Exhibit 10.16
Independent Contractor Agreement For Consulting Services
This Independent Contractor Agreement (the "Agreement") is made and entered
into as of April 1, 2001, by and between OXiGENE, Inc. (the "Company"), and
David Chaplin Consultants, Ltd. (the "Consultant").
WITNESSETH:
WHEREAS, the Company desires to engage the Consultant to perform certain
professional services specified herein; and the Consultant desires to be engaged
as an independent contractor in accordance with the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Company and the Consultant,
the parties agree as follows:
1. Scope of Services and Responsibilities of the Consultant
(a) The Consultant shall provide the Company with the following Consulting
Services:
(i) The Consultant shall provide monitoring and reporting services with
respect to the Company's existing research programs established in connection
with Bristol-Meyers Squibb, the University of Lund, and Baylor University. (ii)
The Consultant shall provide monitoring and reporting services with respect to
other contracted research and development personnel in the Company's
laboratories outside of the United States (iii) The Consultant shall review
pertinent scientific journals and other academic literature and trade
publications and prepare reports to the Company concerning scientific
developments and other information pertinent to the Company's existing and
prospective business (b) The Consultant shall perform the Consulting Services
entirely outsideof the United States and shall perform no services for the
Company except those called for by this Agreement or any subsequent modification
thereof. The performance by the Consultant of any Consulting Services within the
United States shall constitute a material breach of this Agreement, and the
Company shall have no obligation to compensate the Consultant for any Consulting
Services performed within the United States Consultant shall perform no services
for the Company except as is provided herein. The Consultant, in performing the
Consulting Services, shall have no authority to establish Company policy or
business objectives, nor to bind the Company, nor to hire or fire any Company
employee. The Consultant shall maintain sole control and discretion as to
exactly when the Consulting Services are performed. However, the Consultant
shall all devote as much time as is necessary for the provision of Consulting
Services to the Company's reasonable satisfaction, and shall satisfy all
reasonable deadlines imposed by the Company for the provision of particular
services and shall meet (whether in person, by telephone or by e-mail) with the
official(s) designated by the Company to monitor and evaluate the Consulting
Services. (c) In performing services under this Agreement, the Consultant will
(i) use diligent efforts and professional skills and judgment; (ii) perform
professional services in accordance with recognized professional standards; and
(iii) comply with the by-laws, rules, policies and regulations of the Company
and any of its affiliates and/or subsidiaries to which the Consulting Services
are provided. (d) The Consultant shall comply fully with all applicable
employment and labor laws, regulations and rules relating to the services to be
performed by the Consultant.
2. Independent Contractor Status
It is understood and agreed that the Consultant will act solely as an
independent contractor, and nothing in this Agreement shall be construed to
render the Consultant or any owner, employee, or agent of the Consultant an
employee of the Company or to entitle the Consultant or any owner, employee, or
agent of the Consultant to participate in any Company benefit plan. The
Consultant, therefore, agrees to secure, pay for and maintain all insurances,
licenses and/or permits necessary to perform any of the services required under
this Agreement. The Consultant understands and recognizes that, except insofar
as the Company may expressly delegate to Consultant authority to bind,
represent, or speak for the Company with respect to specific projects, clients
or prospective clients of the Company, the Consultant is not an agent of the
Company and has no authority to and shall not bind, represent or speak for the
Company for any purpose whatsoever. , The Company will not withhold any
employment taxes on the Consultant's behalf. The Consultant shall be solely
responsible for all taxes imposed on the Consultant by reason of Consultant's
receipt of any fees payable hereunder.
3. Fees To Be Paid To Consultant
(a) In consideration of the Consulting Services performed by the
Consultant, the Company agrees to pay the Consultant fees for projects to be
undertaken as agreed between the company and consultant:
The Consultant shall be responsible for providing all equipment and
facilities necessary for the provision of the Consulting Services, however, the
Company shall reimburse Consultant for expenses which have been approved in
advance by the Company in writing.
