CONSULTING AGREEMENT FOR MEDICAL/SCIENTIFIC ADVISORY BOARD MEMBER
EXHIBIT
10.16
This Consulting Agreement (the “Agreement”), is entered into as of April ___, 2006, by and
between Artes Medical USA, Inc., a Delaware corporation qualified to do business in California
located at 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000 (“Company”) and , M.D.
(“Contractor”) with respect to the following facts:
A. Company is a specialty pharmaceutical and medical device company focused on the development of
new and innovative products for the private-pay personal aesthetics market.
B. Contractor is an individual who has medical or scientific expertise with respect in the area of
dermatology, plastic or cosmetic surgery and is willing to provide consulting services to Company
as a member of Company’s Medical/Scientific Advisory Board (“Advisory Board”) as described below.
Company desires to engage Contractor to assist with development and support of the Company’s
products and activities as a member of the Advisory Board and to provide consulting services as set
forth below.
C. The parties understand and agree that the consulting services to be rendered hereunder shall
neither constitute the practice of medicine nor consist of the professional treatment of patients
by Company, its employees or agents or by Contractor or any designee of Contractor.
NOW, THEREFORE, the parties agree as follows:
1. Engagement. Company hereby appoints Contractor as a consultant, and as
a member of the Company’s Advisory Board and Contractor hereby accepts such appointment upon the
terms and conditions set forth herein.
2. Duties of Advisory Board Member. Contractor is engaged as a consultant for the
purpose of assisting Company in developing the products and activities of the Company as a member
of the Advisory Board as set forth herein. In addition to the specific duties set forth on Exhibit
A, attached hereto and incorporated herein by reference, Contractor shall also perform such other
administrative duties as may be mutually agreed upon by the parties. For purposes of this
Agreement, Contractor’s consulting services to be rendered hereunder do not constitute the practice
of medicine by Contractor or any designee of Contractor, the giving of medical advice or
professional treatment of any individuals affiliated directly or indirectly with the Company.
3. Consideration. In consideration for Contractor’s activities as an Advisory Board
member, upon proper approval by the Board of Directors, the Company shall grant to Contractor
warrants to purchase 25,000 shares of common stock with terms and conditions as set forth in the
form of Warrant to Purchase Common Stock Agreement, attached hereto as Exhibit B and incorporated
herein by this reference. The Board at its sole discretion may grant additional warrants or stock
options for exceptional performance upon annual or periodic reviews.
4. Term. The term of this Agreement shall commence as of the date set forth above
and shall continue for a four (4) year period (“Initial Term”) which shall be automatically
renewable for additional one (1) year terms, unless either party gives written notice to the other
party of its intention not to
renew the Agreement at least sixty (60) days prior to the expiration date of the then existing
term.
5. Termination. Either party may terminate this Agreement without cause at any
time by giving written notice to the other party at least sixty (60) days prior to the
intended termination date. The Company may terminate this Agreement immediately upon written notice
for any acts or omissions that constitute a material breach of this Agreement, or that jeopardize
the good reputation or fiscal integrity of the Company in the discretion of the Board of Directors.
All warrants which have not vested at the time of termination for any reason shall lapse and have
no further effect or validity.
6. Independent Contractor. It is mutually understood, acknowledged, and
agreed no partnership, joint-venture, agency or Company-employee relationship is, is intended
to be, or shall be construed to be, established by this Agreement, but that Contractor is serving
as a member of the Company’s Advisory Board as an independent contractor.
7. Confidential Information/Proprietary Rights. Consultant has reviewed and executed
the Proprietary Information and Inventions Agreement of the Company, attached hereto as Exhibit C
and incorporated herein by this reference, and agrees to be fully bound the provisions and
agreements thereof.
8. Miscellaneous Provisions.
8.1 Governing Law. This Agreement is made and shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California, without regard to the conflict of laws principles thereof, as the same apply to
agreements executed solely by residents of California and wholly to be performed within California.
This Agreement shall be interpreted, construed, governed and enforced according to the laws of the
State of California.
8.2 Entire Agreement. Modifications. This Agreement, together with exhibits and
schedules attached hereto, contains the entire agreement between the parties hereto with respect to
the transactions contemplated hereby, and contains all of the terms and conditions thereof and
supersedes all prior agreements and understandings relating to the subject matter hereof. No
changes or modifications of or additions to this Agreement shall be valid unless the same shall be
in writing and signed by each party hereto.
8.3 Reimbursement of Expenses. Company shall reimburse Contractor for reasonable
and necessary out-of–pocket expenses incurred by Contractor in carrying out the duties of
Contractor as set forth on Exhibit A; provided however, that such expenses shall be approved in
advance by Company, and Contractor shall provide receipts to the Company for such expenses prior to
receipt of any reimbursement hereunder.
8.4 Attorneys’ Fees. If any action at law or in equity is necessary to enforce or
interpret the terms of this Warrant, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be
entitled.
[the remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement, which shall be effective as of the
date set forth above.
Company:
Artes Medical USA, Inc.
Artes Medical USA, Inc.
By: |
||||
President and Chief Executive Officer |
Consultant:
M.D. | ||||
Exhibit A
(Scope of Engagement/Duties)
(Scope of Engagement/Duties)
Contractor shall perform the following duties on behalf of Company:
1) | Attendance at four (4) quarterly Medical/Scientific Advisory Board meetings per year in person or by telephonic conference as scheduled by management of the Company; | ||
2) | Participation on short notice in brief telephonic conferences with members of management or representatives of the Company; and | ||
3) | Ensure availability to present at four (4) presentations per year on Company products, including Artefill, at major dermatology/plastic surgery conferences or symposiums. |
EXHIBIT B
[Form of Warrant Agreement]
[Form of Warrant Agreement]
Intentionally
omitted.
EXHIBIT C
(Proprietary Information and Inventions Agreement)
Intentionally
omitted.