Form 10-Q Zymeworks Inc. For: Mar 31
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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and effective as of April 1, 2020 (the “Effective Date”).
BETWEEN:
Mr. James Priour, having a residence at […***…]1.
(the “Employee”)
AND:
ZYMEWORKS BIOPHARMACEUTICALS INC., a corporation registered in the State of Washington and having its principal place of business at 2100-1215 Fourth Avenue, Seattle, WA, 98161, USA
(the “Company”)
WHEREAS
A.The Company is a protein engineering company engaged in the business of researching, developing and commercializing proteins for pharmaceutical applications;
B.The Employee has experience in commercialization of pharmaceutical products and/or related skills and expertise and wishes to contribute such experiences to the development and growth of the Company’s business; and
C.The Company has agreed to offer employment to the Employee, and the employee has agreed to accept employment with the Company on the terms and conditions set out in this Agreement and Appendices hereto.
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the premises and mutual covenants and agreements hereinafter contained, the parties hereto covenant and agree as follows:
ARTICLE 1 – GENERAL
1.1 Definitions. Unless otherwise defined, all capitalized terms used in this Agreement will have the meanings given below:
(a) “Business” means the business of researching, developing and commercializing therapeutic proteins, antibodies, and any other research, development and manufacturing
1 Personal Information – Contact Information.
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work considered, planned or undertaken by the Company during the Employee’s employment;
(b) “Confidential Information” means trade secrets and other information, in whatever form or media, in the possession or control of the Company, which is owned by the Company or by one of its clients or suppliers or a third party with whom the Company has a business relationship (collectively, the “Associates”), and which is not generally known to the public and has been specifically identified as confidential or proprietary by the Company, or its nature is such that it would generally be considered confidential in the industry in which the Company or its Associates operate, or which the Company is obligated to treat as confidential or proprietary. Confidential Information includes, without limitation, the following:
(i) the products and confidential or proprietary facts, data, techniques, materials and other information related to the business of the Company, including all related development or experimental work or research, related documentation owned or marketed by the Company and related formulas, algorithms, patent applications, concepts, designs, flowcharts, ideas, programming techniques, specifications and software programs (including source code listings), methods, processes, inventions, sources, drawings, computer models, prototypes and patterns;
(ii) information regarding the Company’s business operations, methods and practices, including market strategies, product pricing, margins and hourly rates for staff and information regarding the financial, legal and corporate affairs of the Company;
(iii) the names of the Company’s Associates and the nature of the Company’s relationships with such Associates; and
(iv) technical and business information of, or regarding, the Company’s Associates.
(c) “Developments” means all inventions, ideas, concepts, designs, improvements, discoveries, modifications, computer software, and other results which are or have been conceived of, developed by, written, or reduced to practice by the Employee, alone or jointly with others (including, where applicable, all modifications, derivatives, progeny, models, specifications, source code, design documents, creations, scripts, artwork, text, graphics, photos and pictures) at any time;
(d) “Excluded Developments” means any Development that the Employee establishes:
(i) was developed entirely on the Employee’s own time;
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(ii) was developed without the use of any equipment, supplies, facilities, services or trade secret information of the Company;
(iii) does not relate directly to the Business or affairs of the Company or to the actual or demonstrably anticipated research or development of the Company; and
(iv) does not result from any work performed by the Employee for the Company.
(e) “Prior Developments” means any Development that the Employee establishes was developed prior to the Employee performing such services for the Company and precedes the Employee’s initial engagement with the Company.
1.2 Sections and Headings. The division of this Agreement into Articles and Sections and the insertion of headings are for the convenience of reference only and do not affect the construction or interpretation of this Agreement. The terms “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of this Agreement.
ARTICLE 2 – EMPLOYMENT
2.1 Services.
On the Effective Date, the Employee will commence employment with the Company in the position of Senior Vice President, Commercial (“SVP Commercial”) on the terms and conditions set out in this Agreement.
2.2 Qualifications.
(a) The Employee acknowledges that the falsification or misrepresentation of qualifications, including but not limited to education, skills, prior experience, depth and/or breadth of knowledge, references or similar matters, used to secure the position of SVP Commercial, represents a breach of this contract.
(b) Employment Duties. Subject to the direction and control of the senior management of the Company (“Management”), the Employee will perform the duties set out in Appendix “A” to this Agreement and any other duties that may be reasonably assigned to him/her by Management from time to time. Management may alter the duties Employee is expected to perform for the Company at any time with or without notice.
2.3 Throughout the term of this Agreement, the Employee will:
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(a) diligently, honestly and faithfully serve the Company and will use all reasonable efforts to promote and advance the interests and goodwill of the Company;
(b) devote him/herself in a full-time capacity to the business and affairs of the Company;
(c) adhere to all applicable policies of the Company as in effect and as amended from time to time, including but not limited to the Company’s Code of Business Conduct and Ethics;
(d) exercise the degree, diligence and skill that a reasonably prudent SVP Commercial would exercise in comparable circumstances;
(e) refrain from engaging in any activity which will in any manner, directly or indirectly, compete with the trade or business of the Company except in accordance with Sections 2.4 and 2.6 herein and as outlined under the Conflict of Interest guidelines in Zymeworks Inc.’s corporate policies and procedures as in effect and as amended from time to time; and
(f) not acquire, directly or indirectly, any interest that constitutes 5% or more of the voting rights attached to the outstanding shares of any corporation or 5% or more of the equity or assets in any firm, partnership or association, the business and operations of which in any manner, directly or indirectly, compete with the trade or business of the Company.
2.4 The Employee will disclose to Management all potential conflicts of interest and activities which could reasonably be seen to compete, indirectly or directly, with the trade or business of the Company. Management will determine, in its sole discretion, whether the activity in question constitutes a conflict of interest or competition with the Company. To the extent that Management, acting reasonably, determines a conflict of interest or competition exists, the Employee will discontinue such activity forthwith or within such longer period as Management agrees. The Employee will immediately certify in writing to the Company that he/she has discontinued such activity and that he/she has, as required by Management, cancelled any contracts or sold or otherwise disposed of any interest or assets over the 5% threshold described in 2.3(g) herein acquired by the Employee by virtue of engaging in the impugned activity, or where no market exists to enable such sale or disposition, by transfer of the Employee’s beneficial interest into blind trust or other fiduciary arrangements over which the Employee has no control or direction, or other action that is acceptable to the Board.
2.5 The Employee will not be employed by another company or provide consulting or other services to other companies or commercial entities while employed by the Company, without the expressed written permission of the Company. By seeking and accepting employment with the Company, the Employee recognizes that the Employee is employed by the Company for the
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expressed benefit of advancing the scientific, development and business objectives of the Company and that concurrent employment outside the Company detracts from those objectives.
2.6 Notwithstanding Sections 2.3, 2.4 and 6.4, the Employee is not restricted from nor is required to obtain the consent of the Company to make investments in any company which is involved in pharmaceuticals or biotechnology with securities listed for trading on any Canadian or U.S. stock exchange, quotation system or the over-the-counter market.
2.7 For the purposes of Sections 2.3 2.4 and 2.6 herein, “Employee” includes any entity or company owned or controlled by the Employee.
ARTICLE 3 – COMPENSATION
3.1 Base Salary. As compensation for all services rendered under this Agreement, the Company will pay to the Employee and the Employee will accept from the Company a base salary of $375,000 (USD) per annum. The base salary will be paid semi-monthly, in arrears, in equal installments, less statutory and other authorized deductions.
3.2 Stock Options. The Employee shall be granted 40,800 options to acquire shares of common stock of Zymeworks Inc. (the “Shares”), provided the Employee is employed by the Company on the grant date (the “Options”). The exercise price of the Options will be set in accordance with the terms of the Zymeworks Inc. Amended and Restated Stock Option and Equity Compensation Plan, or such other relevant plan as may be in effect on the grant date (the “Equity Compensation Plan”), and the Options will vest and become exercisable in accordance with the terms such Equity Compensation Plan. A copy of the Equity Compensation Plan in effect as of the Effective Date is attached hereto as Appendix “B”.
3.3 Restricted Stock Units. The Employee shall be granted 6,800 restricted stock units, provided the Employee is employed by the Company on the grant date (the “RSUs”). The RSUs will vest in three equal annual installments starting one year from the grant date, in accordance with the terms of the Equity Compensation Plan.
3.4 Incentive Plans. The Employee shall be entitled to participate in certain incentive programs for the Company’s Employees, including, without limiting the generality of the foregoing, share option plans, share purchase plans, profit-sharing or bonus plans (including target annual bonus as described in Section 3.5) (collectively, the “Incentive Plans”). Such Participation shall be on the terms and conditions of such Incentive Plans as at the date hereof or as may from time to time be amended or implemented by the Company in its sole discretion. A copy of the Zymeworks Inc. Amended and Restated Employee Stock Purchase Plan in effect as of the Effective Date is attached hereto as Appendix “C”.