The Company shall pay fees in equal monthly installments, and shall
reimburse incidental expenses, subject to Consultant's submission of monthly
invoices, as provided in Paragraph 3(b) below.
(b) The Consultant shall maintain records of time spent providing the
Consulting Services and shall, on the last day of each month or the first
business day thereafter, submit to the designated Company representative an
invoice accompanied by a statement reflecting the dates on which Consulting
Services were performed during the preceding month, a description of the
services provided on each day Consulting services were performed, a
certification that all consulting services were performed ouside of the United
States, and a description of pre-approved expenses for which Consultant seeks
reimbursement. The Company shall pay such invoices within 30 days of receipt.
The Company shall have no obligation to make payment unless the Consultant is in
compliance with all of Consultant's covenants, agreements, and warranties
hereunder.
4. Termination
4.1 The Company may, upon giving the Consultant sixty (60) days' written
notice, terminate this Agreement, subject to all provisions of this Agreement.
Notwithstanding the foregoing, the Company may terminate this Agreement for
Cause (as defined in Section 6.5 hereof) without prior notice. The Consultant
may, upon giving the Company thirty (180 days' notice, terminate this Agreement.
If the Consultant terminates this Agreement following a material breach of the
Agreement by the Company, which breach remains uncured ten (10) days after
written notice thereof is received by the Company (a "Termination with Good
Reason"), the Consultant shall be compensated as if this Agreement was
terminated by the Company without Cause.
4.2 If this Agreement is terminated by the Company other than for Cause (as
defined below) or in the event of a Termination with Good Reason, then the
Company pay the Consultant as follows:
(a) as soon as practicable after the effective date of the termination of
this Agreement ("Termination Date") a lump sum cash payment equal to any unpaid
fees due for such Consulting Services as may have been rendered prior to the
Termination Date ; plus
(b) a sum of $120,000 or
(c)If, following any Change in Control (as such term is defined in the
Stock Plan) and prior to expiration of one (1) year from the date of such Change
in Control, (1) Executive's employment is terminated by OXiGENE (other than for
Cause) or in the event of a Termination with Good Reason, then
1) OXiGENE shall provide the following to the Executive:
(i) the Unpaid Salary, as soon as practicable after the Termination Date;
plus
2) an amount equal to twelve (12) months of Executive's then current Base
Salary.
4.3 Except as otherwise set forth in this Paragraph 4, all obligations of
the Company under this Agreement shall cease if the Company terminates this
Agreement for Cause or the Consultant terminates this Agreement other than in a
Termination with Good Reason. Upon such termination, the Consultant shall be
entitled to receive in a lump sum cash payment as soon as practicable after the
Termination Date an amount equal to any unpaid fees due for such Consulting
Services as may have been rendered prior to the Termination Date (.
4.4 The foregoing payments shall constitute the exclusive payments due the
Consultant upon termination of this Agreement.
4.5 For the purposes of this Agreement, the term "Cause" shall mean any of
the following:
(a) the (i) continued failure by the Consultant to provide the Consulting
Services in a manner reasonably satisfactory to the Company if the
Consultant fails to remedy that failure within ten (10) days of the
Company's written notice to the Consultant of such breach; or (ii) material
breach of any other provision of this Agreement by the Consultant, if the
Consultant fails to remedy that breach within ten (10) days of the
Company's written notice to the Consultant of such breach; or
(b) any act of fraud, material misrepresentation or material omission,
misappropriation, dishonesty, embezzlement or similar conduct against the
Company or any affiliate, or conviction of any owner, agent, or employee of
the Consultant for a felony or any crime involving moral turpitude.
