Exhibit 99.6
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of August
15, 2001 and effective as of November 30, 1996 (the "Effective Date") by and
between IGEN International, Inc., a Delaware corporation having its principal
place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, residing at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Consultant").
WHEREAS, Company and Consultant acknowledge and confirm that Consultant has
been providing consulting services to Company on an ongoing basis since the
Effective Date;
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. ENGAGEMENT OF CONSULTANT
Company hereby engages Consultant to perform consulting services as an
independent contractor to Company.
2. SERVICES AND COMPENSATION; CONFIDENTIALITY
2.1 Request. From time to time during the Period of Consultancy (as
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defined below), Company may request Consultant to provide certain services (the
"Services") to Company, which Services may include advice and assistance in
areas such as the Company's operations, third party collaborative efforts and
internal and external programs and projects. However, Company has no obligation
to request Consultant to perform any Services, and if such a request is made by
Company, Consultant has no obligation to agree to perform such Services.
2.2 Performance. Upon agreement between Consultant and Company as to the
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scope of the Services and other related matters, Consultant will perform the
Services in a timely manner consistent with industry standards for similar
professional consulting work. Consultant may in his sole discretion elect to
provide Services under this Agreement through JW Consulting Services, L.L.C.
("JWCS"), a Delaware limited liability company which is owned solely by
Consultant and of which
he is the sole employee, or through another entity which is owned solely by
Consultant and of which he is the sole employee (such other entity and JWCS are
referred to individually and together as "JW Affiliate"). To the extent any
Services are rendered under this Agreement by JW Affiliate, (i) unless Company
and Consultant otherwise agree, such Services shall be provided solely by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ as an employee of JW Affiliate, and (ii) JW Affiliate shall agree to
be bound by the terms and conditions hereof.
2.3 Period of Consultancy. The initial "Period of Consultancy" under this
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Agreement shall commence on the Effective Date and end as of August 15, 2004.
This Agreement shall be automatically renewed for an additional 36-month period
on August 15, 2004 and every three years thereafter (each such date, a "Renewal
Date"), unless either Company or Consultant gives contrary written notice to the
other party hereto not less than 90 days before any such Renewal Date. The
initial Period of Consultancy and all such additional renewal periods are
collectively referred to herein as the Period of Consultancy.
2.4 Compensation. As sole compensation for the performance of the
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Services, Company (a) has granted to Consultant (i) on May 9, 1997 pursuant to
Company's 1994 Stock Option Plan (the "1994 Plan"), a ten-year nonqualified
stock option to purchase 180,000 shares of the common stock of Company, at an
exercise price equal to the fair market value of a share of such common stock on
the date of grant, exercisable as to 36,000 shares on November 30, 1996 and
becoming exercisable in 16 equal installments of 9,000 shares each on the last
day of each full month thereafter (the "1997 Option") and (ii) effective August
1, 2000 pursuant to the 1994 Plan, a ten-year nonqualified stock option to
purchase 75,000 shares of the common stock of Company, at an exercise price
equal to the fair market value of a share of such common stock on the date of
grant, exercisable as to 15,000 shares on August 1, 2001 and becoming
exercisable in 16 equal installments of 3,750 shares on each October 31/st/,
January 31/st/, April 30/th/, and July 31/st/ thereafter (the "2000 Option" and
together with the 1997 Option, the "Options"); (b) will pay Consultant during
the Period of Consultancy a consulting retainer fee of $1.00 per year, the
sufficiency and receipt of which are hereby acknowledged, and (c) will pay
Consultant during the Period of Consultancy a consulting fee, or otherwise
compensate Consultant, if and to the extent necessary, as shall be agreed upon
by Company and
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Consultant at the time particular Services are requested by Company and agreed
to by Consultant. Consultant and Company expressly confirm and agree that for
purposes of the Options and the 1994 Plan, any Services rendered to Company by
Consultant as an employee of, and through, JW Affiliate pursuant to this
Agreement shall be deemed to be Services rendered directly by Consultant to
Company. Any reasonable expenses paid or incurred by Consultant or JW Affiliate
in connection with Consultant's performance of the Services will be the sole
responsibility of Company.
