Exhibit 10.19
VERSICOR INC.
SCIENTIFIC FOUNDER AGREEMENT
In consideration of the retaining of Xxxxxxxxxxx X. Xxxxx as one of the
scientific founders (the "Scientific Founder") of Versicor Inc., a Delaware
corporation (the "Company"), and mutual promises of the parties hereunder, it is
agreed as follows:
1. The Company hereby retains the Scientific Founder, and the
Scientific Founder hereby agrees to serve as a member of the Company's
Scientific Advisory Board ("SAB") and to perform such consulting and advisory
services relating to the Business of the Company as the Company may from time to
time determine. The Scientific Founder agrees to serve as a director of the
Company's Board of Directors (the "Board") if elected by the stockholders and
the Board, as the case may be (such services on the SAB and the Board and
consulting and advisory services being herein referred to as the "Services").
The effective date for the commencement of the services shall be January 1,
1998.
As used herein, the "Business" of the Company shall mean the
activities of the Company in the research, development, manufacture, marketing,
license and sale of anti-infectious products for treating diseases caused by
fungi and bacteria. The Services shall not include operational or managerial
responsibilities, or Clinical Research (as defined in the Harvard University
Faculty of Medicine Policy on Conflicts of Interest and Commitment dated March
22, 1990, and as amended from time to time (the "Harvard Conflicts Policy")) or
the conduct of research externally that would ordinarily be conducted within the
institution with which the Scientific Founder is primarily affiliated (the
"Principal Institution"), nor shall the Services include any research conducted
at or utilizing the resources or facilities of the Principal Institution or any
Harvard-affiliated institution.
2. The Scientific Founder agrees to make himself available to render
the Services, at such time or times and location or locations as may be mutually
agreed, from time to time as requested by the Company. The Scientific Founder
agrees to devote his best efforts to performing the Services. The Scientific
Founder agrees that, at the request of the Company, he shall devote up to two
days per month (including attendance at meetings of the Board and the SAB) to
the performance of the Services, provided, however, that he shall not be
required to devote more time than is permitted by the policies or regulations of
the Principal Institution.
3. As soon as practicable after the commencement of each new year after
the execution of this Agreement, the Company agrees to provide a tentative
annual schedule (including location) of all Board and SAB meetings to the
Scientific Founder. The Scientific Founder shall use his best efforts to attend
all Board and SAB meetings. If the Scientific Founder's attendance at a Board
and/or SAB meeting would cause him undue hardship, the Company will use its best
efforts to allow the Scientific Founder to participate via telephone or
teleconference.
4. For the full, prompt and faithful performance of the Services, the
Company shall pay the Scientific Founder a fee at an annual rate of $50,000 (the
"Annual Fee"), payable in advance in equal monthly installments on the first day
of each month commencing January 1, 1998. In addition, the Company shall also
pay the Scientific Founder a laboratory gift (the "Lab Gift") at an annual rate
of $50,000 for the first year of Services and $25,000 each additional year
1.
thereafter, payable in equal quarterly installments on the last day of each
calendar quarter commencing January 1, 1998.
The Scientific Founder shall not be entitled to any additional
compensation or benefits, including, without limitation, social security,
unemployment, worker's compensation, medical or pension payments, or
holiday/vacation accrual or pay or other such benefits made available to
employees of the Company.
5. The Company shall promptly reimburse the Scientific Founder for
reasonable expenses incurred by him in the performance of the Services,
including first class roundtrip airfare, reasonable travel and lodging expenses,
and all other reasonable expenses incurred by him in connection with his
performance of his duties as a Scientific Founder. All reimbursements will be
made in accordance with the policy and practice of the Company.
6. The Company recognizes that the Scientific Founder's activities are
or will be subject to the rules and regulations of the Principal Institution,
now or in the future, and the Company agrees that the Scientific Founder shall
be under no obligation to perform Services if such performance would conflict
with such rules and regulations, or constitute a Category I activity under the
Harvard Conflicts Policy. The Scientific Founder agrees to provide a copy of the
Harvard Conflicts Policy, as well as any other relevant policies to which he may
be subject, to the Company. The Scientific Founder's obligations under this
Agreement shall be subject to his compliance with such rules and regulations of
the Harvard Conflicts Policy and, in the event of a conflict, such rules and
regulations shall control. In the event such rules and regulations shall in the
Company's opinion substantially interfere with the performance of Services, the
Company may terminate this Agreement upon ninety (90) days notice to the
Scientific Founder. Subject to the obligations of Paragraph 10, the Scientific
Founder shall not be restricted in any way in his ability to publish or formally
present research results, or provide expert commentary on any subject, relating
to his activities for the Principal Institution.
