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EXHIBIT 10.27
RIBOGENE, INC.
CONSULTING AGREEMENT
This Agreement is entered into by and between RiboGene, Inc., a California
corporation ("RiboGene"), and Xxx X. Xxxxxxx, Ph.D. (hereinafter "Consultant"),
this 11th day of July, 1997 at Hayward, California.
In consideration of the mutual promises contained herein, the parties hereto
agree as follows:
SECTION 1: CONSULTING
1.1 Services. Consultant shall render consulting services in the area
of the discovery and development of translation-targeted therapeutics
(hereinafter his "Duties"). He shall consult with the Board of Directors,
officers, and department heads of RiboGene, and such other personnel as
designated by the President of RiboGene, in regard to his Duties.
1.2 Project Designation. Consultant shall work on a per project
basis. Upon identification of a project to be performed by Consultant during
the term of this Agreement, RiboGene shall prepare a Project Designation in the
form attached hereto and marked Exhibit A (the "Designation") which shall detail
the scope, duration and payment terms for the project, the Designation shall be
signed by the parties and attached hereto. Consultant's employment with respect
to such project shall thereafter be governed by this Agreement as supplemented
and/or amended by the terms and conditions set forth in the Designation.
1.3 Services for Others. Consultant shall be free to represent or
perform services for other persons during the term of this Agreement, provided
that performance of such services does not interfere with Consultant's Duties
under this Agreement. However, Consultant agrees that he does not presently
perform and does not intend to perform, during the term of this Agreement,
consulting or other services for companies whose businesses or proposed
businesses in any way involve the design or use of products which are or would
be competitive with the products or proposed products of RiboGene (except for
companies previously disclosed by Consultant to RiboGene in writing). Should
Consultant propose to perform consulting or other services for any such
company, he agrees to notify RiboGene in writing in advance (specifying the
name of the organization for whom he proposes to perform such services) and to
provide information to RiboGene sufficient to allow it to determine if the
performance of such services would conflict with areas of interest to RiboGene,
or any further services that RiboGene might request of Consultant under this
Agreement. Nothing herein shall be interpreted to supercede Consultant's
duties or restriction as an employee of the National Cancer Institute.
1.4 Payment. RiboGene agrees to pay Consultant for his services to be
rendered under this agreement in accordance with the payment terms set forth on
each Project Designation. RiboGene shall not be responsible for payment of
Consultant's expenses in the performance of his Duties including, but not
limited to, expenses for travel and similar items unless such expense, which
shall be reasonable in amount, is expressly authorized in writing by RiboGene's
Chief
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Financial Officer of Controller, prior to the incurring of such expenses, or is
permitted under the terms of a project Designation. RiboGene will reimburse
Consultant upon the presentation by Consultant, from time to time, of a
detailed and itemized account of such expenses substantiated by receipts.
1.5 Term. This Agreement shall be for a period of 9 months commencing
on May 1st, 1997 and terminating on January 31,1998; however, this Agreement
may be terminated at any time by either party by 30 days' written notice to
the other party.
1.6 Independent Contractor. The Consultant's services are to be
performed as a independent contractor with the customary and usual
independence associated therewith and he shall be deemed to be an employee of
RiboGene or to otherwise bind RiboGene to any agreement unless expressly
authorized in writing to do so. Consultant shall be responsible for payment of
all income, social security and other taxes incurred by him as a self-employed
person.
1.7 No Assignment. Because of the personal nature of the services to
be rendered by Consultant, this agreement may be assigned by Consultant without
the prior written consent of RiboGene.
SECTION 2: CONFIDENTIALITY
In consideration of his access to the premises of RiboGene and/or his
access to certain Confidential Information of RiboGene, in connection with his
business relationship with RiboGene, Consultant hereby represents and agrees as
follows:
2.1 Confidential Information. For purposes of this Agreement the term
"Confidential Information" means:
(i) Any information which RiboGene possesses that has been
created, discovered or developed by or for RiboGene, and which has or could
have commercial value or utility in the business in which RiboGene is engaged;
or
(ii) Any information which is related to the business of
RiboGene and is generally not known by non-RiboGene personnel.