2.5 Confidentiality.
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2.5.1 Company Confidential Information. "Company Confidential
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Information" shall mean any and all (a) information disclosed by Company to
Consultant hereunder in the Diagnostic Field (as defined in Section 1.3 of the
Joint Venture Agreement, entered into as of November 30, 1995, as amended
("Joint Venture Agreement"), among Company, Meso Scale Technologies, LLC.
("MST") and Meso Scale Diagnostics, LLC. ("MSD")), and (b) business, financial
and operational data of Company, in each case set forth above that directly
concerns Services performed by Consultant hereunder; provided, however, that
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such Services have been agreed to in writing by Company and Consultant; and
provided further, however, that such disclosure of Company Confidential
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Information is made only in written or photographic form or on magnetic or other
media (including an electronic transmission (e.g., e-mail) that is reproduced in
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paper form) which shall be clearly and conspicuously marked as "confidential" or
"proprietary" information.
2.5.2 Term of Confidentiality. During the term of this Agreement and
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for three (3) years after the termination or expiration of this Agreement,
Consultant shall hold confidential the Company Confidential Information, and
shall not use it or disclose it to any third party without prior written consent
of Company, except as permitted by this Section 2.5.
2.5.3 Use of Company Confidential Information. Consultant may use and
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disclose the Company Confidential Information (a) in the course of performing
the Services hereunder, (b) to the extent that such Company Confidential
Information is also the "Confidential Information" (as defined in Section 5.1 of
the Joint Venture Agreement) of Company or MSD, subject to the terms of the
Joint Venture Agreement, (c) in connection with the business and/or operations
of MSD, subject to the terms of the Joint Venture Agreement, or (d) to the
extent that Consultant is
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otherwise permitted to use and disclose such Company Confidential Information
pursuant to, or in order to exercise the rights granted under, the (i) Joint
Venture Agreement, (ii) License Agreement, entered into as of November 30, 1995,
among Company, MST and MSD, (iii) IGEN/MSD License Agreement, entered into as of
November 30, 1995, among Company, MST and MSD, as amended, (iv) MSD/MST
Sublicense Agreement, entered into as of November 30, 1995, among Company, MST
and MSD, as amended, or (v) MSD Limited Liability Company Agreement, entered
into as of November 30, 1995, between Company and MST, as amended.
2.5.4 Exceptions. The foregoing restrictions in Sections 2.5.1, 2.5.2
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and 2.5.3 hereof shall not apply to:
(a) information which, at the time of disclosure, is in the public
domain;
(b) information which, after disclosure, becomes part of the public
domain by publication or otherwise, other than by a breach of
this Agreement;
(c) information which Consultant can establish was in its
possession at the time of disclosure by Company;
(d) information which Consultant can establish that it received
from a third party who had a right to disclose it; and
(e) information which Consultant is obligated to disclose by law or
in legal proceedings; provided, however, that Consultant shall
provide prompt notice of any need to make such disclosure and
cooperate with Company in obtaining available protective
orders, if any, relating thereto.
3. RELATIONSHIP OF PARTIES
3.1 Independent Contractor. In connection with the provision of Services
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under this Agreement, Consultant shall act as an independent contractor and not
as an agent or employee of, and shall have no authority to bind, Company by
contract or otherwise. Consultant will perform the Services under the general
direction of Company, but Consultant will determine, in Consultant's sole
discretion, the manner and means by which the Services are accomplished, subject
to the requirement that Consultant shall at all times comply with applicable
law. Company has no right or authority to control the manner or means by which
the Services are accomplished.