5. No Solicitation; Confidentiality; Work for Hire
5.1 For a period of one year after the Termination Date, neither the
Consultant nor any Consultant-Controlled Person (as defined below) will, without
the prior written consent of the Company's Board of Directors, directly or
indirectly solicit for employment, or make an unsolicited recommendation to any
other person that it employ or solicit for employment any person who is or was,
at any time during the nine (9) month period prior to the Termination Date, an
officer, executive or key employee of the Company or of any affiliate of the
Company. As used in this Agreement, the term "Consultant-Controlled Person"
shall mean any company, partnership, firm or other entity as to which the
Consultant or any owner, agent, or employee of the Consultant possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the foregoing, this
provision shall not apply to the solicitation of individuals who have, for at
least one (1) year prior to the Termination Date, not been employed by the
Company.
5.2(a) The Consultant acknowledges that, through the performance of the
Consulting Services specified in this Agreement, the Consultant has, and will
have, possession of important, confidential information and knowledge as to the
business of the Company and its affiliates, including, but not limited to,
information related to drugs and compounds developed or under development by the
Company, financial results and projections, future plans, the provisions of
other important contracts entered into by the Company and its affiliates,
possible acquisitions and similar information. The Consultant agrees that all
such knowledge and information constitutes a vital part of the business of the
Company and its affiliates and is by its nature trade secrets and confidential
information proprietary to the Company and its affiliates (collectively,
"Confidential Information"). The Consultant agrees that it shall not, at any
time, whether during the term of this Agreement or following termination of this
Agreement for any reason, whether by the Company or by the Consultant, divulge,
communicate, furnish or make accessible (whether orally or in writing or in
books, articles or any other medium) to any individual, firm, partnership or
corporation, any knowledge or information with respect to Confidential
Information directly or indirectly useful in any aspect of the business of the
Company or any of its affiliates. As used in the preceding sentence,
"Confidential Information" shall not include any knowledge or information that:
(i) is or becomes available to others, other than as a result of breach by the
Consultant or any of the Consultant of this Section 5.2; (ii) was available to
the Consultant on a nonconfidential basis prior to its disclosure to the
Consultant in connection with the performance of the Consulting Services; (iii)
becomes available to the Consultant on a nonconfidential basis from a third
party (other than the Company, any affiliate or any of its or their
representatives) who is not bound by any confidentiality obligation to the
Company or any affiliate; (iv) was known by the Consultant prior to the
effective date of this Agreement as evidenced by the Consultant's pre-existing
written records; (v) was not maintained as confidential information by the
Company; (vi) is otherwise information known or available within the Company's
industry; or (vii) is information that is not otherwise entitled to protection
under applicable law.
(b) All memoranda, notes, lists, records and other documents or papers (and
all copies thereof), including such items stored in computer memories, on
microfiche or by any other means, made or compiled by or on behalf of the
Consultant or made available to the Consultant relating to the Company are and
shall be and remain the Company's property and shall be delivered to the Company
promptly upon the termination of this Agreement or at any other time on request
and such information shall be held confidential by the Consultant after the
termination of this Agreement for any reason, whether by the Company or by the
Consultant.
5.3 The Consultant grants the Company and each affiliate of the Company, as
appropriate, all rights in and to the contribution made by the Consultant to any
projects or matters on which the Consultant worked during the period for which
this agreement is in force. The Consultant acknowledges that each such matter
and the contribution made by the Consultant thereto shall constitute a work made
for hire within the meaning of the United States copyright law and other
applicable laws, The Company reserves all rights with respect to information
relating to the Company's products, including, but not limited to, the right to
apply for patents. The Consultant agrees to cooperate fully with the Company and
to perform all acts deemed necessary or desirable by the Company (whether before
or after the Termination Date), at the Company's cost and expense, in order to
more full vest in the Company or to establish as a matter of record all
ownership rights in projects or matters created through the Consultant's
services hereunder and in those rights transferred by the Consultant to the
Company, and to secure patent, copyright, or other protections in the United
States or any foreign countries, including, without limitation, the execution of
any instruments and the giving of evidence and testimony, without further
compensation beyond the Consultant's agreed compensation.
5.4 The provisions contained in this Section 5 as to the time periods,
scope of activities, persons or entities affected, and territories restricted
shall be deemed divisible so that, if any provision contained in this Section 5
is determined to be invalid or unenforceable, such provisions shall be deemed
modified so as to be valid and enforceable to the full extent lawfully
permitted.