By way of illustration, but not limitation, Confidential Information includes
trade secrets and any information concerning products, processes, formulas,
designs, inventions (whether or not patentable or registrable under copyright or
similar laws, and whether or not reduced to practice), discoveries, concepts,
ideas, improvements, techniques, methods, research, development and test
results, specifications, data, know-how, software, formats, marketing plans, and
analyses, business plans and analyses, strategies, forecasts, customer and
supplier identities, characteristics and agreements.
2.2 Exclusions. Notwithstanding the foregoing, the term Confidential
Information shall not include:
(i) Any information which becomes generally available to the
public other than as a result of a breach of the confidentiality portions of
this Consulting
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Agreement, or any other agreement requiring confidentiality between
RiboGene and the Consultant;
(ii) Information received from a third party in rightful
possession of such information who is not restricted from disclosing such
information; and
(iii) Information known by the Consultant prior to his
receipt of such information from RiboGene which prior knowledge can be
documented.
2.3 Documents. Consultant agrees that, without the express written
consent of RiboGene, he will not remove from RiboGene's premises, any notes,
formulas, programs, data, records, machines or any other documents or items
which in any manner contain or constitute Confidential Information - nor will
he make reproductions or copies of same. In the event Consultant receives any
such documents or items by personal delivery from any duly designated or
authorized personnel of RiboGene, he shall be deemed to have received the
express written consent of RiboGene. In the event that Consultant receives any
such documents or items, other than through personal delivery as described in
the preceding sentence, he agrees to inform RiboGene promptly of his possession
of such documents or items. Consultant shall promptly return any such documents
or items, along with any reproductions or copies to RiboGene upon RiboGene's
demand or upon termination of this Agreement.
2.4 No Disclosure. Consultant agrees that he will hold in trust
and confidence all Confidential Information and will not disclose to others,
directly or indirectly, any Confidential Information or anything relating to
such information without the prior written consent of RiboGene, except as may
be necessary in the course of his business relationship with RiboGene. He
further agrees that he will not use any Confidential Information without the
prior written consent of RiboGene, except as may be necessary in the course of
his business relationship with RiboGene, and that the provisions of this
Section 2.4 shall survive termination of this Agreement.
2.5 Patents, Copyrights. Consultant acknowledges and agrees that
all Confidential Information existing or developed by or for RiboGene shall be
the sole property of RiboGene, and RiboGene shall be the sole owner of all
patent, copyright and other rights and protections in connection therewith. He
hereby assigns to RiboGene all right, title and interest that he may have to or
acquire in all such Confidential Information. Upon learning of any Confidential
Information not already disclosed to RiboGene during the term of this
Agreement, he agrees that he will promptly disclose such Confidential
Information to RiboGene.
2.6 Ownership. Consultant agrees that all Confidential Information
which is related to or which results from work performed by Consultant for
RiboGene ("Inventions") shall be the sole and exclusive property of RiboGene or
its nominees. RiboGene and its nominees shall have the right to use and/or to
apply for patents, copyrights or other statutory or common law protections for
such Inventions in any and all countries. Consultant further agrees (i) to
assist RiboGene in every proper way to obtain and from time to time to enforce
such patents, copyrights and other rights and protections relating to
Inventions, and (ii) to execute and deliver to RiboGene or its nominee upon
request all such documents as RiboGene or its nominee may determine are
necessary or may be necessary to: (a) vest in RiboGene or its nominee clear and
marketable title in and to Inventions, (b) apply for, prosecute and obtain
patents, copyrights and other rights and protections
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relating to Inventions, or (c) enforce patents, copyrights and other rights and
protections relating to Inventions.) Consultant's obligations pursuant to this
Section shall continue beyond the termination of his employment with RiboGene,
but RiboGene agrees to compensate him after the termination of employment at a
reasonable rate for time actually spent or expenses incurred by him at
RiboGene's request.