3.5 Target Annual Bonus. The Employee’s target annual bonus will be 35% of base salary. The Employee will be eligible to receive a full (non-prorated bonus) if the Effective
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Date is on or prior to June 30 of the year of the Effective Date. The Employee will be eligible to receive a prorated bonus if the Effective Date is on or after July 1 of the year of the Effective Date.
3.6 Signing Bonus. The Employee shall receive a Signing Bonus of $200,000 (USD) to be paid within 30 days of the Effective Date. The Signing Bonus shall be repayable by the Employee to the Company if the Employee’s employment with the Company is terminated pursuant to Section 4.2(a), (b) or (c) of this Agreement within two (2) years of the Effective Date, subject to amortization on a straight-line basis starting from the one (1) year anniversary of the Effective Date.
3.7 Performance and Salary Review. Management will review the Employee’s performance, base salary, and equity participation level under the terms of any Incentive Plans annually beginning in December 2020, or as otherwise approved by the Compensation Committee, with interim reviews, coaching and feedback throughout the year to support the Employee in his/her career development objectives and the achievement of personal, departmental and corporate goals. The timing of performance and salary reviews may from time to time be amended by the Company in its sole discretion.
3.8 Relocation Expenses. The Company will reimburse the Employee up to a maximum of $90,000 (USD) for relocation expenses (plus gross up such that the Company will cover the Employee’s additional personal tax obligations as a result of the relocation expense reimbursements, calculated based on the Employee’s marginal combined federal, state, and local tax rate). Such relocation expense reimbursement shall be payable by the Company any time within the first three (3) months of the Effective Date upon the Employee’s submission of valid receipts to the Company. The relocation expense reimbursement (including gross up) shall be repayable by the Employee to the Company if the Employee’s employment with the Company is terminated pursuant to Section 4.2(a), (b) or (c) of this Agreement within two (2) years of the Effective Date, subject to amortization on a straight-line basis.
3.9 Other Expenses. The Company will reimburse the Employee for all ordinary and necessary expenses incurred by the Employee in the performance of the Employee’s duties under this Agreement. Reimbursement of such expenses will be made in accordance with the Company’s policies.
3.10 Professional Fees. The Company will reimburse the Employee for annual registration and/or licensing fees required to maintain the Employee’s status as a member in good standing with the appropriate professional bodies required to continue effective employment, and which were held by the Employee as of the effective date. The Company will reimburse reasonable costs incurred by the Employee to complete the minimum annual continuing professional development requirements required to maintain such status.
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3.11 Vacation. The Employee will be eligible for twenty (20) days’ paid vacation per calendar year, earned pro rata at a rate of 1.66 days per completed month of service. In accordance with the Company’s human resources policies, vacation time in excess of ten (10) days not taken during the year in which it is earned may not be carried forward into the subsequent year without the written pre-approval of Management. Unused vacation time will not be paid out at the end of the fiscal year. Upon termination, vacation not taken in the calendar year will be paid out according to the Employees’ annual salary rate prorated to the number of days’ vacation not taken.
3.12 Benefits. The Employee will be eligible to participate in all benefit plans generally available to Employees of the Company, subject to meeting applicable eligibility requirements of such plans.
3.13 Sick Leave. The Employee will be entitled to take up to ten (10) days paid sick leave per calendar year, earned pro rata at a rate of 0.83 days per month of service; however, employees may use Sick Leave on a pro-rata basis following the completion of their first 40 hours of service. Unused sick days will not be paid out, but up to 56 hours of unused paid sick days may be carried forward into the subsequent year. For employees based in Seattle, Sick Leave may be used for any purpose authorized by the Seattle Paid Sick and Safe Time (“PSST”) ordinance. This benefit is intended to comply with the PSST ordinance and should be interpreted in accordance with its requirements.
ARTICLE 4 – TERM AND TERMINATION
4.1 Term. This Agreement will commence on the Effective Date and will terminate on the effective date of termination by either the Employee or the Company in accordance with Section 4.2 of this Agreement.
4.2 Termination.
(a) Termination for Cause. The Company may terminate the employment of the Employee for cause at any time, without notice, damages or compensation of any kind.
(b) Termination Without Cause. The Company may terminate the employment of the Employee without cause at any time by providing the Employee with:
(i) written notice or payment in lieu of notice to the Employee as follows:
A. twelve (12) months of notice or the equivalent of twelve (12) months of base salary as at that date if termination of employment occurs during the first three years of employment measured from the Start Date; and
B. commencing in the fourth year of employment measured from the Start Date, an additional one (1) month of notice or the equivalent of one (1)
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month of base salary as at that date for each additional completed year of service, up to a total maximum of eighteen (18) months; and
(ii) continuation of group extended health and dental benefits through the applicable notice period stated in section 4.2(b) herein (where all other benefits terminate on the last day worked by the Employee).
(c) Resignation. The Employee may terminate his/her employment with the Company by giving prior written notice to Management of not less than thirty (30) days or such shorter period as the Employee and Management may agree. The Company may choose to waive all or part of the notice period and pay to the Employee the base salary to be earned during the balance of the notice period in full and adequate compensation to the Employee with respect to any claim relating to the Employee’s employment, and the Employee waives any right that he/she may have to claim further payment, compensation or damages from the Company.
(d) Termination following Change of Control. Notwithstanding any other provision in this Agreement, if within twelve (12) months following a Change of Control of the Company (as defined below), the Employee’s employment is terminated by the Company without cause, the Employee shall receive as severance eighteen (18) months of base salary and benefits continuation as at that date, and full vesting acceleration of all unvested stock options or other equity grants made to the Employee as at that date. For all purposes of this Agreement, “Change of Control” means:
(i) the acquisition, directly or indirectly, by any person or group of persons acting jointly or in concert, as such terms are defined in the Securities Act, British Columbia, of common shares of the Company which, when added to all other common shares of the Company at the time held directly or indirectly by such person or persons acting jointly or in concert constitutes for the first time in the aggregate 40% of more of the outstanding common shares of the Company and such shareholding exceeds the collective shareholding of the current directors of the Company, excluding any directors acting in concert with the acquiring party; or
(ii) the removal, by extraordinary resolution of the shareholders of the Company, of more than 51% of the then incumbent Board of the Company, or the election of a majority of Board members to the Company’s board who were not nominees of the Company’s incumbent board at the time immediately preceding such election; or
(iii) consummation of a sale of all or substantially all of the assets of the Company; or
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(iv) the consummation of a reorganization, plan of arrangement, merger, or other transaction which has substantially the same effect as to above.
Payment under section 4.2(d) herein will be in lieu of and not in addition payment under section 4.2(b).
4.3 Stock Options on Termination. Except as provided by section 4.2(d), the vesting and exercise of any stock options granted to the Employee in the event the Employee’s employment with the Company or this Agreement is terminated, for any reason, shall be governed by the terms of the Equity Compensation Plan and any applicable stock option agreement in effect between the Company and the Employee at the time of termination.
4.4 Benefits Continuation and No Mitigation. The Employee shall not be required to mitigate the amount of any payments provided for in this section by seeking other employment or otherwise, nor shall the amount of any payment provided for in this section be reduced by any compensation earned by the Employee as the result of employment by another employer after the date of termination, or otherwise. Notwithstanding the forgoing, the Employee is required to report to the Company if he/she obtains replacement benefits coverage through new employment during any period of benefits continuation contemplated by this Article 4 and benefits coverage by the Company will cease effective the date the Employee receives such new coverage and the Employee will not be entitled to any payment in respect of benefits coverage from the Company in respect of any notice period or severance payment contemplated in this Article 4.
4.5 No Additional Payments. Payment of severance, in accordance with 4.2(b) or 4.2(d) above, to the Employee by the Company will be full and adequate compensation to the Employee with respect to any claim relating to the Employee’s employment or termination or manner of termination of the Employee’s employment, and the Employee waives any right that he/she may have to claim further payment, compensation or damages from the Company.
4.6 Condition to Payment. Payment of any amount of severance under this Agreement in excess of any minimum required by the Employment Standards Act is conditional upon execution by the Employee of a release of all claims, satisfactory to the Company.
4.7 Survival. Upon a termination of this Agreement for any reason, the Employee will continue to be bound by the provisions of Article 4, Article 5, Article 6, Article 7, and Article 9.
ARTICLE 5– CONFIDENTIALITY
5.1 Confidential Information.
(a) Ownership of Confidential Information - The Employee acknowledges that the Confidential Information is and will be the sole and exclusive property of the Company.
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The Employee acknowledges that the Employee has not, and will not, acquire any right, title or interest in or to any of the Confidential Information.
