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EXHIBIT 10.26
RIBOGENE, INC.
CONSULTING AGREEMENT
This Agreement is entered into by and between RiboGene, Inc., a California
corporation ("RiboGene"), and Xxxxxxx Xxxxxxx (hereinafter "Consultant"), this
13th day of April, 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 in connection with any businesses or proposed
businesses which 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 such consulting or other services for any other
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 1994; 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 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 a 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 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
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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: /s/ Xxxxxxx X. Xxxxx
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Title: Acting President
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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:
2-3 days per month to be spent at RiboGene, supplemented by (limited)
telephone consultations as required.
3. COMPENSATION:
(a) Total payments: A retainer of $25,000 per annum.
(b) Stock options: Subject to the approval of RiboGene's Board of
Directors, the Consultant will also be granted options to purchase
20,000 shares of RiboGene Common Stock at fair market value on the
date of the grant, subject to a four-year vesting schedule and
other terms and conditions set by the Board of Directors.
(c) Expenses authorized by 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 payments: The retainer will be paid on a monthly
basis or if requested by Consultant on a later date at his convenience.
For out-of-pocket expenses, the Consultant will submit expense claims,
with receipts, within thirty (30) days of such expenses being incurred.
SIGNATURES: Consultant:
RiboGene:
