomX would notify the Target Reviewer of such modifications (if any) within five (5) Business Days. Any such Target designated by written confirmation that is not an Excluded Target would be deemed selected by BMS as an Additional Target, Extension Target or Substitute Target.  

In each circumstance where BMS notifies CytomX of its desire to evaluate a Target as described herein, CytomX shall provide the Target Reviewer with an updated Excluded Target List prior to BMS disclosing such new Target to the Target Reviewer; provided, that BMS may evaluate a maximum of [***] Targets per Calendar Year.  Accordingly, CytomX shall inform the Target Reviewer of (A) any new Targets that have become subject to third party

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obligations, terms discussions or part of an active bona fide internal development program of CytomX, as provided above; (B) the expiration of the twelve month period referenced in clause (iv) above (or unilateral termination by CytomX) of such period with respect to any Reserved Target) and any Reserved Targets that are no longer reserved by virtue of such clause (iv); and (C) any new targets that have become available due to the termination of a collaboration (or Ongoing Bona Fide Discussions with a third party) or termination of any internal development program of CytomX.  With regard to [***], BMS acknowledges that [***] is deemed an Excluded Target, and may not be designated as an Extension Target or Substitute Target, subject to BMS’ non-exclusive license to [***] in Section 3.3(c)(v) above.  

 

3.4FTE Funding.  Notwithstanding anything to the contrary in this Agreement, with respect to new and/or revised Preclinical Plans and Budgets, CytomX shall be responsible, and BMS shall not be required to reimburse CytomX, for any FTEs or pay for any out-of-pocket costs relating to any Targets designated by BMS on or after the Amendment No 2 Effective Date; provided, that CytomX shall not in any event be required to commit any number of its FTEs or pay for any out-of-pocket costs materially in excess of what CytomX has committed on a per-Target basis for Targets designated by BMS prior to the Amendment No 2 Effective Date without CytomX’s prior written consent.

 

(d)Meetings.  Solely with respect to [***] the Parties agree to meet semi-annually in person or by video conference (provided at least one meeting per year is held in person) [***] to exchange [***].

Table 1b:  For Compounds and Products directed against Extension Targets and Substitute Targets of Extension Targets for the first Modality:

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(f)to each Party’s knowledge, as of the Amendment No 2 Effective Date, it is not in breach of the Agreement.

 

 

 

[signature page follows]

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In Witness Whereof, the Parties have caused this Amendment to be executed by their duly authorized representatives effective as of the Amendment No 2 Effective Date.

 

 

BRISTOL-MYERS SQUIBB CompanyCytomX THERAPEUTICS, INC.

By: /s/ Janeen DoyleBy: /s/ Sean McCarthy

Name: Janeen DoyleName: Sean A. McCarthy

Title: VP, Research & Early Dev AllianceTitle: President, CEO & Chairman

 

 

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Exhibit 10.3

BUSINESS CONSULTING AGREEMENT

 

This Consulting Agreement (the “Agreement”) is made and entered into by and between CytomX Therapeutics, Inc., a Delaware corporation, with an address at 151 Oyster Point Blvd, Suite 400, South San Francisco, CA  94080, (“Company”) and, Charles Fuchs, M.D., M.P.H., an individual residing at the address set below (“Consultant”), effective as of April 1, 2021 (“Effective Date”).  

 

Recitals

 

Whereas, Consultant has skills and knowledge in the Company’s field of endeavor and is well suited to advise the Company; and

 

Whereas, the Company desires that Consultant advise and consult with the Company in Consultant’s area of expertise and on the terms and conditions set forth herein;

 

Now Therefore, in consideration of the mutual obligations specified in this Agreement, the parties agree to the following:

 

1.Consulting Services. Consultant shall serve as an advisor to the chief executive officer, providing consulting services to the Company on corporate governance, strategy and development and on medical matters of the Company from time to time as requested (the “Services”).  Consultant will perform the Services using Consultant’s highest degree of professional skill and expertise. Company recognizes that Consultant is an employee of Genentech and that all Services shall be provided here subject to his duties and obligations to Genentech, subject only to the confidentiality obligations set forth in Section 5 hereunder.