(b) Non-Disclosure, Use and Reproduction of Confidential Information - The Employee will keep all the Confidential Information strictly confidential, and will not, either directly or indirectly, either during or subsequent to employment with the Company, disclose, allow access to, transmit, transfer, use or reproduce any of the Confidential Information in any manner except as required to perform the duties of the Employee for the Company and in accordance with all procedures established by the Company for the protection of the Confidential Information. Without limiting the foregoing, the Employee:
(i) will ensure that all the Confidential Information and all copies thereof, are clearly marked, or otherwise identified as confidential to the Company and proprietary to the person or entity that first provided the Confidential Information, and are stored in a secure place while in the Employee’s possession, custody, charge or control;
(ii) will not, either directly or indirectly, disclose, allow access to, transmit or transfer any of the Confidential Information to any person other than to an employee, officer, or director of the Company but only upon a “need to know” basis, without the prior written authorization of Management; and
(iii) will not, except as required by the Employee’s position, use any of the Confidential Information to create, maintain or market any product or service which is competitive with any product or service produced, marketed, licensed, sold or otherwise dealt in by the Company, or assist any other person to do so.
(c) Legally Required Disclosure - Notwithstanding the foregoing, to the extent the Employee is required by law to disclose any Confidential Information, the Employee will be permitted to do so, provided that notice of this requirement is delivered to the Company in a timely manner, so that the Company may contest such potential disclosure.
(d) Return of Materials, Equipment and Confidential Information - Upon request by the Company, and in any event when the Employee leaves the employ of the Company, the Employee will immediately return to the Company all the Confidential Information and all other materials, computer programs, documents, memoranda, notes, papers, reports, lists, manuals, specifications, designs, devices, drawings, notebooks, correspondence, equipment, keys, pass cards, and property, and all copies thereof, in any medium, in the Employee’s possession, charge, control or custody, which are owned by, or relate in any way to the Business or affairs of the Company.
(e) Exceptions - The non-disclosure obligations of Employee under this Agreement shall not apply to Confidential Information which the Employee can establish:
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(i) is, or becomes, readily available to the public other than through a breach of this Agreement;
(ii) is disclosed, lawfully and not in breach of any contractual or other legal obligation, to Employee by a third party; or
(iii) through written records, was known to Employee, prior to the date of first disclosure of the Confidential Information to Employee by the Company
5.2 Ownership of Developments
(a) Acknowledgment of Company Ownership - The Employee acknowledges that the Company will be the exclusive owner of all the Developments made during the term of the Employee’s employment by the Company except Excluded Developments and to all intellectual property rights in and to such Developments. The Employee hereby assigns all right, title and interest in and to such Developments and their associated intellectual property rights throughout the world and universe to the Company, including without limitation, all trade secrets, patent rights, copyrights, mask works, industrial designs and any other intellectual property rights in and to each such Development, effective at the time each is created. Further, the Employee irrevocably waives all moral rights the Employee may have in such Developments.
(b) Excluded Developments and Prior Developments - The Company acknowledges that it will not own any Excluded Developments or Prior Developments.
(c) Disclosure of Developments - To avoid any disputes over the ownership of Developments, the Employee will provide the Company with a general written description of any of the Developments the Employee believes the Company does not own because they are Excluded Developments or Prior Developments. Thereafter, the Employee agrees to make full and prompt disclosure to the Company of all Developments, including, without limitation, Excluded Developments, made during the term of the Employee’s employment with the Company. The Company will hold any information it receives regarding Excluded Developments and Prior Developments in confidence.
(d) Further Acts - The Employee agrees to cooperate fully with the Company both during and after the Employee’s employment by the Company, with respect to (i) signing further documents and doing such acts and other things reasonably requested by the Company to confirm the Company’s ownership of the Developments other than Excluded Developments and Prior Developments, the transfer of ownership of such Developments to the Company, and the waiver of the Employee’s moral rights therein, and (ii) obtaining or enforcing patent, copyright, trade secret or other protection for such Developments; provided that the Company pays all the Employee’s expenses in doing so, and reasonable
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compensation if such acts are required after the Employee leaves the employment by the Company.
(e) Employee-owned Inventions - The Employee hereby covenants and agrees with the Company that, unless the Company agrees in writing otherwise, the Employee will not use or incorporate any Excluded Development or Prior Development in its work product, services, or other deliverables the Employee provides to the Company. If the Employee uses or incorporates any Excluded Development or Prior Development with the Company’s permission, as provided above, the Employee (i) represents and warrants that he or she owns all proprietary interest in such Excluded Development or Prior Development and (ii) grants to the Company, at no charge, a non-exclusive, irrevocable, perpetual, worldwide license to use, distribute, transmit, broadcast, sub-license, produce, reproduce, perform, publish, practice, make, and modify such Excluded Development or Prior Development.
(f) Prior Employer Information - The Employee hereby covenants and agrees with the Company that during the Employee’s employment by the Company, the Employee will not improperly use or disclose any confidential or proprietary information of any former employer, partner, principal, co-venturer, customer, or independent contractor of the Employee and that the Employee will not bring onto the Company’s premises any unpublished documents or any property belonging to any such persons or entities unless such persons or entities have given their consent. In addition, the Employee will not violate any non-disclosure, non-compete or proprietary rights agreement the Employee has signed with any person or entity prior to the Employee’s execution of this Agreement, or knowingly infringe the intellectual property rights of any third party while employed by the Company.
(g) Protection of Computer Systems and Software - The Employee agrees to take all necessary precautions to protect the computer systems and software of the Company, including, without limitation, complying with the obligations set out in the Company’s policies.
ARTICLE 6 – RESTRICTIVE COVENANTS
6.1 Non-solicitation by the Employee. The Employee agrees that at any time, while employed by the Company and for a period of one (1) year thereafter the Employee will not, without the prior written consent of the Company induce or attempt to influence, directly or indirectly, an employee of the Company to leave the employ of the Company.
6.2 Non-competition. The Employee agrees that while employed by the Company and for a period of six (6) months thereafter, the Employee will not, without the prior written consent of the Company, directly or indirectly, anywhere in Canada or the United States, provide any professional services to any person or entity that can be reasonably viewed as a competitor to
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the Business of the Company, while the Employee was employed by the Company, which relate to therapeutic antibody modeling, design, modification and commercialization for industrial and pharmaceutical applications.
6.3 Reasonableness of Non-competition and Non-solicitation Obligations. The Employee confirms that the obligations in Sections 6.1 and 6.2 are fair and reasonable given that, among other reasons:
(a) the sustained contact the Employee will have with the clients of the Company will expose the Employee to the Confidential Information regarding the particular requirements of these clients and the Company’s unique methods of satisfying the needs of these clients, all of which the Employee agrees not to act upon to the detriment of the Company; and/or
(b) the Employee will be performing important development work on the products or services owned, developed or marketed by the Company;
and the Employee agrees that the obligations in Sections 6.1 and 6.2, together with the Employee’s other obligations under this Agreement, are reasonably necessary for the protection of the Company’s good will, trade secrets and proprietary interests and that given the Employee’s general knowledge and experience they would not prevent the Employee from being gainfully employed if the employment relationship between the Employee and the Company were to end. The Employee further confirms that the geographic scope of the obligation in Section 6.2 is reasonable given the nature of the market for the products and business of the Company. The Employee also agrees that the obligations in Sections 6.1 and 6.2 are in addition to the confidentiality and non-disclosure obligations provided for in this Agreement and acknowledges that the Company would not have entered into this Agreement but for the protections provided to the Company by all of the aforementioned obligations.
6.4 Conflict of Interest. The Employee recognizes that the Employee is employed by the Company in a position of responsibility and trust and agrees that during the Employee’s employment with the Company, the Employee will not engage in any activity or otherwise put the Employee in a position which conflicts with the Company’s interests. Without limiting this general statement, the Employee agrees that during the Employee’s employment with the Company, the Employee will not knowingly lend money to, guarantee the debts or obligations of or permit the name of the Employee or any part thereof to be used or employed by any corporation or firm which directly or indirectly is engaged in or concerned with or interested in any Business in competition with the Business of the Company unless the Employee receives prior written authorization from the Company.
6.5 Acknowledgments. In the event the Employee breaches any covenant contained herein, the one (1) year period provided for in Sections 6.1 and the six (6) month period provided for in Section 6.2 will be extended for a period of three (3) months from the date any such breach is cured. In the event it is necessary for the either party to retain legal counsel to enforce any of
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the terms and conditions of this Agreement, the prevailing party will pay the other parties’ reasonable legal fees, court costs and other related expenses.
ARTICLE 7 – ENFORCEMENT
7.1 Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Washington without regards to Washington’s conflicts of law rules that may result in the application of the laws of any jurisdiction other than Washington. To the extent that any lawsuit is permitted under this Agreement, Employee expressly consents to the personal and exclusive jurisdiction and venue of the State and Federal Courts located in Washington for any lawsuit filed against me by the Company. In the event of a breach or threatened breach by the Employee of any of the provisions of Article 5 or Article 6 of this Agreement, nothing in this Agreement precludes the Company from applying to a court of competent jurisdiction to seek injunctive relief or otherwise protect or enforce its intellectual property rights, or enforce the Employee’s fiduciary, non-competition, non-solicitation, confidentiality or any other post-employment obligations.