5.5 The Consultant agrees that the provisions of this Section 5 are
reasonable and necessary for the protection of the Company and that they may not
be adequately enforced by an action for damages and that, in the event of a
breach thereof by the Consultant or any Consultant-Controlled Person, the
Company shall be entitled to apply for and obtain injunctive relief in any court
of competent jurisdiction to restrain the breach or threatened breach of such
violation or otherwise to enforce specifically such provisions against such
violation, without the necessity of the posting of any bond by the Company. The
Consultant further covenants and agrees that if he shall violate any of his
covenants under this Section 5, the Company shall be entitled to an accounting
and repayment of all profits, compensation, commissions, remuneration or other
benefits that the Consultant directly or indirectly has realized and/or may
realize as a result of, growing out of or in connection with any such violation.
Such a remedy shall, however, be cumulative and not exclusive and shall be in
addition to any injunctive relief or other legal or equitable remedy to which
the Company is or may be entitled.
6. Indemnification
The Consultant shall indemnify and hold harmless the Company, its
employees, officers and agents from and against any and all claims, demands,
losses, damages or expenses (including attorneys' fees) that arise as a result
of Consultant's performance or non-performance of the Consulting Services or
relate in any way to Consultant's representations and obligations herein.
7. Attorney's Fees and Expenses
The Company and the Consultant agree that in the event of litigation
arising out of or relating to this Agreement, the prevailing party shall be
entitled to reimbursement from the other party of the prevailing party's
reasonable attorney fees and expenses.
8. Amendments
This Agreement may not be altered, modified or amended except by a written
instrument signed by each of the parties hereto.
9. Assignment
Neither this Agreement nor any of the rights or obligations hereunder shall
be assigned or delegated by any party hereto without the prior written consent
of the other party provided, that this Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and assigns whether by
merger, operation of law, consolidation, purchase, or other acquisition of
controlling interest in the business of the Company.
10. Waiver
Waiver by any party hereto of any breach or default by any other party of
any of the terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived.
11. Severability
In the event that any one or more of the provisions of this Agreement shall
be or become invalid, illegal or unenforceable in any respect the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
12. Notices
All notices and other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Consultant:
David Chaplin Consultants, Ltd.
14,Plowden Park
Aston Rowant
Watlington OX49 5SX
Oxfordshire
If to the Company:
OXiGENE Inc.
321 Arsenal Street
Watertown MA
Attention: Bjorn Nordenvall
or to such other address or such other person as the Consultant or the Company
shall designate in writing in accordance with this Section 11, except that
notices regarding changes in notices shall be effective only upon receipt.
13. Headings
Headings to Sections in this Agreement are for the convenience of the
parties only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
14. Governing Law; Waiver of Jury Trial
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts without reference to the principles of conflict of laws. Each of
the parties hereto consents to the jurisdiction of the federal and state courts
of the Commonwealth of Massachusetts in connection with any claim or controversy
arising out of or connected with this Agreement, and said courts shall be the
exclusive forum for the resolution of any such claim or controversy. Service of
process in any such proceeding may be made upon each of the parties hereto at
the address of such party as determined in accordance with Section 11 of this
Agreement, subject to the applicable rules of the court in which such action is
brought. Both parties further agree that any action, demand, claim or
counterclaim shall be resolved by a judge alone, and both parties hereby waive
and forever renounce the right to a trial before a civil jury.
15. All Other Agreements Superseded
This Agreement contains the entire agreement between the Consultant and the
Company with respect to all matters relating to the Consulting Services and, as
of the date hereof, will supersede and replace any other agreement, written or
oral, between the parties relating to the Consulting Services.
IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be executed as of the date first above written.
David Chaplin Consultants, Ltd.
By: /s/ David Chaplin
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David Chaplin
OXiGENE Inc.
By: /s/ Frederick Driscoll
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Name: Frederick Driscoll