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EXHIBIT 10.29
RIBOGENE, INC.
CONSULTING AGREEMENT
This Agreement is entered into by and between RiboGene, Inc., a California
corporation ("RiboGene"), and Xxxxx Xxxxxxxxx (hereinafter "Consultant"), this
29th day of January, 1993 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.
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
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similar items unless such expense, which shall be reasonable in amount, is
expressly authorized in writing by RiboGene's Chief Financial Officer or
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 12 months, commencing on
Feb. 1st, 1993 and terminating on Jan. 31st 1984; 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 an independent contractor with the customary and usual independence
associated therewith and he shall not 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 not 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.
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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 breach of the confidentiality portions of this
Consulting 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.
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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 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 employment 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
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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
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: Xxxxxxx Xxxxx
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Title: Acting President
Xxxxx Xxxxxxxxx
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