ARTICLE 8
8.1 Severability and Limitation. All agreements and covenants contained herein are severable and, in the event any of them will be held to be invalid by any competent court, this Agreement will be interpreted as if such invalid agreements or covenants were not contained herein. Should any court or other legally constituted authority determine that for any such agreement or covenant to be effective that it must be modified to limit its duration or scope, the parties hereto will consider such agreement or covenant to be amended or modified with respect to duration and scope so as to comply with the orders of any such court or other legally constituted authority or to be enforceable under the laws of the State of Washington, and as to all other portions of such agreement or covenants they will remain in full force and effect as originally written.
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ARTICLE 9 – ARBITRATION
9.1 Arbitration and Equitable Relief. IN CONSIDERATION OF EMPLOYEE’S EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL EMPLOYMENT-RELATED DISPUTES, AND EMPLOYEE’S RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER BENEFITS PAID TO EMPLOYEE BY THE COMPANY, AT PRESENT AND IN THE FUTURE, EMPLOYEE AGREES THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR OTHERWISE), ARISING OUT OF, RELATING TO, OR RESULTING FROM EMPLOYEE’S EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF EMPLOYEE’S EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT IN CONFORMITY WITH THE WASHINGTON UNIFORM ARBITRATION ACT (THE “ACT”), AND PURSUANT TO WASHINGTON LAW, AND SHALL BE BROUGHT IN EMPLOYEE’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY WITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN THE ACT. DISPUTES THAT EMPLOYEE AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE FAMILY AND MEDICAL LEAVE ACT, ANY AND ALL CLAIMS UNDER THE REVISED CODE OF WASHINGTON OR ANY OTHER WASHINGTON STATE LABOR LAW, CLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR COMMON LAW CLAIMS. NOTWITHSTANDING THE FOREGOING, EMPLOYEE UNDERSTANDS THAT NOTHING IN THIS AGREEMENT CONSTITUTES A WAIVER OF EMPLOYEE’S RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT. EMPLOYEE FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH EMPLOYEE.
9.2 Procedure. EMPLOYEE AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION & MEDIATION SERVICES, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (THE “JAMS RULES”), WHICH ARE AVAILABLE AT http://
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www.jamsadr.com/rules-employment-arbitration/ AND FROM HUMAN RESOURCES. EMPLOYEE AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, AND MOTIONS TO DISMISS AND DEMURRERS, APPLYING THE STANDARDS SET FORTH UNDER THE ACT AND WASHINGTON LAW. EMPLOYEE AGREES THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE MERITS. EMPLOYEE ALSO AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, WHERE PROVIDED BY APPLICABLE LAW. EMPLOYEE AGREES THAT THE DECREE OR AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN ANY COURT HAVING JURISDICTION THEREOF. EMPLOYEE UNDERSTANDS THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT EMPLOYEE SHALL PAY ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION THAT EMPLOYEE INITIATES, BUT ONLY SO MUCH OF THE FILING FEES AS EMPLOYEE WOULD HAVE INSTEAD PAID HAD EMPLOYEE FILED A COMPLAINT IN A COURT OF LAW. EMPLOYEE AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH WASHINGTON LAW AND THAT THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL WASHINGTON LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO RULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH WASHINGTON LAW, WASHINGTON LAW SHALL TAKE PRECEDENCE. EMPLOYEE AGREES THAT ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN KING COUNTY, WASHINGTON.
9.3 Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN EMPLOYEE AND THE COMPANY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER EMPLOYEE NOR THE COMPANY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.
9.4 Administrative Relief. EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT DOES NOT PROHIBIT EMPLOYEE FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING, BUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE
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EMPLOYEE FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW.
9.5 Voluntary Nature of Agreement. EMPLOYEE ACKNOWLEDGES AND AGREE THAT EMPLOYEE IS EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. EMPLOYEE FURTHER ACKNOWLEDGE AND AGREES THAT EMPLOYEE HAS CAREFULLY READ THIS AGREEMENT AND THAT EMPLOYEE HAS ASKED ANY QUESTIONS NEEDED FOR EMPLOYEE TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT EMPLOYEE IS WAIVING EMPLOYEE’S RIGHT TO A JURY TRIAL. FINALLY, EMPLOYEE AGREES THAT EMPLOYEE HAS BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF EMPLOYEE’S CHOICE BEFORE SIGNING THIS AGREEMENT.
ARTICLE 10 – GENERAL
10.1 Notices. Any notices to be given hereunder by either party to the other party may be effected in writing, either by personal delivery or by mail if sent certified, postage prepaid, with return receipt requested. Mailed notices will be addressed to the parties at the address set out on the first page of this Agreement, or as otherwise specified from time to time. Notice will be effective upon delivery.
10.2 Independent Legal Advice. The Employee specifically confirms that he/she has been advised to retain his/her own independent legal advice prior to entering into this Agreement.
10.3 Construction. The parties acknowledge that each party and its respective counsel have had the opportunity to independently review and negotiate the terms and conditions of this Agreement, and that the normal rule of construction to the effect that any ambiguities are to be construed against the drafting party will not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
10.4 Assignment. The Employee cannot assign his/her interest in this Agreement.
10.5 Benefit of Agreement. This Agreement will ensure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and permitted assigns of the parties hereto.
10.6 Entire Agreement. The Appendices to this Agreement, together with the terms and conditions contained within this Agreement constitute the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior employment agreements, understandings and arrangements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or
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collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement.
10.7 Amendments and Waivers. No amendment to this Agreement will be valid or binding unless set forth in writing and duly executed by all of the parties hereto. No waiver of any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.
10.8 Governing Law. This Agreement will be governed by and construed, enforced and interpreted exclusively in accordance with the laws of the State of Washington.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written.
ZYMEWORKS BIOPHARMACEUTICALS INC.
By: /s/ Kathy O’Driscoll
Kathy O’Driscoll, Chief People Officer
SIGNED, SEALED AND DELIVERED by Employee: /s/ James Priour Signature March 20, 2020 Date | WITNESSED by: /s/ Patricia Tan Signature Patricia Tan Print Name 111-1385 West 8th Ave. Vancouver, B.C. V6H 3V9 Address Recruitment Associate Occupation | ||||
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APPENDIX A
Job Description
Employee: James Priour
Position: Senior Vice President, Commercial
Department: Commercial
Reporting to: Chief Executive Officer
Key Responsibilities:
•In collaboration with the senior management team, develops strategic and operational plans that support the company’s commercial objectives. Liaises closely with Clinical and Medical Affairs on the development and execution of plans. Contributes to the execution of strategic goals and objectives as well as the overall tactical management of the department.
•Builds, recruits, and leads the US Oncology Market Strategy and Market Access teams.
•Directs the planning and execution of a fully integrated pre-launch global commercial business plan, including global marketing, life cycle, business analytics, market planning and market research.
•Creates/refines brand strategy, including product positioning, brand equity, core messages and tactics targeting providers, payors, patients, caregivers, and the general public.
•Identifies data gaps/information needs and design market research, advisory boards, patient advocacy groups and other avenues for obtaining/maintaining deep insights into the market and product positioning.
•Establishes personal connections with key opinion leaders, patient advocacy representatives and other key stakeholders.
•Aligns global commercial strategies with various partners for geographically partnered assets.
•Collaborates with Medical Affairs to develop and create content and execute the program for the speaker training.
•Coordinates with Medical Affairs, HEOR, and Market Access in the submission of dossiers for guideline committees, payors and health transparency assessments.
•Designs, plans, and leads commercial planning meetings in advance of launch, including presentations to the executive committee and the Board of Directors.
•Owns the demand forecast, make pricing recommendations for launch and beyond, and proactively manage gross-to-net.
•As requested, provides commercial input on business development opportunities.
•Establishes and maintains strong relationships with senior executives so as to identify business needs and seek full range of technical solutions.
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Education and Experience:
BSc/BA in science, chemistry, biology, economics, advertising, business administration or related field and a minimum of 15+ years related experience or an equivalent combination of education and experience.
Skills and Abilities:
•Demonstrated ability to think holistically and long-term across a broad spectrum of industry trends and issues. Ability to envision, shape and communicate long term business objectives and priorities and be able to create competitive and break-through strategies and plans
•Excellent analytical and conceptual thinking abilities, forward-looking. Out-of-the-box problem solving skills
•Proven history of building relationships and fostering engagement across multiple stakeholders, including the board, senior management, operational levels, suppliers and business partners
•Exceptional leadership skills and the ability to mentor and develop strong contributors. A track record of inspiring and aligning organizations around goals and contributing as an active role model in company values
•Significant experience in pharmaceutical sales and marketing operations
•Understanding of the core principles of brand management, including brand positioning, messaging and overall campaign
•Good understanding of regulatory and legal requirements for pharmaceutical commercial operations
•Sound business acumen with a practical, results-oriented management style that can translate innovative, creative strategies and conceptual thinking into action plans.