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3.2 Conflicts of Interest. Company recognizes that Consultant, or any
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affiliate or associate of Consultant, may be or may become engaged in similar
work on its or their own behalf or for other parties, and Company hereby agrees
that no provision of this Agreement will be construed to preclude such work by
Consultant, or any affiliate or associate of Consultant. Company further
recognizes that Consultant, or any affiliate or associate of Consultant, may be
or may become engaged in activities that are directly or indirectly in
competition with Company, and Company hereby agrees that no provision of this
Agreement will be construed to preclude such activities by Consultant, or any
affiliate or associate of Consultant. Company and Consultant acknowledge that
Consultant (a) is employed as President and Chief Executive Officer of MSD
pursuant to an Employment Agreement, dated as of August 15, 2001, among MSD,
Company, MST and Consultant, and (b) is an affiliate of MST.
4. TERMINATION AND EXPIRATION
4.1 Termination. This Agreement and the Period of Consultancy shall not be
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terminated before the expiration of the Period of Consultancy other than by the
written consent of both of the parties hereto. In the event that Company
breaches this provision, Company shall be liable to Consultant for any and all
loss, cost or expense incurred by Consultant as a result of such breach,
including, without limitation, compensatory damages for any termination of the
Options (or other stock options that may be granted to Consultant) that occurs
as a result of such breach.
4.2 Effect of Termination. In the event of termination of this Agreement
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pursuant to Section 4.1, this Agreement shall forthwith become void and have no
effect and there shall be no liability on the part of the parties hereto except
that such termination will not relieve (a) Consultant from his obligations under
Section 2.5 and Section 3.1, (b) Consultant or Company from any liability for
any breach of this Agreement, or (c) Company from any liability or obligations
under Section 2.4 and Section 4.1 (to the extent applicable), all of which shall
survive termination of this Agreement.
4.3 Effect of Expiration. Upon the expiration of the Period of
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Consultancy, each party will be released from all obligations to the other
arising after the date of expiration, except that expiration of the Period of
Consultancy will not relieve (a) Consultant from his obligations under Section
2.5 and Section 3.1, (b) Consultant
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or Company from any liability arising from any breach of this Agreement, or (c)
Company from any liability or obligations under Section 2.4 (to the extent
applicable), all of which shall survive expiration of the Period of Consultancy.
5. GENERAL
5.1 Assignment. Subject to Section 2.2 hereof, neither party may transfer
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or assign any of its rights, or delegate any of its duties, under this
Agreement, either in whole or in part (including by merger or operation of law),
without the prior written consent of the other party. Without limiting the
availability of any remedies at law or in equity, subject to Section 2.2 hereof,
any attempted transfer, assignment or delegation without the prior written
consent of the other party will be void.
5.2 Governing Law; Jurisdiction; Severability. This Agreement will be
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governed by and construed in accordance with the laws of the State of Maryland
excluding that body of law pertaining to conflict of laws. The parties hereby
consent to the non-exclusive jurisdiction of the state and federal courts of the
State of Maryland. If any provision of this Agreement is for any reason found to
be unenforceable, the remainder of this Agreement will continue in full force
and effect.
5.3 Notices. Any notices under this Agreement will be sent by certified or
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registered mail, return receipt requested, to the address specified above or
such other address as the party specifies in writing. Such notice will be
effective upon its mailing as specified.
5.4 Complete Understanding; Modification. This Agreement constitutes the
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complete and exclusive understanding and agreement of the parties and supersedes
all prior understandings and agreements, whether written or oral, with respect
to the subject matter hereof. Any waiver, modification or amendment of any
provision of this Agreement will be effective only if in writing and signed by
the parties hereto.
5.5 Counterparts. This Agreement may be executed and delivered in one or
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more counterparts, each of which when executed and delivered shall be deemed to
be an original but all of which when taken together shall constitute one and the
same Agreement.
5.6 Third Party Beneficiaries. The provisions of this Agreement shall not
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confer any rights or remedies upon any person or entity, other than the parties
hereto, and their permitted assigns and successors in interest.
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5.7 Effective Date. This Agreement shall be effective and a valid and
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binding obligation of each of Consultant and Company, enforceable in accordance
with its terms, as of the Effective Date.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first set forth above.
IGEN INTERNATIONAL, INC. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President and CFO
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