DIRECTOR AGREEMENT
Exhibit 10.34
THIS DIRECTOR AGREEMENT (“Agreement”) is dated for reference
purposes only as of this 8th day of November 2006, by and between XXXXXX
X. XXXXXXXXXX (the “Director”) and OCULUS INNOVATIVE SCIENCES, INC.,
a California corporation (the “Company”), and, subject to the prior
amendment of Section 2.10 of the Bylaws, shall become effective as of the
date the requisite affirmative vote of the holders of Series A Preferred
Stock of the Company in favor of the election of Director shall be
obtained (the “Effective Date”) .
WHEREAS, the Company is engaged in the business of
developing and manufacturing products for the anti
-infection and wound management markets ;
WHEREAS, as of the Effective Date, the Director will be a duly
elected director of the Company;
WHEREAS, the Company and the Director desire that the confidentiality
obligations of the Director and the indemnification obligations of the
Company be memorialized by this Agreement; and
WHEREAS, the Company desires that the Director be compensated
for his services to the Company by the granting of options to purchase
the stock of the Company on the terms provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Director
Availability. The Director shall make himself
reasonably available to attend the noticed meetings of the Board of
Directors of the Company at the Company’s Petaluma offices, and if not
practicable, by telephone conference call. The Director shall make himself
reasonably available to the officers of the Company for purpose of general
consultation in connection with the business of the Company.
2. Competing Activities. While a director of the Company, the
Director shall not engage in any other employment, occupation, consulting or
other business activity that is directly competitive with the business of
the Company.
3. Covenant Not to Solicit. For the period beginning on the
date hereof and ending on the date one (1) year after the completion or
termination of the Director’s engagement with the Company, the Director
shall not either directly or indirectly solicit, induce, recruit or
encourage any of the Company’s employees to leave their employment, or
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take away such employees, or attempt to solicit, induce, recruit, encourage or take
away employees of the Company, either for the Director or for any other person or
entity.
4. Confidential Information. The Director acknowledges that during the
course of his engagement with the Company that he will produce and have
access to information relating to personnel, sales, forecasts, customers and
financial, operational and scientific matters of the Company, whether
developed by the Director or by others (collectively, “Confidential
Information”). The Director understands that any and all Confidential
Information is received or developed by him and is disclosed to him in
confidence, and is to be used only for the purposes for which it is provided.
During the term of his engagement with the Company or thereafter, the
Director shall not directly or indirectly, except as required by the normal
business of the Company or expressly consented to in writing by the Board of
Directors of the Company: (i) disclose, publish or make available any
Confidential Information, other than to an employee, officer or director of
the Company who, in the reasonable exercise of the Director’s judgment, needs
to know such Confidential. Information in order to perform his duties to the
Company; (ii) sell, transfer or otherwise use or exploit or permit the sale,
transfer, use or exploitation of the Confidential Information for any
purposes other than those for which they were provided; or (iii) remove from
the Company’s premises or retain upon termination of his engagement any
Confidential Information, any copies thereof or any tangible or retrievable
materials containing or constituting Confidential Information. The Director
further agrees that all files, letters, memos, reports, sketches, drawings,
customer lists, telephone lists or other written material containing
Confidential Information which shall come into his possession shall be the
exclusive property of the Company to be used only in the performance of
Company duties. All such written materials shall be delivered to the Company
upon termination of the Director’s engagement with the Company.
The restrictions on the use or disclosure of Confidential
Information shall not apply to any information that the Director can
document is or was: (i) independently developed by the Director prior to
the time of disclosure; (ii) in the public domain without breach of this
Agreement and through no fault of the Director; (iii) at the time of
disclosure to the Director properly known to such party free of restriction
or lawfully received free of restriction from another source having the
right to so furnish such information; or (iv) which the Company agrees in
writing is free of such restrictions.
5. Equitable Remedies. The Director agrees that it would be
impossible or inadequate to measure and calculate the Company’s damages from
any breach or threatened breach of the covenants set forth in sections 2, 3,
and 4 of this Agreement. Accordingly, the Director agrees that in the event
of any alleged breach or threatened breach of those sections, the Company
will have available, in addition to any other right or remedy available, the
right to obtain an injunction from a court of competent jurisdiction
restraining such alleged breach or threatened breach.
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6. Company Stock Options. As partial compensation for Director’s
services to the Company, the Director shall be granted an option to purchase
300,000 fully vested shares of Common Stock of the Company at an exercise price
of Three dollars and Twenty Five cents ($3.25) per share (the “Stock Options”).
The Stock Options must be exercised within ten (10) years after the date on which
the last vesting of the Stock Options occur; provided, however, that if the
Director is requested to resign for cause (as defined below) or is removed for
cause (as defined below), the Stock Options must be exercised, in whole or in
part, within thirty (30) days of such resignation or removal.