•Polished interpersonal and communication style with the ability to communicate complex ideas effectively, to persuade and to clearly explain complex technical insights to a wide variety of audiences, both verbally and in writing
•Demonstrated high level of integrity and ethics.
/s/ James Prior March 20, 2020
| Employee’s Signature | Date | ||||
/s/ Neil Klompas March 20, 2020
| Supervisor’s Signature | Date | ||||
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APPENDIX B
ZYMEWORKS INC. EQUITY COMPENSATION PLAN
Please find enclosed a copy of the Zymeworks Inc. Amended and Restated Stock Option and Equity Compensation Plan.
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APPENDIX C
ZYMEWORKS INC. AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
EMPLOYEE STOCK PURCHASE PLAN
Please find enclosed a copy of the Zymeworks Inc. Amended and Restated Employee Stock Purchase Plan
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Priour, James
Exhibit 10.2
March 3, 2021
Mr. James Priour
Senior Vice President, Commercial
Senior Vice President, Commercial
Dear James,
Re: Annual Compensation Review
Our Compensation Review Process for the 2020 performance year is now complete. On behalf of the Zymeworks’ Board of Directors, I am pleased to confirm your promotion to the position of Chief Commercial Officer, in addition to the following changes to your base salary.
| Current Base Salary | $375,000 (USD) | ||||
| Merit Increase % | 6.67% | ||||
| Base Salary (as of January 1st, 2021) | $400,000 (USD) | ||||
Executive bonus compensation awards are determined based on two criteria: the degree to which the company achieved its corporate goals for the year (weighted at 75%), and the degree to which you achieved your Individual goals for the year (weighted at 25%).
Details of your bonus payment are provided below:
| 2020 Target Bonus % | 35.00% | ||||
| 2020 Bonus Payment | $126,328 (USD) | ||||
| 2021 Target Bonus % | 40.00% | ||||
Change in base salary and bonus payment will be reflected on the March 15th, 2021 pay.
Performance-based Stock Option Award Performance-based Restricted Stock Unit Award | 37,500 6,250 | ||||
You will be notified at a later date when your performance-based stock option award and restricted stock unit awards are ready for your review and acceptance in Shareworks.
Your revised compensation is based on a market assessment of Zymeworks’ compensation practices and your contributions to the Company’s goals and ongoing efforts to make Zymeworks a world leader in antibody and protein therapeutics. All other terms and conditions of your employment contract remain unchanged.
This is well deserved! I want to personally thank you for all your contributions and commitment to Zymeworks’ success. It is appreciated.
Sincerely,
/s/ Ali Tehrani
Dr. Ali Tehrani
President & Chief Executive Office
Dr. Ali Tehrani
President & Chief Executive Office
Zymeworks Inc. 540-1385 West 8th Ave, Vancouver, BC, Canada, V6H 3V9 www.zymeworks.com
Exhibit 31.1
CERTIFICATION
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Ali Tehrani, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Zymeworks Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: May 5, 2021 | |||||
/s/ Ali Tehrani | |||||
Chief Executive Officer | |||||
Exhibit 31.2
CERTIFICATION
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Neil Klompas, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Zymeworks Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: May 5, 2021 | |||||
/s/ Neil Klompas | |||||
Chief Financial Officer | |||||
Exhibit 32.1
SECTION 906 CERTIFICATION
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) in connection with the Quarterly Report on Form 10-Q of Zymeworks Inc. for the quarterly period ended March 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned officer hereby certifies, to such officer’s knowledge, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Zymeworks Inc.
/s/ Ali Tehrani | ||||||||
Name: | Ali Tehrani | |||||||
Title: | Chief Executive Officer | |||||||
Date: | May 5, 2021 | |||||||
This certification accompanies the Report pursuant to § 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed “filed” by the Company for purposes of §18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liability of that section.
Exhibit 32.2
SECTION 906 CERTIFICATION
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) in connection with the Quarterly Report on Form 10-Q of Zymeworks Inc. for the quarterly period ended March 31, 2021 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned officer hereby certifies, to such officer’s knowledge, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Zymeworks Inc.
/s/ Neil Klompas | ||||||||
Name: | Neil Klompas | |||||||
Title: | Chief Financial Officer | |||||||
Date: | May 5, 2021 | |||||||
This certification accompanies the Report pursuant to § 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed “filed” by the Company for purposes of §18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liability of that section.
Exhibit 99.1
THIRD LEASE MODIFICATION AGREEMENT
THIS AGREEMENT (this “Agreement”) dated for reference the _17_ day of February, 2021,
BETWEEN:
5th & MAIN PARTNERSHIP
(the “Landlord”)
AND:
ZYMEWORKS INC.
(the “Tenant”)
WHEREAS:
A.By a lease dated January 25, 2019 (the “Original Lease”), between the Landlord and the Tenant, as modified and expanded by a letter agreement dated June 27, 2019 and by a Lease Expansion and Modification Agreement dated April 16, 2020, between the Landlord and the Tenant (collectively, the “Lease”), the Landlord demised and leased to the Tenant those certain premises (the “Existing Premises”) comprising a portion of the second (2nd) floor and the fifth (5th), sixth (6th), seventh (7th) and eighth (8th) floors of the Building having a civic address of 114 East 4th Avenue, Vancouver, British Columbia, as more particularly described in the Lease, upon the terms and conditions therein provided; and
B.The Landlord and Tenant have agreed to further expand the Existing Premises so as to include approximately 1,737 square feet of the west side of the second (2nd) floor of the Building, as shown on the plan attached hereto as Exhibit “A” (the “Additional Space”), upon the terms and conditions of this Agreement.
IN CONSIDERATION of the mutual covenants and agreements and other provisions herein contained and for other good and valuable consideration (the receipt and sufficiency of which is acknowledged), the parties agree as follows:
1. DEFINED TERMS
1.1 Unless the context otherwise requires, capitalized terms which are used in this Agreement (including the Recitals) and not otherwise defined herein have the meanings given to them by the Lease.
2. DEMISE OF ADDITIONAL SPACE
2.1 The Landlord demises and leases to the Tenant, and the Tenant leases and takes from the Landlord, the Additional Space for the Term under the Lease; provided, however, that it is understood and agreed that the Additional Space Commencement Date (as defined in Section 6.1) may occur after
CRE:55282-2\EM-008091_1_3
the Commencement Day in respect of the Existing Premises, and, similarly, the Additional Space Possession Date (as defined in Section 6.1) may occur after the Scheduled Possession Date or actual date of delivery of possession in respect of the Existing Premises pursuant to the Lease, but such inconsistency of dates will not extend the term of the lease of the Additional Space beyond the expiry of the Term otherwise provided under the Lease, but, rather the term of the lease of the Additional Space shall expire upon the expiry of the Term of the lease of the Existing Premises.
2.2 Subject to the terms and conditions of this Agreement, the Landlord and Tenant acknowledge and agree that, from and after the date hereof, the Lease will be modified to include the Additional Space for the Term (subject to the proviso set forth in Section 2.1 above) and, except for the payment of Basic Rent as set forth in Section 3.1 below) and as otherwise expressly modified or provided for under this Agreement, all of the provisions of the Lease will apply to the Additional Space as they do to the Existing Premises (including, but not limited to, the Tenant’s obligation to pay all Additional Rent payable pursuant to the Lease in respect of the Additional Space) during the Term and, as applicable, all extensions and renewals thereof; and all references in the Lease to the “Premises” will from and after the date hereof, but subject to the terms and conditions of this Agreement, include the Existing Premises and the Additional Space; and the Lease (and, in particular, the reference to the Rentable Area of the Premises in the Lease Summary of the Original Lease) shall be deemed to be amended accordingly to reflect all premises comprising the Premises. Furthermore, as of the Additional Space Commencement Date, the Tenant’s Proportionate Share shall increase accordingly to reflect the inclusion of the Additional Space as part of the Premises under the Lease.
2.3 The Landlord and the Tenant agree that the Lease is hereby further modified by adding Exhibit “A” attached hereto to the Original Lease as part of Schedule A2 attached thereto.
