Exhibit 10.16
FORM OF SCIENTIFIC ADVISORY BOARD AGREEMENT
THIS AGREEMENT is made and entered into by and between [ ] an
individual ("Consultant"), whose address is set forth on the last page below and
EXACT Laboratories, Inc., a Delaware corporation (the "Company"), with offices
in Maynard, MA.
The Company and Consultant agree as follows:
SECTION 1. SERVICES. The Company hereby engages Consultant to provide
to the Company, and Consultant agrees to provide to the Company under the terms
and conditions of this Agreement, the consulting services described on Exhibit A
attached hereto and incorporated by this reference (hereinafter the "Services")
with respect to the Consultant's field of expertise set forth on Exhibit A.
Consultant shall perform the Services in a competent and professional manner.
SECTION 2. STOCK OPTION AND COMPENSATION. Subject to approval by the
board of directors, and as consideration for the Consultant's service as a
member of the Scientific Advisory Board, the Company will grant the Consultant
an option to purchase _____________ shares of Common Stock of the Company at an
exercise price of________ per share. The option will be subject to a vesting
schedule and to the terms of the Company's option plan and option agreement. The
Company anticipates that the option will become exercisable for approximately
33-1/3% of the shares on each anniversary of this agreement, contingent upon
continued service as a member of the Scientific Advisory Board.
The Company agrees to compensate the Consultant at the rate of
___________ per day of work agreed to in advance and under the Company's
direction. The company guarantees a minimum of _______ days of consulting per
year, payable quarterly over a period of _________years contingent upon
continued service as a member of the Scientific Advisory Board.
SECTION 3. EXPENSES. The Company shall reimburse Consultant for
reasonable and necessary out-of-pocket expenses incurred by Consultant in the
performance of the Services, provided such out-of-pocket expenses are approved
in advance by an officer of the Company, and are supported by reasonable
documentation. Such expenses shall include travel expenses of Consultant to the
Company's offices. The Company and Consultant acknowledge that any limitations
on the expenses which can be incurred by Consultant pursuant to this Section 3
are set forth on Exhibit A hereto.
SECTION 4. INDEPENDENT CONTRACTOR. Consultant is not, nor shall
Consultant be deemed to be at any time during the term of this Agreement, an
employee of the Company, and therefore Consultant shall not be entitled to any
benefits provided by the Company to its employees (including such items as
health and disability benefits). Consultant's status and relationship with the
Company shall be that of an independent contractor. Consultant shall not state
or imply, directly or indirectly, that Consultant is empowered to bind the
Company without the Company's prior written consent. Nothing herein shall
create, expressly or by implication, a partnership, joint venture or other
association between the parties. Consultant will be solely responsible for
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payment of all charges and taxes arising from his or her relationship to the
Company as a consultant.
SECTION 5. CANCELLATION OF SERVICES. Either party may at any time
terminate the performance of all or any portion of the Services to be provided
hereunder upon _________ days prior written notice to the other stating its
intention to terminate and specifying the portion of the Services to be
terminated and the date upon which such termination shall be effective.
SECTION 6. TERM OF AGREEMENT; TERMINATION. The term of this Agreement
and the Consultant's Services hereunder shall commence as of the date of this
Agreement and unless terminated earlier as a result of the death, physical
incapacity or mental incompetence of the Consultant, which shall result in
automatic termination, or pursuant to Section 5 of this Agreement, it shall
continue in effect for a period of ________ years (the "Initial Term"). The term
of this Agreement shall be extended beyond the Initial Term for one or more
additional one (1) year periods (individually, an "Additional Term"), unless
either party desires not to extend the term of this Agreement for an Additional
Term, in which case such party shall give the other party at least thirty (30)
days' prior written notice of the intention not to extend the Agreement for an
Additional Term. Except as otherwise explicitly provided herein, the provisions
of Sections 8 through 15 of this Agreement shall survive the termination or
expiration of this Agreement for any reason.
SECTION 7. WARRANTIES OF CONSULTANT. Consultant represents to the
Company that (i) with respect to any information, know-how, knowledge or data
disclosed by Consultant to the Company in the performance of this Agreement,
Consultant has the full and unrestricted right to disclose the same; and (ii)
Consultant is free to undertake the Services required by this Agreement, and
there is, and will be, no conflict of interest between Consultant's performance
of this Agreement and any obligation Consultant may have to other parties.