 

Consultant shall render the Services at such times and in such quantities as are mutually agreeable, provided that such Services shall not exceed fifteen (15) hours in any given month, unless otherwise specifically agreed to by Consultant and Company.

 

2.Compensation. Company shall pay Consultant $300.00 per hour, payable in arrears pursuant to monthly invoices (provided by Consultant) for the Services, such invoices payable within thirty (30) days from date of receipt by the Company.  The Company shall also reimburse Consultant for reasonable expenses. Without limiting the foregoing and notwithstanding the existing terms and conditions of Consultant’s outstanding options to purchase Company common stock, Consultant hereby agrees all options held by Consultant that are unvested as of the Effective Date shall thereupon terminate for no consideration.  The Company and Consultant agree that all options to purchase Company common stock that are vested and outstanding as of the Effective Date shall remain outstanding based on Consultant’s services under this Agreement.  Consultant acknowledges that any vested options that remain outstanding on the three month anniversary of Consultant’s cessation of services under this Agreement shall thereupon terminate in accordance with their terms.  Each agreement evidencing Consultant’s options shall be deemed amended to the extent necessary to reflect the terms of this Section 2.

 

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3.Independent Contractor Status.  It is understood and agreed that Consultant is an independent contractor, is not an agent or employee of the Company, and is not authorized to act on behalf of the Company.  Consultant agrees not to hold himself or herself out as, or give any person any reason to believe that he is an employee, agent, joint venturer or partner of the Company. The Company will not make any deductions from any amounts payable to Consultant for taxes or insurance (except to the extent the Company is required by law to do so).  All payroll, income and employment taxes shall be the sole responsibility of Consultant.  

 

4.No Solicitation.  During the term of this Agreement and for one (1) years after its termination, Consultant (and its personnel performing hereunder) will not personally or through others recruit, solicit or induce any employee of the Company to terminate his or her employment with the Company.  Notwithstanding the foregoing, this provision shall not apply to potential employees of Genentech that seek out Genentech or Consultant without prior solicitation from Consultant or to potential employees of Genentech who are approached by third party recruiters independently of Consultant.

 

5.Maintaining Confidential Information.

 

5.1Company Information.  During the term of this Agreement, Consultant may receive or otherwise be exposed to confidential and proprietary information relating to the Company’s technology, know-how, data, inventions, developments, plans, business practices, and strategies, and those of the Company’s collaborators and business associates.  Such confidential and proprietary information of the Company (collectively referred to as “Information”) may include but not be limited to: (i) information supplied to Consultant with the legend “Confidential” or equivalent; (ii) the Company’s marketing and customer support strategies, financial information (including sales, costs, profits and pricing methods), internal organization, employee information, customer lists and business plans; (iii) the Company’s technology, including, but not limited to, discoveries, inventions, research and development efforts, manufacturing processes, assays, data (including without limitation preclinical, clinical and manufacturing data), software, trade secrets, processes, compounds, product, candidates, products, samples, media and/or cell lines (and procedures and formulations for producing any such samples, media and/or cell lines), vectors, viruses, assays, plasmids, formulas, methods, protocols, clinical trial designs and product know‑how and show‑how; (iv) all derivatives, improvements, additions, modifications, and enhancements to any of the above, including any such information or material created or developed by Consultant under this Agreement; and (v) information of third parties as to which the Company has an obligation of confidentiality.

 

Consultant acknowledges the confidential and secret character of the Information and agrees that the Information (with the exception of information in category (v)) is the sole, exclusive and extremely valuable property of the Company.  Accordingly, Consultant shall not reproduce any of the Information without the applicable prior written consent of the Company, use the Information except in the performance of this Agreement, nor disclose all or any part of the Information in any form to any third party, either during or after the term of this Agreement.  Upon termination of this Agreement for any reason, including expiration of term, Consultant agrees to cease using and to return to the Company all whole and partial copies of the Information.  

 

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Consultant shall not remove from the premises of Company or otherwise transfer to any third party any materials to which Company provides Consultant access, unless Consultant has express advance written consent from Company.