2.7 Limits of Application. Consultant has been informed and
understands that the provisions of Section 2.5, above, do not apply to any
Invention that qualifies in all respects under Section 2870 of the California
Labor Code, which provides:
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
2.8 No Conflicting Agreements. Consultant represents that he has not
brought, and will not bring with him to RiboGene, and will not use in the
performance of his responsibilities for RiboGene, any materials or documents of
a former employer that are not generally available to the public, unless he has
obtained the express written consent of his former employer for their possession
and use. Moreover, he represents that his performance of this Agreement and as a
consultant of RiboGene does not and will not breach any agreement or
relationship of trust and confidence he may have with any third party, whether
oral, written or implied. He agrees that he has not entered into and will not
enter into any agreement in conflict with this Agreement.
2.9 Remedies. Consultant understands that, in the event he fails to
comply with Section 2.2 through 2.6 of this Agreement, RiboGene may suffer
irreparable harm which may not be adequately compensated by monetary damages.
Accordingly, he agrees that, in the event of his breach or threatened breach of
the terms of those Sections, RiboGene shall be entitled to injunctive or other
preliminary or equitable relief in addition to such other remedies as may be
available to RiboGene for such breach or threatened breach, including damages.
SECTION 3: MISCELLANEOUS
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3.1 Actions: Expenses. In the event of any action at law or in equity
to enforce the provisions of this Agreement, the unsuccessful party shall pay
to the other all costs and expenses so incurred, including attorneys' fees.
3.2 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California.
3.3 Entire Agreement; Amendment; Waiver. This Agreement expresses the
entire understanding with respect to the subject matter hereof and supersedes
and terminates any prior oral or written agreements with respect to the subject
matter hereof. Any term of this Agreement may be amended and observance of any
term of this Agreement may be waived only with the written consent of the
parties hereto. Waiver of any term or condition of this Agreement by any party
shall not be construed as a waiver of any subsequent breach or failure of the
same term or condition or waiver of any other term or condition of this
Agreement. The failure of any party at any time to require performance by any
other party of any provision of this Agreement shall not affect the right of
any such party to require future performance of such provision or any other
provision of Agreement.
Consultant and RiboGene hereby accept and agree to the above terms and
acknowledge receipt of a copy of this Agreement.
RIBOGENE, INC.
By: XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Ph.D.
Vice President of Research
[SIG]
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Consultant
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PROJECT DESIGNATION
1. DESCRIPTION OF PROJECT:
Provide advice, direction and encouragement to RiboGene staff engaged on
discovery and development of translation-targeted therapeutics. This
will require input from the Consultant at a variety of levels, ranging
from the strategic direction of RiboGene's program down to
interpretation of experimental observations.
2. TIME DEVOTED TO PROJECT:
9 days this 9-month period to be spent as requested by Vice President of
Research or designee, supplemented by (limited) telephone consultations
as required.
3. COMPENSATION:
(a) Rate of pay: A retainer of $1,000 will be paid each month.
(b) Total payments: $9,000 over the course of this contract.
(c) Expenses authorized for reimbursement by RiboGene: Reasonable
out-of-pocket expenses incurred in connection with visits to RiboGene
and with other consulting assignments agreed in advance with an officer
of the Company.
(d) Invoice submission and payment: The monthly retainer will be paid
automatically by RiboGene on the first day of each calendar month. For
out-of-pocket expenses, the Consultant will submit expense claims, with
receipts, within thirty (30) days of such expenses being incurred.
(e) Additional compensation: As requested by the Company's Vice
President of Research, Consultant may provide services in excess of 9
days per this contract period. Once Consultant has worked the minimum 9
day requirement, compensation for additional days will be at the rate of
$1,000 per day plus expenses as mentioned in (c).
SIGNATURES: Consultant [SIG]
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RiboGene [SIG]
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