The Stock Options and the underlying shares shall be subject to
certain restrictions and legends as shall be specified in any documents
authorizing such Stock Options and shares. The Stock Options and the
underlying shares shall not be issued unless the issuance and delivery of
such Stock Options and shares shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933, as amended,
the Securities Exchange Act of 1934, as amended, the rules ad regulations
promulgated thereunder, and the requirements of any stock exchange or
quotation system upon which the underlying shares may then be
listed or quoted, and shall be further subject to the approval of counsel
for the Company with respect to such compliance. Inability
of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be
necessary to the lawful issuance of any underlying shares hereunder, shall
relieve the Company of any liability in respect of the non-issuance of
such Stock Options and shares as to which such requisite authority shall
not have been obtained.
7. Expenses. The Director shall be entitled to reimbursement of his
reasonable expenses incurred on behalf of the Company and reimbursement to the
Director shall be due and made against an itemized list of such expenses. Any
expenses in excess of $100 shall require the prior approval of the Company.
8. Indemnification. The Company will indemnify and defend the
Director against any liability incurred in the performance of his services to
the Company to the fullest extent authorized in. Company’s Articles of
Incorporation, bylaws, and applicable law. The Company has purchased
Director’s and Officer’s liability insurance, and Director shall be entitled
to the protection of any insurance policies the Company maintains for the benefit of its directors and officers against all costs, charges and expenses
in connection with any action, suit or proceeding to which he may be made a
party by reason of his affiliation with the Company, its subsidiaries, or
affiliates.
9. Assignment by Director. This Agreement is personal, and
the Director’s rights and obligations under this Agreement are not and
shall not be transferable by assignment or otherwise. Any attempted
assignment in violation of this section 9 shall be voidable at the
Company’s option and shall entitle the Company to terminate the
Agreement.
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10. Assignment by the Comp. Nothing in this Agreement
shall prevent the consolidation of the Company with, or its merger
into, any other corporation or the assignment by the Company of this Agreement
and the performance of its obligations hereunder to any affiliated company.
If the Company shall merge into, sell, as sign or transfer
its operations to any successor, the Company shall have the right to assign all of
its right, title and interest in this Agreement to such successor; provided,
however, that such successor assumes and agrees to perform, from and after the
date of such assignment, all of the terms, conditions and provisions imposed
by this Agreement upon the Company. In the event of such an assignment by the
Company and of such assumption and agreement by a successor, all further rights,
as well as all further obligations, of the Company under this Agreement shall
cease and terminate, and thereafter, the term “the Company” wherever used herein
shall be deemed to refer to such. successor or assignee. This Agreement shall
inure to the benefit of, and be enforceable by, any corporate
successor to or assignee of the Company.
11. Notice. Any notice to be given to the Company under
the terms of this Agreement shall be addressed to the Company
at the address of its principal place of business, and any notice to be
given to the Director shall be addressed to him at his home address last
shown on the records of the Company, or at such other address as either
party may hereafter designate in writing to the other. Any such notice shall
be deemed to have been duly given when enclosed in a properly sealed and
addressed envelope, registered or certified, and deposited (postage and
registry or certification. fee prepaid) in a post office or branch post
office regularly maintained by the United States government.
12. Construction. The provisions of this Agreement are
divisible and, so far as they are covenants not to compete, shall be operative to the extent, both as to time and area covered, that they may be made
so applicable; if any provisions, or any part hereof, are declared invalid
or unenforceable, the validity and enforceability of the remainder of such
provisions, or parts hereof, and the applicability hereof shall not be
affected thereby.
13. Waiver. Waiver of any term or condition contained in this
Agreement-by any party to this Agreement shall not be construed as a waiver
of a subsequent breach or failure of the same term or condition or a waiver
of any other term or condition contained in this Agreement.
14. Applicable Law. The provisions of this Agreement shall be interpreted
under, and performance of the parties hereto shall be governed by, the laws of the
State of
California.
15. Amendments. The provisions of this Agreement may be waived, amended,
modified, or repealed, in whole or in part, only on the written consent of all parties
to this
Agreement.
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16. Survival. The respective obligations and covenants of the parties
under this Agreement which shall by their nature extend beyond the expiration or
termination of this Agreement, including, without limitation, the confidentiality
and non -solicitation obligations of the Director and the indemnification
obligations of the Company, shall survive the termination or expiration of
this Agreement.
17. Headings. The headings throughout this Agreement are
for the convenience and reference purposes only and shall not be deemed to
expand, modify, amplify, or aid in the interpretation, construction,
or meaning of any provision of this Agreement.
18. Entire Agreement. The terms of this Agreement are
intended by the parties as a final expression of their agreement with respect
to such terms as are included in this Agreement, and such terms may not be
contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Agreement constitutes the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever
may be introduced in any judicial proceedings, if any, involving this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused
this Agreement to be executed as of the Effective Date.
| The Director: | The Company: | ||||||||
| Oculus Innovative Sciences, Inc. | |||||||||
| /s/ Xxxxxx X. Xxxxxxxxxx | a California Corporation | ||||||||
| Xxxxxx X. Xxxxxxxxxx | |||||||||
| By: | /s/ X. Xxxxx | ||||||||
| Its: | President | ||||||||
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