 

5.2Employer Information.  Consultant agrees that he will not, during her or his engagement with the Company, improperly use or disclose any proprietary information or trade secrets of her or his former or current employers or companies with which he has or has had a consulting or other relationship, if any.

 

5.3Third Party Information.  Consultant recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and, in some cases, to use it only for certain limited purposes.  Consultant agrees that he owes the Company and such third parties, both during the term of her or his engagement and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except in a manner that is consistent with the Company’s agreement with the third party) or use it for the benefit of anyone other than the Company or such third party (consistent with the Company’s agreement with the third party).

 

5.4Statutory Immunity from Prosecution. Consultant shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is done solely for the purpose of reporting or investigating a suspected violation of law and is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

 

 

6.Term and Termination.  This Agreement shall expire two years after the Effective Date.  Notwithstanding the foregoing, either the Company or Consultant may terminate this Agreement at any time with or without cause by giving thirty (30) days written notice. In addition, Consultant may terminate this Agreement immediately upon written notice that Consultant’s employer refuses to approve the engagement of Consultant under this Agreement. If this Agreement terminates, Consultant shall cease work immediately after giving or receiving such notice or termination, unless otherwise advised by the Company, shall return to the Company all Information and other materials belonging to the Company, and shall notify the Company of costs incurred up to the termination date.  Sections 4-5 of this Agreement shall survive any termination of this Agreement.  

 

7.Compliance with Applicable Laws.  Consultant warrants that all work performed under this Agreement complies with or will comply with all applicable United States and foreign laws and regulations.

 

8.Assignment; Benefit.  This Agreement is for the personal services of Consultant and may not be assigned by her, him or it.  Consultant may not delegate any of his, her or its duties under this Agreement nor shall it be assignable by Consultant by operation of law, without the prior written consent of the Company.  The parties’ rights and obligations under this Agreement

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will bind and inure to the benefit of their respective successors, heirs, executors, and administrators and permitted assigns.

 

9.Legal and Equitable Remedies.  Consultant hereby acknowledges and agrees that if Consultant breaches this Agreement, including, without limitation, by the actual or threatened disclosure of Information without the prior express written consent of the Company, the Company will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, Consultant hereby agrees that the Company shall be entitled to specific performance of Consultant’s obligations under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

 

10.Notices.  Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing.  Such notice shall be deemed given upon personal delivery to the appropriate address or sent by certified or registered mail, three days after the date of mailing.  Either party may update its notice address by written notice to the other party.

 

 

11.Governing Law; Severability.  This Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to its conflict of laws rules.  If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, that provision shall be severed and the remainder of this Agreement shall continue in full force and effect.  Any disputes arising under this Agreement shall be resolved by trial to a judge as the finder of fact seated in a court of competent subject matter jurisdiction in California.  Each party hereby consents to, and waives any defenses that party may have to or conflicting with, the personal jurisdiction and venue of all such courts or relating to trial to a judge (including without limitation the defense of forum non conveniens).

 

12.Complete Understanding; Modification.  This Agreement constitutes the final, exclusive and complete understanding and agreement of the Company and Consultant with respect to the subject matter hereof.  There are no other understandings, agreements, representations or warranties between the parties with respect to that subject matter other than those set forth in this Agreement.  Any waiver, modification or amendment of any provision of this Agreement shall be effective only if in writing and signed by a Company officer.

 

[Signature page follows]

 

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In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.

 

 

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Exhibit 31.1

CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Sean A. McCarthy, President and Chief Executive Officer of CytomX Therapeutics, Inc., certify that:

 

 

 

 

 

Exhibit 31.2

CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Carlos Campoy, Chief Financial Officer of CytomX Therapeutics, Inc., certify that:

 

 

 

 

Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of CytomX Therapeutics, Inc. (the “Company”) on Form 10-Q for the quarter ended March 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Sean A. McCarthy, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (the “Act”), that:

 

 

This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of CytomX Therapeutics, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.

Exhibit 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of CytomX Therapeutics, Inc. (the “Company”) on Form 10-Q for the quarter ended March 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Carlos Campoy, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (the “Act”), that:

 

 

This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of CytomX Therapeutics, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.

 

 

 

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