7. Subject to the provisions of paragraph 16, this Agreement shall
terminate on the third anniversary of the date hereof unless the Company
furnishes the Scientific Founder at least three (3) months prior written notice
of termination. Notwithstanding the foregoing, the Company may terminate this
Agreement, effective immediately upon receipt of written notice, if the
Scientific Founder breaches or threatens to breach any provision of this
Agreement.
Termination of this Agreement shall not relieve the Scientific
Founder or the Company of any obligations hereunder which by their terms are
intended to survive the termination of the Scientific Founder's association with
the Company, including but not limited to the obligations of Paragraphs 8, 10,
11 and 13. This Agreement may be extended beyond the third anniversary of the
date hereof by mutual written consent of the Scientific Founder and the Company.
If the Company terminates this agreement prior to such date, the Scientific
Founder shall be entitled to full payment for all expenses already incurred and
for Services already rendered prior to the date of termination of this
Agreement.
8. Except as set forth on Exhibit A, so long as this Agreement
continues in effect, the Scientific Founder shall not, without the approval of
the Company, (i) enter into a consulting arrangement with any other business
organized for profit in the field of anti-infectious agents, except arrangements
requested by his Principal Institution pursuant to which the Scientific
2.
Founder does not receive any form of compensation for services rendered, and
(ii) during such period and for a period of one year following termination of
this Agreement, alone or as a partner, officer, director, consultant, employee,
stockholder or otherwise, engage in any employment, consulting or business
activity or occupation that is or is intended to be competitive with the
Business of the Company, as being conducted at the time of termination;
provided, however, that the holding by the Scientific Founder of any investment
in any security shall not be deemed to be a violation of this Paragraph 8 if
such investment does not constitute over one percent (1%) of the outstanding
issue of such security. In the event that the Scientific Founder consults for a
for-profit entity (other than Healthcare Ventures) in an area permitted under
this Agreement, the Annual Fee due under Paragraph 3 of this Agreement shall be
reduced by the amount of compensation received by the Scientific Founder for the
permitted consulting.
9. It is understood and agreed that the Scientific Founder's
relationship to the Company is that of an independent contractor and that
neither this Agreement nor the Services to be rendered hereunder shall for any
purpose whatsoever or in any way or manner create any employer-employee
relationship between the parties.
10. The Scientific Founder agrees that he will not at any time publish
or disclose to others or use for his own benefit or the benefit of others any of
the Company's Proprietary Information (as defined below) without the prior
written consent of the Company. Upon termination of this Agreement, or at any
other time upon request by the Company, the Scientific Founder shall return to
the Company any and all documents (including all copies and reproductions)
and/or materials relating to the business of the Company, including without
limitation, all records, files, memoranda, notes, designs, data, reports,
drawings, plans, software documentation, sketches, laboratory and research
notebooks. Such written records shall remain the sole property of the Company.
The Term "Proprietary Information" shall mean any and all confidential and/or
proprietary knowledge, data or information of the Company, or any of its
clients, customers, consultants or licensors. By way of illustration but not
limitation, "Proprietary Information" includes tangible and intangible
information relating to antibodies and other biological materials, cell lines,
samples of assay components, media and/or cell lines and procedures and
formulations for producing any such assay components, media and/or cell lines,
formulations, products, processes, know-how, designs, formulas, methods,
developmental or experimental work, clinical data, improvements, discoveries,
plans for research, new products, marketing and selling, business plans, budgets
and unpublished financial statements, licenses, prices and costs, suppliers and
customers, and information regarding the skills and compensation of other
employees of the Company.
11. The Scientific Founder agrees that all Inventions shall be the sole
and exclusive property of the Company. The Scientific Founder shall promptly
disclose all Inventions to the Company and the Scientific Founder hereby assigns
and agrees to assign to the Company (or as otherwise directed by the Company)
his full right, title and interest to all Inventions relating to the Business.
The Scientific Founder agrees to execute any and all applications for domestic
and foreign patents, copyrights or other proprietary rights and to do such other
acts (including, among others, the execution and delivery of instruments of
further assurance or confirmation) requested by the Company to assign the
Invention to the Company and to permit the Company to file, obtain and enforce
any patents, copyrights or other proprietary rights in the Inventions.
3.