3. BASIC RENT PAYABLE FOR ADDITIONAL SPACE
3.1 During the Term of the Lease, commencing as of the Additional Space Commencement Date, in addition to the Basic Rent payable by the Tenant in respect of the Existing Premises and all Additional Rent payable in respect of the entire Premises (as expanded pursuant to this Agreement) pursuant to the Lease, the Tenant covenants and agrees to pay to the Landlord, or as the Landlord may direct in writing, in lawful money of Canada, without any set-off, compensation, or deduction whatsoever except as otherwise expressly set out in the Lease, on the days and at the times hereinafter specified, Basic Rent in respect of the Additional Space in the amounts as set out below:
(a) Years of Term 1 - 3: Thirty-Seven Dollars and Fifty Cents ($37.50) per square foot of the area of the Additional Space per annum in equal monthly installments in advance on the first (1st) day of each calendar month;
(b) Years of Term 4 - 7: Thirty-Nine Dollars ($39.00) per square foot of the area of the Additional Space per annum in equal monthly installments in advance on the first (1st) day of each calendar month; and
(c) Years of Term 8 - 10: Forty-Three Dollars and Fifty Cents ($43.50) per square foot of the area of the Additional Space per annum in equal monthly installments in advance on the first (1st) day of each calendar month;
and the parties agree that the Lease (and, in particular, the reference to Basic Rent in the Lease Summary of the Original Lease) is hereby deemed to be amended accordingly to include the Basic Rent set forth above in respect of the Additional Space as part of the Basic Rent payable under the Lease.
2
CRE:55282-2\EM-008091_1_3
For greater certainty, the parties agree that the area of the Additional Space is approximately 1,737 square feet, and that such area shall be included as part of the Rentable Area Of the Premises for the purposes of the calculation of the Tenant’s Proportionate Share pursuant to the Lease. The actual area of the Additional Space shall be updated by the Landlord according to a measurement conducted in accordance with Article 2.51 of the Original Lease, and such determination shall be final and binding on the parties hereto.
4. TENANT IMPROVEMENT ALLOWANCE
4.1 In determining the amount of the Tenant Allowance under Section 3 of Schedule E of the Original Lease, the Landlord shall include the increase in the Rentable Area Of The Premises resulting from expansion of the Existing Premises to include the Additional Space; provided, however, that notwithstanding anything to the contrary in the Lease, the timing of the payment of that portion of the Tenant Allowance applicable to the Additional Space will be treated separate and apart from the Tenant Allowance payable in respect of the Existing Premises such that the Landlord will not be required to pay the portion of the Tenant Allowance applicable to the Additional Space unless and until the Tenant has taken possession of the Additional Space and completed all of the Tenant’s Work in respect thereof and otherwise following satisfaction of each and every term and condition set forth in Section 3.2 of Schedule E of the Original Lease as the same relate to the Additional Space.
5. USE OF ADDITIONAL SPACE
5.1 The Tenant shall use the Additional Space only for office and storage purposes that are auxiliary in nature to the Tenant’s laboratory on the sixth (6th) floor of the Building and otherwise subject to the terms and conditions of the Lease. The Tenant shall complete an operations letter as required by the City of Vancouver confirming such use prior to its use of the Additional Space for such purposes. For greater certainty, the Tenant will confirm, as and when required from time to time, in an operations letter addressed to the City of Vancouver that its use of the Additional Space is auxiliary to the Tenant’s laboratory on the sixth (6th) floor of the Building.
6. FIXTURING PERIOD
6.1 The Tenant will be granted access to the Additional Space for a period of eight (8) months (the “Additional Space Fixturing Period”), commencing on that date (the “Additional Space Possession Date”) which is five (5) Business Days after the Landlord has received, to its satisfaction, the Development Permit Minor Amendment (the “DPMA”) from the City of Vancouver in regards to the relocation of the gymnasium facilities within the Building from the Additional Space to alternate premises acceptable to the Landlord and the related work associated therewith to carry out all of the Tenant’s Work in respect of the Additional Space. All of the Tenant’s Work in respect of the Additional Space shall be completed at the cost and expense of the Tenant and otherwise in accordance with the terms of the Lease, mutatis mutandis, except as otherwise expressly provided herein. Notwithstanding anything to the contrary herein or in the Lease, the Tenant’s failure to complete the Tenant’s Work in respect of the Additional Space during the Additional Space Fixturing Period shall not delay the commencement of the Tenant’s obligation to pay Basic Rent or any Additional Rent in respect of the Additional Space as and from the Additional Space Commencement Date. For greater certainty, the “Additional Space Commencement Date” shall mean that date which is the day immediately following the expiry of the Additional Space Fixturing Period.
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6.2 During the Additional Space Fixturing Period, the Tenant shall construct or cause to be constructed and completed the Tenant’s Work in respect thereof in a good and workmanlike manner and in accordance with the plans and specifications approved by the Landlord, acting reasonably. The Tenant shall not commence construction of any Tenant’s Work in respect of the Additional Space until all plans and specifications for the Tenant’s Work are approved by the Landlord, such approval not to be unreasonably withheld or delayed, and the Tenant has obtained all necessary permits for the Tenant’s Work under all Applicable Laws.
6.3 During the Additional Space Fixturing Period and during any period of time prior to the Additional Space Commencement Date in which the Tenant is permitted by the Landlord to have occupancy of the Premises, whether exclusively or in common with the Landlord, its contractors, sub-contractors or employees, the Tenant shall be bound by all the provisions of the Lease except the Tenant shall not, during the Additional Space Fixturing Period, be required to pay: (i) Basic Rent, (ii) Leased Area Expenses, or (iii) the Tenant’s Proportionate Share of the Common Area Expenses, in respect of the Additional Space. However, notwithstanding the foregoing, the Tenant shall, during the Additional Space Fixturing Period, be obligated to pay for all utilities consumed at the Additional Space and the costs of all garbage and recycling removal and disposal from the Additional Space. Furthermore, should the Tenant occupy and conduct business within the Additional Space at any time during the Additional Space Fixturing Period, then the Tenant will be obligated to pay for all costs associated with the Tenant’s use of the Additional Space including, without limitation, hydro costs, after-hours HVAC costs and the costs of janitorial service within the Additional Space.
6.4 The Tenant or its contractors or agents shall not be entitled to possession of the Additional Space whether to commence the Tenant’s Work in respect thereof or for any other reason unless or until:
(i) the Subject Condition set forth in Section 8 below has been satisfied;
(ii) there is not then any Event of Default by the Tenant under the Lease;
(iii) the Landlord notifies the Tenant that the Landlord has approved the Tenant’s plans and specifications for the Tenant’s Work in respect of the Additional Space, and the Additional Space Fixturing Period has commenced; and
(iv) the Tenant and its contractors have provided the Landlord with certificates of insurance verifying it has complied with the insurance requirements under the Lease.
6.5 For greater clarity and notwithstanding anything to the contrary in this Lease, the Additional Space shall be delivered to the Tenant on an “as is, where is” basis in accordance with Section 7 below.
6.6 The terms and conditions of this Section 6 shall replace and supersede the terms and conditions of Section 4 of Schedule E of the Original Lease only insofar as the Additional Space is concerned.
7. ACCEPTANCE OF ADDITIONAL 2ND FLOOR EXPANSION SPACE
7.1 The Tenant agrees that it has entered into this Agreement on the express understanding that the Additional Space is being leased to the Tenant on an “as is, where is” basis, notwithstanding anything in the Lease to the contrary. For greater certainty, the Landlord’s Work described under the Lease in respect of the Existing Premises shall not apply to the Additional Space. All work to the Additional Space shall be performed at the sole cost and expense of the Tenant in accordance with the terms of this Agreement and the Lease.
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8. SUBJECT CONDITION
8.1 The terms and conditions of this Agreement and the demise and lease of the Additional Space to the Tenant are subject to the fulfilment and performance the following condition precedent (the “Subject Condition”), which is for the exclusive benefit of the Landlord and must be acknowledged or waived in writing, in whole or in part, by the Landlord on or before June 1, 2021 (the “Subjection Condition Removal Date”):
(a) the Landlord shall have received the DPMA permit from the City of Vancouver, upon term and conditions satisfactory to the Landlord, in its sole and absolute discretion, regarding the work required in connection with the relocation of the gymnasium facilities to such alternate premises.
Unless the foregoing Subject Condition is fulfilled (or waived in writing by the Landlord) on or before the Subject Condition Removal Date (or such other date as the Landlord may agree upon in writing), this Agreement shall be deemed null and void and of no further force or effect and, in such event, each of the parties hereto shall have no claim against the Landlord under this Agreement, but rather the Lease shall remain in full force and effect and binding between the Landlord and the Tenant, and the Additional Space will not form part of the Premises demised and leased to the Tenant pursuant to the Lease.