SECTION 8. COVENANTS OF CONSULTANT. Consultant agrees that during the
term of this Agreement, Consultant shall not become employed by, advise, become
associated with, or perform consulting services for any commercial, for-profit
enterprise that is, or, as a result of such activities, would become, a
competitor in the Company's field of business or otherwise would create a
conflict of interest for Consultant with Consultant's obligations to the
Company.
SECTION 9. CONFIDENTIALITY. Consultant agrees to hold all Confidential
Information (as hereinafter defined) of the Company (or other parties whose
Confidential Information the Company has in its possession under obligations of
confidentiality) in trust and strict confidence and, except as may be authorized
by the Company in writing, shall not use for any purpose other than the
performance of the Services under this Agreement, nor disclose such Confidential
Information to any person, association, company, entity or other organization
(whether for profit or not for profit).
As used herein, "Confidential Information" shall mean all knowledge and
information which the Consultant has acquired or may acquire as a result of, or
related to, his or her relationship with the Company, including but not limited
to, information concerning the Company's business, finances, operations,
strategic planning, research and development activities, products, molecules,
organisms, laboratory materials, prototypes, cell lines, inventions,
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research developments, improvements, processes, trade secrets, services, cost
and pricing policies, formulae, diagrams, schematics, notes, data, memoranda,
methods, know-how, techniques, inventions, and marketing strategies.
Confidential Information shall also include information received by the Company
from third parties under an obligation of confidentiality. Notwithstanding the
foregoing sentence, but subject to Section 10 hereof, such Confidential
Information does not include (i) information which is or becomes publicly
available (except as may be disclosed by the Consultant in violation of this
Agreement), (ii) information acquired by the Consultant from a third-party
source other than the Company or any of its employees, consultants or
shareholders, which source legally acquired such information under no obligation
of confidentiality, or (iii) information of a general nature and specifically
information regarding the field of cancer diagnosis known to the Consultant
prior to advising the Company or acquired by the Consultant during the term
hereof by reason of his or her other business activities.
SECTION 10. OWNERSHIP OF WORK PRODUCT. Consultant shall communicate in
writing and disclose to the Company promptly and fully all concepts, inventions,
formulae, molecules, organisms, trade secrets, know-how, technical or business
innovations, writings or other works of authorship and patents or patent rights
created, reduced to practice, or conceived by Consultant during the term of this
Agreement or for six (6) months thereafter (whether or not patentable or
copyrightable and whether made solely by Consultant or jointly with others)
which result from the Services that Consultant performs for the Company or which
result from information derived from the Company or its employees, agents or
other consultants (all of the foregoing herein collectively and individually
called "Works").
The Works shall be and remain the sole and exclusive property of the
Company or its nominees whether or not patented or copyrighted and without
regard to any termination of this Agreement.
The Works are being created at the instance of the Company and shall be
deemed to be "works made for hire" under the United States copyright laws,
unless such laws are inapplicable by their specific terms. If such laws are
inapplicable or in the event that the Works, or any part thereof, are determined
by a court of competent jurisdiction not to be a work made for hire under the
United States copyright laws, this Agreement shall operate as an irrevocable and
unconditional assignment by Consultant to the Company of all of Consultant's
right, title and interest (including, without limitation all rights in and to
the copyrights throughout the world, including the right to prepare derivative
works and the right to all renewals and extensions) in the Works in perpetuity.
The Company shall have the right to use the whole Works, any part or parts
thereof, or none of the Works, in its sole discretion. All original material
submitted by Consultant to the Company as part of the Works or as part of the
process of creating the Works shall be the property of the Company whether or
not the Company uses such materials. No rights or licenses are reserved to or
implied for Consultant in the Works or any such materials. At the Company's
request, Consultant shall execute documents evidencing or in connection with the
Company's ownership or registration of the Works, including copyright ownership
or registration, in accordance with the terms of this Agreement.