"Inventions" shall mean, for purposes of this Agreement,
inventions, discoveries, developments, methods and processes (whether or not
patentable or copyrightable or constituting trade secrets) conceived, made,
reduced to practice, created, written, designed or developed, authored or made,
or discovered by the Scientific Founder (whether alone or with others) as a
direct result of his consulting with the Company under this Agreement and/or as
a direct result of Proprietary Information received from the Company. In no
event, however, shall the Scientific Founder's obligations hereunder relate to
any right, title or interest the Scientific Founder may have in inventions,
discoveries, developments, methods and processes (whether or not patentable or
copyrightable or constituting trade secrets) conceived, made or discovered by
the Scientific Founder (whether alone or with others) that the Scientific
Founder is required to assign to his Principal Institution pursuant to the rules
and regulations of that Institution.
Inventions, if any, patented or unpatented, which the
Scientific Founder made prior to the commencement of his association with the
Company are excluded from the scope of this Agreement. If, in the course of the
Scientific Founder's association with the Company, he incorporates a Prior
Invention into a Company product, process or machine, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license (with rights to sublicense through multiple tiers of
sublicensees) to make, have made, modify, use and sell such Prior Invention.
Notwithstanding the foregoing, the Scientific Founder will not incorporate, or
permit to be incorporated, Prior Inventions in any Company Inventions without
the Company's prior written consent.
12. The Scientific Founder agrees that he will not make any notes or
memoranda relating to the Business of the Company otherwise than for the benefit
of the Company and will not at any time use or permit to be used any such notes
or memoranda otherwise than for the benefit of the Company.
13. To the extent permitted by law, the Company shall indemnify and
hold the Scientific Founder harmless from and against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative) to which he becomes a party or is threatened to be made a party
by reason of any status, service, action or failure to act on his part in his
capacity as a Scientific Founder hereunder to, or as an agent or promoter of, or
otherwise on behalf of the Company, whether before or after the date hereof, but
only to the extent directors and officers are indemnified and held harmless
under the certificate of incorporation of the Company as of today in effect. The
Scientific Founder shall not, without the consent of the Company, settle an
action, suit or proceeding as to which the Company has undertaken to indemnify
the Scientific Founder for all expenses in the defense thereof. The Company
shall not unreasonably withhold payment of expense incurred by the Scientific
Founder in the defense of an action, suit, or proceeding subject to this
Paragraph 13 or of amounts paid in settlement of such an action, suit or
proceeding in accordance with this Paragraph 13. Without limiting or expanding
the foregoing, the Company shall indemnify and hold the Scientific Founder
harmless from any expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him as a result
of product liability claims arising from the use by the Company of any
inventions transferred by the Scientific Founder to the Company or Services
rendered to the Company by the Scientific Founder hereunder. The Scientific
Founder agrees to promptly notify the Company of any claim or action subject to
the indemnification provisions of
4.
this Paragraph 13 and to cooperate with the Company in the defense thereof. The
Company shall have the right to settle any such claim for which the Scientific
Founder is to be fully indemnified.
14. The Scientific Founder agrees that any breach of this Agreement by
him could cause irreparable damage to the Company and that in the event of such
breach the Company shall have the right to obtain injunctive relief, including,
without limitation, specific performance or other equitable relief to prevent
the violation of his obligations hereunder. It is expressly understood and
agreed that nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available for such breach or threatened
breach, including, without limitation, the recovery of damages by the Company.
15. The Services to be rendered by the Scientific Founder are personal
in nature. The Scientific Founder may not assign or transfer this Agreement or
any of his rights or obligations hereunder except to a corporation of which he
is the sole stockholder. In no event shall the Scientific Founder assign or
delegate responsibility for actual performance of the Services to any other
natural person.
16. If either party breaches in any material respect any of its
material obligations under this Agreement, in addition to any other remedy, the
non-breaching party may terminate this Agreement in the event that the breach is
not cured within sixty (60) days after receipt by the breaching party of
written notice of such breach.
17. The Scientific Founder agrees to submit to the Company, in
sufficient time to enable the Company to ascertain whether a manuscript to be
published contains Proprietary Information and/or discloses a potentially
patentable invention to which the Company has rights, an early draft of such
manuscript if such manuscript contains information as to specific areas of the
Business designated by the Company as to which the Scientific Founder is
providing active Services. The Scientific Founder shall cooperate with the
Company in this respect and shall delete from the manuscript any Proprietary
Information of the Company as requested by the Company and shall assist the
Company as requested by the Company in filing for patent protection (prior to
publication of such manuscript) for any inventions in and to which the Company
has rights. Notwithstanding the foregoing, the obligations of the Scientific
Founder under this Paragraph 17 shall not apply to the publication of
information relating to inventions, discoveries, developments, methods and
processes that the Scientific Founder is not required to assign to the Company
under Paragraph 11 hereof.