9. EFFECT ON LEASE
9.1 Subject to the terms and conditions of this Agreement and, in particular, subject to the satisfaction or waiver of the Subject Condition on or before the Subject Removal Date, this Agreement is expressly made a part of the Lease to the same extent as if incorporated therein, mutatis mutandis, and the parties agree that all agreements, covenants, conditions, and provisos contained in the Lease, except as modified or otherwise provided herein, shall be and remain unaltered and in full force and effect during the Term with respect to the Premises and shall apply to the Additional Space. The Landlord and the Tenant acknowledge and agree to perform and observe, respectively, the obligations of the Landlord and the Tenant under the Lease as modified hereby. The Landlord and the Tenant hereby confirm and ratify the Lease as hereby modified.
10. COSTS
10.1 The Landlord and the Tenant agree that they shall bear their own costs and expenses in relation to the drafting, review and execution of this Agreement.
11. GENERAL
11.1 Time is of the essence hereof.
11.2 It is understood and agreed that there are no covenants, representations, agreements, warranties or conditions in any way relating to the subject matter of this Agreement, whether express or implied, collateral or otherwise, either oral or written, except for those set forth in this Agreement.
11.3 This Agreement may be executed by personal delivery, facsimile transmission, or scanned PDF by email and in counterparts with the same effect as if all parties to this Agreement had signed the same document, and all counterparts will be construed together and constitute one and the same.
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IN WITNESS WHEREOF the parties have executed this Agreement with effect as of the day and year first above written.
5TH & MAIN PARTNERSHIP ZYMEWORKS INC.
Per: /s/ Judy Leung Per: /s/ Neil A. Klompas
Authorized Signatory Authorized Signatory
Print Name: Judy Leung Print Name: Neil A. Klompas
6
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CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
Exhibit 99.2
CONFIDENTIAL
BGNE March 29, 2021
FIRST AMENDMENT TO
COLLABORATION AGREEMENT
This First Amendment (the “Amendment”) to the Agreement (as defined below), is entered into as of March 29, 2021 (the “Amendment Effective Date”), by and between Zymeworks Inc., a corporation organized and existing under the laws of British Columbia (“Zymeworks”), having a place of business at 540-1385 West 8th Avenue, Vancouver, BC, Canada V6H 3V9, and Beigene, Ltd., a Cayman Island exempted company incorporated with limited liability (“BeiGene”), having a place of business at c/o Mourant Governance Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, PO Box 1348, Grand Cayman KY1-1108, Cayman Islands. Zymeworks and BeiGene are each referred to individually as a “Party” and together as the “Parties”.
BACKGROUND
A.Zymeworks and BeiGene entered into that certain License and Collaboration Agreement, dated November 26, 2018, pursuant to which BeiGene obtained an exclusive license under certain patents and know-how controlled by Zymeworks to develop and commercialize Zymeworks’ proprietary bispecific HER2 antibody known as ZW25 in the Field in the Territory (the “Agreement”).
B.Zymeworks is conducting clinical development of the Licensed Product outside the Territory and wishes to expand the scope of its clinical development of Licensed Product to include certain global clinical trials of the Licensed Product that include arms to investigate the use of the Licensed Product in combination with the Tisle Product (as defined below).
C.BeiGene wishes for Zymeworks to conduct such clinical development and wishes to participate in such clinical development in the Territory, all as further described below.
D.The Parties now desire to amend the Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein below, the sufficiency of which is acknowledged by both Parties, the Parties agree as follows as of the Amendment Effective Date:
AGREEMENT
1. Definitions. Unless otherwise defined in this Amendment, initially capitalized terms used herein shall have the meanings given to them in the Agreement.
2. Article 1. Definitions. Article 1 of the Agreement is hereby amended as follows:
a) Section 1.6 of the Agreement is hereby deleted in its entirety and replaced with the following:
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
“1.6 BeiGene IP” means all Patent Rights and Know-How that (i) are Controlled by BeiGene as of the Effective Date or (ii) thereafter come into BeiGene’s Control independent of this Agreement, and in each case, that are generated, used or applied by or on behalf of BeiGene or its Affiliates or sublicensees in the Development, manufacture or Commercialization of Licensed Products, or otherwise cover the use of the Licensed Product in combination with Tisle Products.”
b) The following definitions are hereby added as Sections 1.69, 1.70 and 1.71, respectively, of the Agreement, and the current Section 1.69 (Additional Definitions) of the Agreement is hereby renumbered as Section 1.72 and the current Section 1.70 (Interpretation) of the Agreement is hereby renumbered as Section 1.73:
“1.69 “Tisle” means tislelizumab (BGB-A317), BeiGene’s proprietary humanized anti–PD-1 monoclonal antibody.
1.70 “Tisle Combination Studies” means any and all Clinical Trials set forth in the Global Development Plan, which are ZW25 Multi-Regional Clinical Studies, that investigate the use of the Licensed Product in combination with a Tisle Product.”
1.71 “Tisle Product” means any pharmaceutical that contains, incorporates or comprises Tisle, as the sole Active Ingredient, in any presentation, formulation or dosage form.”
3. Section 2.1. License Grants to BeiGene. The following sentence is hereby added to the end of Section 2.1 of the Agreement:
“Subject to the terms and conditions of this Agreement, Zymeworks hereby grants to BeiGene a non-exclusive license, with the right to grant sublicenses solely in accordance with Section 2.2, under the Zymeworks Collaboration IP that arises from the Tisle Combination Studies and covers (i) the use of the Licensed Product in combination with Tisle Products, or (ii) the use of Tisle Products, alone or in combination with any other Active Ingredient, solely to apply for Regulatory Approval and to distribute, use, sell, offer for sale, import and otherwise commercialize Tisle Product worldwide.”
4. Section 2.3. Retained Rights. Section 2.3 of the Agreement is hereby deleted in its entirety and replaced with the following:
“2.3 Retained Rights.
(a) Notwithstanding the exclusive nature of the License, Zymeworks expressly retains the rights to use the Zymeworks IP in the Field in the Territory in order to (i) perform its obligations under this Agreement, (ii) to conduct research and Development activities that are assigned to Zymeworks under the Global Development Plan and otherwise to the extent permitted by this Agreement solely to support Commercialization outside of the Territory, and (iii) […***…]1 , in each case whether directly or through its Affiliates, licensees or contractors. For
1 Competitive Information – Commercially Sensitive Terms.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
clarity, Zymeworks retains the exclusive right to practice, license and otherwise exploit the Zymeworks IP outside the scope of the License. Without limiting the generality of the foregoing sentence, Zymeworks retains, as between the Parties, the exclusive right to […***…]2.
(b) As between the Parties, BeiGene retains the exclusive right to commercialize Tisle Products, including for use in combination with Licensed Products and other therapies; provided that […***…]3 .”
5. Section 5.2. Global Development Plan. The following new Section 5.2(d) is hereby appended to Section 5.2 of the Agreement to the end thereof:
“(d) The Global Development Plan is hereby amended to add the Tisle Combination Study described on Exhibit A hereto (the “Initial Tisle Combination Study”), which Exhibit A shall be amended by Zymeworks as it finalizes the plan and protocol for the Initial Tisle Combination Study or plans further Tisle Combination Studies, in each case subject to review, discussion and approval by the JSC in accordance with Section 3.2; provided, however, […***…]4 .”
6. Section 5.8. Data Exchange and Use. The following language is hereby added at the end of Section 5.8 of the Agreement:
“Without limiting the foregoing, with respect to the Clinical Data from the Tisle Combination Studies, (a) Zymeworks, its Affiliates and licensees will have the right to use such Clinical Data in accordance with this Agreement and for purposes of Developing and seeking Regulatory Approval of Licensed Products for use in combination with Tisle Products outside the Territory; and (b) BeiGene, its Affiliates and licensees will have the right to use such Clinical Data for purposes of (i) Developing and Commercializing Licensed Product in the Territory in accordance with this Agreement, and (ii) seeking Regulatory Approvals of Tisle Products for use in combination with Licensed Products worldwide.”
7. Section 6.1. Holder of Regulatory Approvals and Regulatory Submissions. Section 6.1 of the Agreement is hereby deleted in its entirety and replaced with the following:
“6.1 Holder of Regulatory Approvals and Regulatory Submissions. BeiGene shall be the holder of Regulatory Approvals and Regulatory Submission for Licensed Products in the Field in the Territory […***…]5 . Zymeworks shall reasonably cooperate with BeiGene, at BeiGene’s request and expense, to enable BeiGene to obtain any or all such Regulatory Approvals and Regulatory Submissions. […***…]6 .”
