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EXHIBIT 10.49
DIRECTORSHIP AGREEMENT
THIS DIRECTORSHIP AGREEMENT ("Agreement") is entered into as of December
15th, 1996 (the "Effective Date"), by and between Xxxxxx Xxxxx ("Director") and
IRORI, a California Corporation ("IRORI")
Director and IRORI agree as follows:
1. Description of Services. IRORI hereby retains Director and Director
hereby agrees to serve as a member of IRORI's Board of Directors and to
perform the advisory services and other duties associated with such a
position.
2. Compensation.
A. Director's Fee. IRORI shall pay Director one thousand five
hundred dollars ($1500.00) per each full business day that
Director performs his duties as a director, payable within
thirty (30) days. IRORI shall calculate in good faith the number
of days worked by Director.
B. Option Grant. IRORI shall issue to Director a non-statutory
stock option to purchase ten thousand (10,000) shares of Common
Stock pursuant to its 1995 Stock Option/Stock Issuance Plan upon
the execution of this Agreement and the form of Option Agreement
attached hereto as Exhibit A.
C. Expenses. IRORI shall reimburse Director for reasonable
expenses actually incurred which are incidental to the services
performed hereunder and which are consistent with IRORI's
standard policy for reimbursement.
D. Invoices. Director shall provide IRORI with monthly invoices
detailing the expenses and reimbursements which Director
believes are due under this Agreement Invoices should specify
the period for which compensation is claimed. Travel costs and
other expenses claimed must be itemized. IRORI agrees to pay
approved invoices within thirty (30) days of receipt.
3. Independent Contractor. Director's relationship with IRORI shall be
that of an independent contractor and nothing in this Agreement shall be
construed to create an employer-employee relationship between IRORI and
Director. IRORI agrees that during the time Director serves on IRORI's
Board of Directors, Director may be employed by other persons, firms or
corporations engaged in the same or similar business as that of IRORI,
provided, however, that the provisions of this Agreement shall be
strictly observed by Director with respect to such other persons, firms,
or corporations. Since Director will not be an employee of IRORI, it is
understood that Director will not be entitled to any of the benefits
under IRORI's retirement or group insurance plans or any other employee
benefits. Director is solely responsible for all taxes, withholdings,
and other similar statutory obligations, including, but not limited to,
Workers Compensation Insurance, Social Security, federal, state, or any
other employee payroll taxes; and
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Director agrees to defend, indemnify and hold IRORI harmless from any
and all claims made by any entity on account of an alleged failure by
Director to satisfy any such tax or withholding obligations. In the
performance of all services hereunder, Director shall comply with all
applicable laws and regulations.
4. No Conflict with existing Agreements. IRORI hereby states that IRORI
does not desire to acquire from Director any secret or confidential
know-how or information which Director may have acquired from others.
Accordingly, Director represents and warrants that Director is free to
divulge to IRORI, without any obligation to, or violation of any .right
of others, any and all information, practice or techniques which
Director will describe, demonstrate, divulge or in any other manner make
known to IRORI during Director's performance of services hereunder.
Director shall exonerate, indemnify and hold harmless IRORI from and
against any and all liability, loss, cost, expense, damage, claims or
demands for actual or alleged violation of the rights of others in any
trade secret know-how or other confidential information by reason of
IRORI's receipt or use of the services or information described above,
or otherwise in connection therewith.
5. Non-Disclosure and Non-Use. The parties hereto acknowledge that
during the course of Director's services to IRORI pursuant to this
Agreement it may become necessary or desirable for IRORI to disclose to
Director a substantial amount of IRORI Proprietary Information.
"Proprietary Information" is information that was or will be developed,
created, or discovered by or on behalf of IRORI, or which becomes or
will become known by, or was or is conveyed to IRORI which has
commercial value in IRORI's business. "Proprietary Information"
includes, but is not limited to, information operations and maintenance,
trade secrets, cell-lines, design, technology, ideas, know-how,
processes, formulas, compositions, data, techniques, improvements,
inventions (whether patentable or not), works of authorship, business
and product development plans, customers and other information
concerning IRORI's actual or anticipated business, research or
development or which is received in confidence by or for IRORI from any
other person. "Proprietary Information" does not include information
that Director demonstrates to IRORI's satisfaction, by written evidence,
is in the public domain by reason of prior publication not directly or
indirectly resulting from any act or omission of Director. Director
fully understands that the maintenance of such Proprietary Information
in strict confidence and the confinement of its use to IRORI is of vital
importance to IRORI. Director agrees that the Proprietary Information
divulged to Director by IRORI or which Director acquires in connection
with or as a result of Director's services hereunder shall be regarded
by Director as confidential. Director shall not use, nor shall Director
disclose, any Proprietary Information to any person either during or
after the period of this Agreement, except to those employees of
Director or IRORI as may be necessary in the regular course of
Director's duties hereunder, or except as otherwise authorized in
writing by the President of IRORI.