18. The Scientific Founder represents and warrants that to the best of
his knowledge that he is permitted to enter into this Agreement and perform the
obligations contemplated hereby and that this Agreement and the terms and
obligations hereof are not inconsistent with any other obligation he may have.
The Scientific Founder further represents and warrants that his performance of
all of the terms of this Agreement does not and will not breach any agreement to
keep in confidence proprietary or confidential information, knowledge or data
acquired by him in confidence or in trust prior to the commencement of this
Agreement. Additionally, the Scientific Founder warrants that he will not
disclose to the Company or induce the Company to use any confidential or
proprietary information belonging to any current or previous employer or others.
5.
If the Scientific Founder is aware of circumstances under which the
Company may not be free to use his information without liability of any kind, or
the use of which by the Company would result in a possible infringement of one
or more unexpired patents or other proprietary rights known to the Scientific
Founder, then he agrees to disclose such circumstances to the Company and, upon
disclosure of such circumstances, the Scientific Founder shall be under no
obligation to disclose further related information to the Company.
19. All notices and other communications hereunder shall be delivered
or sent by registered or certified mail, return receipt requested, addressed to
the party at the address herein set forth, or to such other address as such
party may designate in writing to the other.
20. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors and permitted
assigns. The Scientific Founder agrees that the Company may assign this
Agreement to any person or entity controlled by, in control of, or under common
control with, the Company.
21. This Agreement, that certain Proprietary Information and Inventions
Agreement of even date herewith and that certain option grant to purchase shares
of the Company's common stock, constitute the entire Agreement between the
parties as to the subject matter hereof. No provision of this Agreement shall be
waived, altered or canceled except in writing signed by the party against whom
such waiver, alteration or cancellation is asserted. Any such waiver shall be
limited to the particular instance and the particular time when and for which it
is given.
22. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
23. The invalidity or unenforceability of any provision hereof as to an
obligation of a party shall in no way affect the validity or enforceability of
any other provision of this Agreement, provided that if such invalidity or
unenforceability materially adversely affects the benefits the other party
reasonably expected to receive hereunder, that party shall have the right to
terminate this Agreement. Moreover, if one or more of the provisions contained
in this Agreement shall for any reason be held to be excessively broad as to
scope, activity or subject so as to be unenforceable at law, such provision or
provisions shall be construed by limiting or reducing it or them, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
24. Any use of the masculine gender herein shall apply equally to the
feminine.
6.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a sealed instrument as of this 11TH day of MARCH, 1998.
VERSICOR INC.
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
By /s/ XXXXXX X. XXXXXX III
---------------------------------
Xxxxxx X. Xxxxxx, III
Chief Executive Officer
/s/ XXXXXXXXXXX X. XXXXX
--------------------------------
Xxxxxxxxxxx X. Xxxxx
Address:
Harvard Medical School
Dept. of Biological Chemistry & Molecular Pharmacology
000 Xxxxxxxx Xxxxxx
Xxxxxx XX 00000
7.
Exhibit A
XXXXXXXXXXX X. XXXXX:
AFFILIATIONS WITH OUTSIDE ORGANIZATIONS
---------------------------- --------------------- ------------------------------------ ------------------
CONSULTING ROLE DATE OF
COMPANY SCIENTIFIC AREA IN COMPANY INVOLVEMENT
---------------------------- --------------------- ------------------------------------ ------------------
Caliper Technologies BioAssay Development Scientific Advisory Board 3/15/97
---------------------------- --------------------- ------------------------------------ ------------------
Diacrin Immuno-therapeutics Board of Directors 5/1/97
---------------------------- --------------------- ------------------------------------ ------------------
Phage library
Dyax display technology Scientific Advisory Board 3/1/97
---------------------------- --------------------- ------------------------------------ ------------------
Epix Medical, Inc. MRI Scientific Advisory Board 10/1/96
---------------------------- --------------------- ------------------------------------ ------------------
HealthCare Investment
Corporation Venture Capital Scientific Advisory Board 1/1/96
---------------------------- --------------------- ------------------------------------ ------------------
Combinatorial Scientific Advisory Board;
KOSAN Biosciences Biosynthesis Board of Directors 1/1/96
---------------------------- --------------------- ------------------------------------ ------------------
Scientific Advisory Board;
LeukoSite Inc. Chemokine Receptors Board of Directors 1/1/96
---------------------------- --------------------- ------------------------------------ ------------------
Chair, Scientific Advisory
Millenium Pharmaceuticals Functional Genomics Board 7/1/97
---------------------------- --------------------- ------------------------------------ ------------------