2 Competitive Information – Commercially Sensitive Terms.
3 Competitive Information – Discovery Information and Commercially Sensitive Terms.
4 Competitive Information – Discovery Information and Commercially Sensitive Terms.
5 Competitive Information – Discovery Information and Commercially Sensitive Terms.
6 Competitive Information – Discovery Information and Commercially Sensitive Terms.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
8. Section 6.2. Review of Regulatory Submissions. A new Section 6.2(e) is hereby added at the end of Section 6.2 of the Agreement as follows:
“(e) Without limiting the foregoing, Zymeworks will have the right to review BeiGene’s, and its sublicensees’ and licensees’, presentation of any Clinical Data from the Tisle Combination Studies that are included in BeiGene’s regulatory submissions for Tisle Products for use in combination with Licensed Products. Zymeworks will have the right to attend and participate in any meetings between BeiGene and Regulatory Authorities that discuss the use of Tisle in combination with ZW25; provided, for clarity, that Zymeworks will not have the right to attend any meetings between a Regulatory Authority and any of BeiGene’s Third Party licensees of the Tisle Product (or any of such licensee’s sublicensees). Similarly, BeiGene will have the right to review Zymeworks’ presentation of any Clinical Data from the Tisle Combination Studies included in Zymeworks’ Regulatory Submissions for the Licensed Product for use in combination with Tisle Product. BeiGene will have the right to attend and participate in any meetings between Zymeworks and Regulatory Authorities that discuss the use of Licensed Product in combination with Tisle Product; provided, for clarity, that BeiGene will not have the right to attend any meetings between a Regulatory Authority and any of Zymeworks’ Third Party licensees of the Licensed Products (or any of such licensee’s sublicensees). Accordingly each Party shall provide the other Party with a copy of all such regulatory submissions prepared by or on behalf of such Party at least […***…]7 prior to submission and shall consider in good faith any reasonable comments received from such other Party with respect thereto. In addition, each Party shall provide the other Party with notice no later than […***…]8 after receiving notice of any such meeting or discussion with any Regulatory Authority, and shall provide such other Party with a written summary of each such meeting or discussion in English promptly following such meeting or discussion.
9. Section 6.3. Right of Reference. Section 6.3 of the Agreement is hereby deleted in its entirety and replaced with the following:
“6.3 Right of Reference.
(a) Each Party hereby grants to the other Party the right of reference to all Regulatory Submissions pertaining to Licensed Products in the Field submitted by or on behalf of such Party or its Affiliates, solely to the extent reasonably necessary for the purposes set forth in this Section 6.3 and requested by such other Party. In addition, BeiGene hereby grants to Zymeworks the right of reference to all regulatory submissions pertaining to Tisle Products submitted by or on behalf of BeiGene or its Affiliates or licensees, solely to the extent reasonably necessary for the purposes set forth in this Section 6.3 and requested by Zymeworks.
(b) BeiGene may, itself or through its Affiliates, sublicensees and licensees, use such right of reference to Zymeworks’ Regulatory Submissions solely for the purposes of seeking, obtaining and maintaining Regulatory Approval and any pricing or reimbursement approvals, as
7 Competitive Information – Commercially Sensitive Terms.
8 Competitive Information – Commercially Sensitive Terms.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
applicable, of (i) Licensed Products in the Field in the Territory or (ii) Tisle Product for use in combination with the Licensed Product.
(c) Zymeworks may, itself or through its Affiliates and licensees, use such right of reference to BeiGene’s Regulatory Submissions and Regulatory Approvals solely for the purpose of seeking, obtaining and maintaining Regulatory Approval of Licensed Products outside the Territory or, to the extent permitted pursuant to this Agreement, in the Territory. Without limiting the foregoing, Zymeworks may, itself or through its Affiliates and licensees, use such right of reference to BeiGene’s regulatory submissions and Regulatory Approvals for Tisle Product (a) to support Regulatory Submissions for the Tisle Combination Studies outside of the Territory and, to the extent permitted, in the Territory and (b) for the purpose of seeking, obtaining and maintaining Regulatory Approval of Licensed Products for use in combination with Tisle Product outside the Territory.
(d) The Party requesting such right of reference shall bear the reasonable costs and expenses of the other Party associated with providing the right of reference pursuant to this Section 6.3. Each Party will take such actions as may be reasonably requested by the other Party to give effect to the intent of this Section 6.3 and to give the other Party the benefit of the rights of reference to the granting Party’s regulatory submissions in the other Party’s territory as provided herein.”
10. Section 7.3(a)(iii). Supply by Zymeworks. A new Section 7.3(a)(iii) is hereby added to the Agreement immediately following Section 7.3(a)(ii) as follows:
“Without limiting the foregoing, Zymeworks will supply Licensed Product to BeiGene for use in the Tisle Combination Studies in accordance with the Clinical Supply Agreement, except that such supply of Licensed Product […***…]9 . In addition, concurrent with this Amendment, the Parties have executed a new supply agreement, pursuant to which BeiGene will supply Tisle Product to Zymeworks (the “Tisle Supply Agreement”), for use in the Tisle Combination Studies, together with a quality agreement governing supply of Tisle Product pursuant to the Tisle Supply Agreement and a pharmacovigilance agreement governing safety data exchange with respect to the Tisle Combination Studies. Supply of Tisle Product under the Tisle Supply Agreement […***…]10 for the supply of Tisle Product for use with the Tisle Combination Studies contemplated under the Global Development Plan as of the date hereof. […***…]11 . Outside of the Territory, Zymeworks will have the right to use the Tisle Product supplied to it pursuant to the Tisle Supply Agreement for Development for use with the Licensed Product in accordance with the Global Development Plan, including to label such Tisle Product for use in the Tisle Combination Studies, and as otherwise permitted pursuant to the Tisle Supply Agreement or this Agreement.”
11. Section 13.1. Indemnification by BeiGene. Section 13.1 of the Agreement is hereby deleted in its entirety and replaced with the following:
9 Competitive Information – Commercially Sensitive Terms.
10 Competitive Information – Commercially Sensitive Terms.
11 Competitive Information – Commercially Sensitive Terms.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
“13.1 Indemnification by BeiGene. BeiGene shall indemnify and hold harmless Zymeworks, its Affiliates, and their respective directors, officers, employees, contractors, agents and assigns (individually and collectively, the “Zymeworks Indemnitee(s)”) from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (individually and collectively, “Losses”) incurred in connection with any claims, demands, actions or other proceedings by any Third Party (individually and collectively, “Claims”) to the extent arising from (a) the Development, manufacture or Commercialization of the Licensed Products by or on behalf of BeiGene or any of its Affiliates or sublicensees, including product liability Claims, in the Territory, (b) BeiGene’s actions (or omissions) in the performance of its obligations with respect to Regulatory Submissions and interactions with Regulatory Authorities, in each case, with respect to the Licensed Products in the Territory, (c) the gross negligence or willful misconduct of BeiGene or its Affiliates or sublicensees, (d) BeiGene’s breach of any of its representations or warranties made in or pursuant to this Agreement or any covenants or obligations set forth in this Agreement, (e) the failure of BeiGene or its Affiliates or sublicensees to abide by any Applicable Laws, (f) manufacture or commercialization of Tisle or a Tisle Product by BeiGene or its Affiliates or licensees for use in combination with a Licensed Product, (g) the development of Tisle or a Tisle Product by BeiGene or its Affiliates or licensees (not including Zymeworks and its Affiliates and their licensees) for use in combination with a Licensed Product, in each case of clauses (a) through (g) above, except to the extent such Losses or Claims arise out of an Zymeworks Indemnitee’s gross negligence or willful misconduct, breach of this Agreement, or material failure to abide by any Applicable Laws.”
12. Section 13.2 Indemnification by Zymeworks. The exception at the end of section 13.2 of the Agreement is hereby deleted in its entirety and replaced with the following:
“, except to the extent such Losses or Claims arise out of any of a BeiGene Indemnitee’s gross negligence or willful misconduct, breach of this Agreement or material failure to abide by any Applicable Laws, or out of the development, use, manufacture or commercialization of any Tisle Product.”
13. No Other Modifications. Except as specifically set forth in this Amendment, the terms and conditions of the Amendment shall remain in full force and effect. No waiver of any obligation under this Amendment shall be effective unless it has been given in writing and signed by the Party giving such waiver. No provision of this Amendment may be amended or modified other than by a written document signed by authorized representatives of each Party.
14. Miscellaneous. This Amendment, together with the Agreement, sets forth the entire agreement and understanding of the Parties as to the subject matter hereof and supersedes all proposals, oral or written, and all other communications between the Parties with respect to such subject matter. This Amendment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment shall be governed by and construed in accordance with the laws of the State of New York and the patent laws of the United States without reference to any rules of conflict of laws.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives.
ZYMEWORKS INC.
By: /s/ Ali Tehrani
Name: Ali Tehrani, Ph.D.
Title: President & Chief Executive Officer
BEIGENE, LTD.
By: /s/ Angus J. Grant
Name: Angus J. Grant
Title: Chief Business Executive
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO ZYMEWORKS INC. IF PUBLICLY DISCLOSED. INFORMATION THAT HAS BEEN OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[…***…]”.
Exhibit A
Global Development Plan
Initial Tisle Combination Study
ZW25 Multi-Regional Registrational Study
[…***…]12
12 Competitive Information – Discovery Information and Commercially Sensitive Terms.
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