The Consultant agrees to cooperate with the Company to perfect title to
the Works, to execute or provide upon request any assignments, applications for
Letters Patent of the United States, Letters Patent, any legal equivalent
thereof of any foreign country or any other lawful documents and likewise to
perform any other lawful
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acts which may be deemed necessary to secure fully the Works to the Company, its
successors, assigns, and legal representatives, but at its or their expense and
charge, including the execution of applications for patents in foreign
countries, and the execution of substitution, reissue, divisional or
continuation applications, and/or. preliminary or other statements and the
giving of testimony in any interference or other proceeding in which the Works
or any application or patent directed thereto may be involved.
If the Company is unable, after reasonable effort, to secure
Consultant's signature on any letters patent, copyright or other analogous
protection relating to the Works, Consultant hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Consultant's
agent and attorney-in-fact, to act for and in his/her behalf and stead to
execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright and other analogous protection thereon with the same legal
force and effect as if executed by Consultant.
SECTION 11. THE COMPANY DATA. Any data or other materials furnished by
the Company for use by Consultant in connection with the Services shall remain
the sole property of the Company and will be held in trust and confidence by
Consultant in accordance with Section 9.
The Company may obtain the return of the Company data or other
materials furnished to Consultant upon written notice to Consultant requesting
such return, and in any event Consultant shall promptly return such data or
materials upon termination of this Agreement.
SECTION 12. ADVERTISING. Consultant shall not in any way or in any form
publicize or advertise in any manner the fact that it is performing the services
called for by this Agreement without the prior written consent of the Company.
SECTION 13. PUBLICATIONS. So long as Consultant is subject to a
nondisclosure obligation under Section 9 hereof, Consultant shall deliver, at
least sixty (60) days prior to submitting for publication to any academic
journal or periodical the results of research relating to fields of research to
which the Services shall then pertain, to the Company a final form of the
manuscript to be submitted. Consultant shall cooperate in a timely manner with
the Company in taking any and all actions necessary to perfect copyright and
patent protection with respect to, or to protect the Company's interest in, any
Works that the Company may deem to be disclosed in such manuscript.
SECTION 14. RESTRICTION ON SOLICITATION. During any period in which the
Consultant renders consulting services to the Company and for a period of one
year thereafter, the Consultant shall not recruit or otherwise solicit, entice
and induce any employees of the Company or any of its subsidiaries or affiliates
to terminate their employment with, or otherwise cease their relationships with
the Company or any of its subsidiary or affiliates.
SECTION 15. MISCELLANEOUS. This Agreement together with all exhibits
hereto, contains the entire understanding of the parties with respect to the
matters contained herein, and supersedes all proposals and agreements, written
or oral, and all other communications between the parties relating to the
subject matter of this Agreement. This Agreement shall be governed by
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and construed in accordance with the laws of The Commonwealth of Massachusetts
without regard to its conflict of laws rules. All disputes under this Agreement
must be adjudicated in the courts located in Massachusetts in which jurisdiction
and venue is hereby deemed proper. This Agreement may not be modified or amended
except in writing signed or executed by Consultant and the Company. In the event
any provision of this Agreement is held to be unenforceable or invalid because
it is overbroad or too far reaching, such provision shall be deemed to be
revised so that it applies to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date last below written.
SCIENTIFIC ADVISOR:
NAME:
Signed: ____________________________________
Date: ____________________________________
Social Security Number: ___________________________
EXACT LABORATORIES INC:
BY: Xxxxxxx X. Xxxxxxx, President
Signed: ____________________________________
Date: ____________________________________
EXHIBIT A
1. Description of Services: See Attachment #1.
2. Fields of Expertise:
3. Limitations on Expenses:
The Company will reimburse you for reasonable expenses which you incurred at the
request of the Company for travel undertaken on its behalf.
ATTACHMENT #1
Description of consulting services:
(a) Scientific Advisory Board ("SAB") Membership
Attend and participate in meetings at least [ONE TO FOUR] times per
year.
Provide strategic scientific guidance to EXACT Laboratories regarding
product development programs.
Provide ideas and concepts for new product areas and make
recommendations on future scientific directions.
Provide contacts within the scientific community.
(b) Attend outside meetings and participate in telephone discussions. For
example:
Regulatory discussions.
Corporate development meetings.
Fund raising meetings.
(c) Recruiting.
Suggest candidates for key positions in the Company, consultants and
SAB members