6. IRORI Materials. Director recognizes that all IRORI Materials made or
received by Director during the period of this Agreement are and shall
be the exclusive property of IRORI, and Director shall keep the same at
all times in Director's custody and subject to Director's control, and
shall surrender the same to IRORI immediately upon request of IRORI.
"IRORI Materials" are documents or other media or tangible items that
contain
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or embody Proprietary Information or any other information concerning
the business, operations, or plans of IRORI, whether such documents have
been prepared by Director or by others. "IRORI Materials" include, but
are not limited to, blueprints, drawings, photographs, charts, graphs,
notebooks, customer lists, computer disks, tapes or printouts, sound
recordings and other printed, typewritten, or handwritten documents, as
well as samples, prototypes, models, products and the like.
7. Indemnification. Director shall exonerate, indemnify and hold
harmless IRORI, its officers, agents and employees from and against any
and all liability, loss, cost, damage, claims, demands or expenses of
every kind on account of injuries (including death) to Director or loss
of or damage to Director's property arising out of or resulting in any
manner from or occurring in connection with Director's breach of his
obligations hereunder unless caused by the sole negligence of IRORI or
its servants or employees.
8. Termination. Director agrees that this Agreement may be terminated by
either IRORI or Director at any time for any reason, with or without
cause, by giving written notice to the other party; termination to be
effective upon the other party's receipt of notice. This Agreement shall
terminate automatically in the event of Director's inability for any
reason to perform Director's services or if Director is not elected for
subsequent terms by the shareholders of IRORI. Upon termination of this
Agreement, IRORI's obligation to pay any compensation, except for
services or expenses already accrued or incurred, shall forthwith cease
and terminate. Termination of this Agreement for any reason shall not
affect Director's obligations under paragraphs 4, 5, 6 and 7.
9. Remedies. Director acknowledges and agrees that a breach of this
Agreement will result in immediate, irreparable and continuing damage to
IRORI for which there will be no adequate remedy at law; and agrees that
in the event of any such breach or violation or any threatened or
intended breach or violation of this Agreement IRORI and its successors
and assigns shall be entitled to temporary, preliminary and permanent
injunctive relief and/or regaining orders enjoining and restraining such
breach or violation or such threatened or intended breach or violation
and/or other equitable relief (without needing to post any bond or other
security) in addition to such other and further relief as may be proper.
10. Amendments and Waivers. This Agreement may be modified, amended or
supplemented only by a written instrument daily executed by Director and
the President of IRORI. No term or condition or the breach thereof shall
be deemed waived, unless it is waived in writing and signed by the party
against whom the waiver is claimed. Any waiver or breach of any term or
condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term or condition. The
failure of any party to insist upon strict performance of any term or
condition hereunder shall not constitute a waiver of such party's right
to demand strict compliance therewith in the future.
11. Notices. All payments, notices, requests, demands and other
communications required or permitted hereunder shall be in writing and
shall be delivered personally (which shall include delivery by courier
or overnight delivery service) or sent by first
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class mail, postage prepaid, or sent by telecopier or other similar
facsimile transmission to the parties at their respective address set
forth below or at such other address as shall be given in writing by a
party to the other parties. Items delivered personally or by telecopier
or facsimile shall be deemed delivered on the date of actual delivery;
items sent by first class mail shall be deemed delivered three (3) days
after mailing.
If to IRORI: IRORI
00000 Xxxxx Xxxxxx Xxxxx Xx. Xxx. 000
Xx Xxxxx, XX 00000
If to
Director: Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx, XX 00000
(address)
12. Governing Law; Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of law. The
parties agree that any dispute regarding the interpretation or validity
of this Agreement shall be subject to the exclusive jurisdiction of the
state and federal courts in and for the county of San Diego, California
and each party hereby agrees to submit to the personal and exclusive
jurisdiction and venue of such courts.
13. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and
disbursements, in addition to any other relief to which such party may
be en-titled.
14. Counterparts. This Agreement may be executed in multiple copies,
each of which shall be deemed an original and all of which shall
constitute a single agreement binding on all parties.
15. Entire Agreement. This Agreement (together with documents and
agreements entered into herewith) constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings.
Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements have been made by any party, or any
one acting on behalf of any party, that are not embodied in this
Agreement with respect to the subject matter hereof.
16. Representation. By executing this Agreement Director acknowledges
that he understands and agrees that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
represents the interests of IRORI solely and that he has had the
opportunity to consult with his own attorney in connection with this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Director IRORI, a California corporation
By: /s/ Xxxxxxx Xxxx
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/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx Title: Xxxxxxx Xxxx
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CEO
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